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Jury deliberates on BART officer shooting

Jurors in the trial of Johannes Mehserle resumed their deliberations today. Meheserle was an Oakland transit police officer who shot and killed a black passenger, Oscar Grant, last year, as depicted in this video. The jury is in the process of deciding whether Mehserle will be guilty of second degree murder or voluntary or involuntary manslaughter.

The jury will not be considering a first degree murder charge because the judge ruled there was not enough evidence to convict Mehserle of first degree murder, although I would disagree. 

Murder as defined by California penal code section 187 is as "the unlawful killing of a human being, or a fetus with malice aforethought..."  The provision goes on to carve out exceptions for abortion, and section 188 explains that "malice may be express or implied.  It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."

The video depicts very clearly that Mehserle deliberately shot the subject, who was struggling, but was lying flat on the ground.  Mehserle's defense was that he mistakenly shot the victim instead of using his taser while trying to handcuff the victim (about 0:58 of the video).

However, this is questionable. The video shows Mehserle leaned over the victim at first; he then distances himself from Mr. Grant, shoots, and looks up, then back down. There is no indication of surprise, shock or mistake. Similarly, there are no gestures or actions from the officer whose back is facing the camera indicating shock,or that the action taken was an accident.

Thus, there is at least some evidence that the provocation was not "considerable" (who in the right mind thinks a man lying on the ground, outnumber by armed men, is a considerable provocation?) or, that the "circumstances attending the killing show[ed] an abandoned and malignant heart." I would think the argument certainly can be made that Mehserle manifested a deliberate intention unlawfully to take away the life of a fellow creature. 

On the other hand, voluntary manslaughter is appropriate if the defendant would otherwise be guilty of murder, but the defendant acted out of sudden passion or a burst of rage. Juries are usually instructed a voluntary manslaughter charge is only appropriate if the defendant not only was under the influence of intense emotion, but that the defendant was reasonable in that the provocation involved would have also caused an "average" person to react in the same way.

If the jury convicts Mehserle of voluntary manslaughter, our justice system indeed will be shown to be the joke that it is. I cannot think of a single person I know who would be provoked to shoot a person lying on the ground because they were wriggling around, much less conclude that the "average" person would do such a thing.

If anything, it seems much clearer there is zero evidence that Mehserle committed voluntary manslaughter, and this instruction should not have been given.

If the jury convicts Mehserle of voluntary manslaughter, rather than second degree murder, they will be sending the message that laws do not apply to police officers the way they apply to you or me.

It is no excuse to whine about how hard an officer's job is, and how difficult the circumstances they face are on a daily basis. It may be difficult to get a teaching credential and command the attention of 25+ children in a classroom, but teachers nevertheless go to jail if they molest children. No one is making excuses for the difficult job of teaching. There is no reduction of child molestation charges for teachers who engage in such despicable acts.

It is very difficult to get a law degree, but no one is defending lawyers who engage in malpractice or fraud because they suffered oh-so-hard through 7 years of additional schooling in addition to compulsory education.

It is extremely difficult to become a surgeon and constantly engage in risky surgeries, but no one thinks to cut them a break for bad results even when they make no mistakes - as evinced by the rampant incidence of frivolous medical malpractice cases all over the country. Certainly, surgeons don't get any kind of break when they recklessly kill someone.

Teachers, doctors, lawyers and other professions don't get excused for wrongdoings because society generally understands that child molestation, killing, and fraud are bad no matter how bad your day was, how hard your job is, or how much schooling you had. Being placed in a difficult situation or having a tough job simply is no excuse for killing someone for everyone else in society.

Police should be treated no differently.

This article is also posted on Copblock.org.

Comments

  • T 4 years ago

    Try being a cop before you tell everyone how it is. Do your research on the case and you will realize your view is very one sided.

  • Ron 4 years ago

    Should have written this in your personal blog.

  • JRH 4 years ago

    You really do live a sheltered life, don't you?

    I'll be the first to admit that I don't like cops (and yet in a way I am one) but what this officer did IS NOT first degree murder. I to am working on a law degree and this does not even fall in the first degree classification!

    At most the officer should get involuntary manslaughter and be fired from his job. There was no intent to shoot this young man, at the same time, this young man should have know better then to fight when being arrested. If you innocent, GREAT, prove it in court. Don't argue with the cops, they will only make the arrest more painful!

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    T - if you think it is one-sided to believe in justice, to believe that the law should apply equally to all people, and to believe that murder is wrong, I think you have some ethical quandaries you may want to ponder in your free time.

    I don't have to be a Nazi to know that it's wrong. Don't have to be a cop to know that murder is wrong either.

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    JRH - I disagree. Premeditation is not a hard standard to meet. It can be a matter of a a minute or two, as long as the act was deliberate. This guy was wriggling on the ground for a long time. Struggle ensued for quite a while. The officer pulled out a gun and deliberately shot him to death. Ask yourself for a second - if a non-uniformed person did this to a guy on the street, would you consider it murder?

    Chances are, you would. Most people who saw a man being held down for 5 minutes, then shot to death while lying on the ground, would consider themselves to have witnessed a murder. My feeling is, the only reason he isn't getting murder is because he has a badge and a uniform.

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    JRH - Premeditation means with planning or deliberation. Periods of time as short as a couple of minutes can constitute "premeditation." It must be long enough, after forming the intent to kill, for the killer to have been fully conscious of the intent and to have considered the killing.

    Are you really saying that after holding this guy down for 5 minutes, pulling out a gun, and shooting him while he was lying down, that this was.... an "accident"? Or that he did not have any conscious intent to kill? That is absurd.

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    JRN - if you think this officer should get involuntary manslaughter, there is no point even in having first or second degree murder charges. If participating in pinning someone down, drawing your gun, and shooting them while they are lying down on the ground is "involuntary manslaughter," then what exactly would constitute murder?

    A few common cases of "involuntary manslaughter" you may have learned in law school involve 1) parents who didn't take their very ill child to the doctor on time, which caused the child to die and 2) the man who locked all fire escapes in his club, and people burned to death as a result of a fire.

    Are you really saying that pinning someone down and shooting them to death is the same as not taking your child to the doctor, or forgetting to unlock your fire escape exits? This is absurd. Perhaps you are biased because of your profession.

  • Eddie Poloche 4 years ago

    Great Article!!!

  • Eddie Poloche 4 years ago

    Let me add the comparisons you used in this Article are great... I loved it when you stated that Cops should "whine" because they had a tough day. Yet a teacher seems to have a harder job. (LOVED IT!!) Cops are paid by me and you to uphold the law, not to break it. Again, very good article, I'm impressed and I will share this on my FACEBOOK profile.

  • Eddie Poloche 4 years ago

    lASTLY!!!... Let's not forget the following fact. I PROMISE YOU!!! That if this Cop was Black or Latino, and he shot a White person...lol... people would think differently, and not defend the cop as much as they are now....ooooo... Oakland is scary....LOL... Oakland is scary because you drive by it, and don't live there. Drop me off in Oakland ANYTIME, and I can survive without a badge...lol...

  • ednadurango 4 years ago

    Mr. Poloche:
    Are you somehow related to Ms. Chou?

  • Matt B 4 years ago

    Look, it doesn't matter that he was struggling, or fighting the cops. That does NOT give them the power to kill someone. Especially when they are lying on the ground. This cop should get first degree murder, no doubt, based on the facts of the case. It wasn't an "accidental shooting" (which doesn't exist only negligent shootings happen). It was cold blooded murder, and he did it because he thought he could get away with it, because of his cop buddies and all the commenters here.

    And the "you are an idiot" comments prove they only they are the idiots, since they can't defend their argument.

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    Please, instead of calling me an idiot, please justify your positions. Someone explain to me what they think murder is. Please explain to me what you think the difference is between involuntary manslaughter, voluntary manslaughter, second and first degree murder. Then cite to the penal code and explain how your view fits in with the text of the penal code.

    I have cited to penal code 187, 188, and defined voluntary and involuntary manslaughter for you, as based on jury instructions used in trials. I have cited the general agreement of what "premeditation" is. So far I have seen no rebuttal to my interpretation of code or evidence, except that police should be cut a break because they have a hard job.

  • S 4 years ago

    I have to agree with CJ...your comments are going to cause a huge mess and fuel the fire so to speak for rioters....great job!

  • PST 4 years ago

    I would expect you, Ms. Chou, to participate in the riots since you believe so strongly that this was a murder. Shame on you for being so irresponsible.

  • Juliette Fretté 4 years ago

    Jenn, I have noticed that you have written a lot of articles against law enforcement lately. And while some crappy things have happened, I feel that you might not be looking at the situation objectively. As much as it is very unfortunate that this person was accidentally shot, I do not believe that the officer did this on purpose and I definitely do not feel that he should be in prison for this. Losing his job is appropriate however. Mistakes happen and when people are confronted with a struggling gang member with a gun who will not back down, they act impulsively and instinctively. Honestly, I can imagine that a lot of people could make a mistake like that in that in a confusing timultuous situation. If we want to fix the injustices inherent within the system, there are better ways of doing it than demonizing all officers as innately corrupt. Not that you are doing this per se, but I have noticed several other media outlets promoting this trend.

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    Juliette - I believe I am the most objective of all. I have carefully read the law and applied it to the situation. The "struggling gang member with a gun" was unarmed. (www.mercurynews.com/ci_15421762?source=pkg)

    Mistakes do indeed happen, but for some reason, people, the courts, and the justice system don't think police should go to jail when mistakes happen to them. Killing someone while drunk driving is a mistake - many drunk drivers never intended to kill anyone. Accidentally locking your fire escape exits and letting people burn to death is a mistake. Not taking your child to the doctor when he is very ill is a mistake. These are all mistakes for which normal people go to prison for - yet you think the officer who made a mistake in this circumstance should not go to prison. Why is that?

  • N 4 years ago

    Wow, you (Chou) didn't take much time to watch the video. While I do agree that the officer used unnecessary force, even when he meant to go for his taser, but I not agree that he was not surprised when the gun went off. Take a closer look, not only does he look down at the gun in amazement, later he holsters his gun and puts his hands to his head in complete regret and amazement and then starts crying out that he meant to taser him. To take this officers life by convicting him of murder would by worse than than the mistake he made. He should be found guilty of manslaughter no doubt because I believe he should not have even needed his taser for that situation. But we always tend to forget the victims side of the story. And that is that he was acting like a thug involved in a huge fight on BART and had to be removed. Then when he should have cooperated with the police for a simple disorderly conduct, he began to resist. I would love to see you handle the stress of that situation

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    There is no cause to label all individual police officers, but it makes absolutely no sense to treat them differently, and to apply a different law to police officers, who are charged with upholding that very law. It's entirely illogical to do so. All the examples I cited below - of not taking a child to the doctor, or locking your fire escape exist, or drunk driving are established homicide crimes for which normal people have been, and are regularly convicted of, and go to prison for. Why is a police officer to be treated differently, merely because he has a badge and a gun? With all that training and police education, shouldn't they in fact be held to a higher standard than normal people?

  • Tim 4 years ago

    That was a very good article no matter what those with a blind eye to the facts have to say about it. But I feel sure that their opinions and attitudes would be somewhat different if that had been their son, brother or other relative laying there taking that bullet.

    I agree with them that a Police Officers job is a dangerous one but they knew that before they took it and they are well equipped with the tools to protect themselves so that issue is not quite as large as some like to think. I can tell you one job that is tougher and more dangerous and that is a firefighter.

    Form this mental picture. A cop pulls a car over and as he walks up to that vehicle he has the advantage the entire time. Now picture a fireman walking towards a burning structure so he can enter to rescue a trapped child. He doesn't have that advantage but he does have one tough and dangerous job ahead of him but you never hear him complain or remind people how dangerous it is.

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    N - I have watched the video at least 10 times. I would hardly call briefly brushing your hair back putting one's hands up in regret. Regardless, if this was a normal person, they absolutely would have been charged with first degree murder. Even if you don't believe that the officer should be CONVICTED of first degree murder, don't you find something unfair about the fact that if this had happened to a normal person, a court would have found there was "enough evidence" to instruct the jury on 1st degree, but that since it is an officer, there is not enough evidence to instruct on first degree?

  • S 4 years ago

    He has the advantage when he pulls a car over the entire time...really? You must not read about how many cops just this year have been killed by just "pulling people over"....you never know who you are walking up to. They have the advantage because they could have a gun sitting there waiting for the cop to walk up and have....you need to read more. This is off topic, but had to comment since in CA alone we have lost several officers just this year with the "advantage".....sometimes I wonder what you people are reading and where you get your info.

  • KK 4 years ago

    I agree with Ms. Chou! This cop needs to be charged with murder and suffer the consequences of his actions. They had that boy down on the ground! Two cops holding him down! There was absolutely no reason for him to be shot. And even if the cop was reaching for his tazer the big question is why?? Yes he was squirming around but he was clearly held down and could not have gotten away. That cop had no reason to reach for anything but handcuffs!! Murder is murder whether your a cop or not!! These cops get away with too much and if a riot starts it won't be because of Ms. Chou's comments. It will be because there are two many people up there with nothing better to do than to destroy their own neighborhood for something that really has nothing to do with them.

  • S 4 years ago

    he couldn't have gotten away? Or his friends sitting on the wall couldn't have grabbed one of the police officers guns? Maybe that is why he was getting what he thought was his taser out. Unfortunate? Yes. But walk a mile in someones shoes before you think you know everything.

  • CJ 4 years ago

    I noticed that you have not addressed the fact that you are contributing to the tension in Oakland. YOU are going to have to live with your part in this. There is no doubt in my mind that you, Ms. Chou, are fueling the fire here. You are talking like he has gotten off scot free. The jury is still out!!! You are a joke. Let the justice system fail before you condemn it. Regardless of the outcome, there are many people in cities all over the Bay Area that are just looking for reasons to riot. I worry for the father of my children and best friend. I fear for everyone and their safety. You make me sick! You and people like you are part of the problem. Your words have power. Power that may get more people killed. My spouse’s job is risky. I have willingly given him to YOU the people. He would take a bullet for anyone, even you Chou. Are you getting off on this? You are not creditable. You should shut your hole and actually do something to contribute to peace and harmony!I pray for peace!!

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    CJ - I don't want your spouse. I never asked for him, for his protection, his time or effort. It was forced on me through taxes. How about if I come paint your house against your will, mow your lawn when it need not be mowed, and then demand you pay me $2,000, and when you point out that you never asked for these services, and don't want to pay for them, force you at gun point to pay me? That is exactly what the government police system does.

    Blaming the riots on me is ridiculous. If one cannot point out clear injustices without being labeled as a riot instigator, this clearly is a fascist police state. People will do what they will do, and if or when they commit acts of violent rioting, they will suffer due punishment. The wrongs need to be pointed out. The injustices must be addressed.

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    CJ - I am highly committed to peace and a voluntary society. Your spouse, and you, are not. You are committed to using force and violence through taxation. You are committed to using monopolistic police forces on citizens who do not want them. You are committed to using police to tax, fine, and rob citizens through unjustified traffic stops. You are committed to using force on people who are harming no one - through the war on drugs, through traffic stops, and through "resisting arrest" charges.

    And when those monopolistic police forces "accidentally" kill someone, you want him to suffer no consequences. CJ, you are the epitome of a fascist. Your entire ideology is completely contrary to peace or respect for the dignity of your fellow human beings.

  • S 4 years ago

    so you don't need police Ms Chou???? Well good luck to you then because who is going to defend the injustices done to you or your family? Who is going to protect you when you hear someone breaking into your home? Once again good luck! If it were up to me, no one would come when you call. CJ thank you, I will take your husband, as mine to puts his life on the line to keep ALL of us safe!

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    S - what has this world come to, when you think that security is equivalent with government? Has this country really become that communist? As with food, clothing, shelter, consumer items, and other such daily necessities of life, security need not be provided by a government monopoly.

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    S - are you saying that because I am Asian? Or is that your typical response when you cannot logically rebut an argument? S, have you never had any complaints about this country? Are you happy no matter what government official is elected, and happy with the government no matter what the situation? Do you love everything Obama does, as well as everything Bush did? Unless you have never in your life been critical of anything the government has done, it is illogical to say that anyone who has disagreement with the system should leave the country.

    And of course, if you said that because I am Asian, and would not have said that in the event my skin was white, you are racist. Also illogical.

  • S 4 years ago

    I am SO not racist, in fact, I believe you brought that up so maybe it is you that is racist?? Hmmm well no I have had some things I dislike with government, but sounds to me like you are stereotyping law enforcement and that sickens me. CJ, I to will pray for peace in Oakland!! Maybe everyone else should do the same!

  • S 4 years ago

    Are you sure I am not Asian??

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    S - well, if you have a problem with stereotyping, I guess that means either all the Democrats should leave the country, or all the Republicans should. Because if you are a Dem, you basically are stereotyping all Republicans as one party, disagreeing with them, and disapproving of their actions. Vice versa if you are a Republican. So...explain to me how leaving the country helps anyone?

  • OMG 4 years ago

    Oh my God! You don't even live anywhere NEAR Oakland! What the hell? What was your opinion on the four Oakland police officers that were shot and killed by a guy pulled over for speeding? Or did you even know about it?

    Did you have a bad experience with a cop some time in your life? You work for a malpractice and personal injury law firm? LOL!!!

  • S 4 years ago

    Uhm pretty sure I have not stereotyped anyone...hence your inability to tell if I am racist, a republican or a democrat. That has nothing to do with it. I am, for the good of the country and we need police whether you like it or not. Anyway, I do not feel the need to argue any further with you, not because of an inability to, just I have wasted enough time. Your opinion is just that and you know what they say about opinions....so, good luck to you and your column because writing stuff like this, luck is probably what you are going to need. Peace!

  • T 4 years ago

    Oh, so it's ok for you to be able to voice your twisted opinion on a public website but when others challenge you their posts are deleted? Nice.

  • Jennifer Chou, Anti-Establishment Examiner 4 years ago

    I only delete posts that reference people's personal information. I have not deleted any other posts. I am all for free discourse, but I delete comments containing personal information. Thanks.

  • J 4 years ago

    I am all for freedom of speech, but your article seems to using that right to further cause tension in a already tense situation. There is a time and a place for most things, but to be honest; I am not sure when (if ever) your article should be allowed to be seen. I personally do not think it is possible to confuse a gun with a taser (police officers I know, say HIGHLY unlikely) but you seem to want to incite for violence! This ex-officer should be punished but I do not believe he went there with the intent to kill anyone, he made a really bad decision during a really intense situation and she should be punished but the rest of your article seem a little fanatical.

  • S 4 years ago

    Uhm pretty sure I have not stereotyped anyone...hence your inability to tell if I am racist, a republican or a democrat. That has nothing to do with it. I am, for the good of the country and we need police whether you like it or not. Anyway, I do not feel the need to argue any further with you, not because of an inability to, just I have wasted enough time. Your opinion is just that and you know what they say about opinions....so, good luck to you and your column because writing stuff like this, luck is probably what you are going to need. Peace!

  • CJ 4 years ago

    What is the point of having the photo of the badge that honors fallen officers on this article??? I think I know. You want to insight violence against law enforcement. So much for peace!

  • S 4 years ago

    That's funny CJ, I was wondering the same thing.....

  • N 4 years ago

    Wow, you (Chou) didn't take much time to watch the video. While I do agree that the officer used unnecessary force, even when he meant to go for his taser, but I not agree that he was not surprised when the gun went off. Take a closer look, not only does he look down at the gun in amazement, later he holsters his gun and puts his hands to his head in complete regret and amazement and then starts crying out that he meant to taser him. To take this officers life by convicting him of murder would by worse than than the mistake he made. He should be found guilty of manslaughter no doubt because I believe he should not have even needed his taser for that situation. But we always tend to forget the victims side of the story. And that is that he was acting like a thug involved in a huge fight on BART and had to be removed. Then when he should have cooperated with the police for a simple disorderly conduct, he began to resist. I would love to see you handle the stress of that situation

  • M 4 years ago

    Examiners have a database of AP photos they have permission to use. This is one of them.

  • Kent McManigal- tinyurl.com/abqliberty 4 years ago

    Cops should be held to a much higher standard of behavior if they are to be armed with a gun *and* a badge. The murderous cop must be held accountable.

    "The urge to defend police for their criminality will always render the rightwing completely unable to understand and defend liberty." - Anthony Gregory

    As for all the "murderer fan club" members who can't help but defend a murderous cop in the face of clear guilt... They are dull and make trite remarks.

  • S 4 years ago

    HELLO....No one has said he shouldn't be held accountable.

  • Ron 4 years ago

    Actually, yes, Juliette below said he should not go to prison.

  • Rob 4 years ago

    Great, great article.. And to all the cop lovers here just wait until the one day that someone like this shoots and murders your child and the jury just passes the killing off because "well it was a cop so it's ok" Love your work Jenn, keep it coming

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