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Latest from Dean Johnson: Could Mehserle walk free on December 3?

On December 3rd, Johannes Mehserle could walk out of a Los Angeles courtroom a free man.

At least temporarily.

Mehserle’s lawyers will argue that Mehserle should be set free on bail pending the outcome of his appeal.

It is possible for a person who has been convicted of a felony to obtain bail pending appeal. The initial application is to the trial court (that is what will happen Dec. 3rd). The Court of Appeal can review a denial of bail pending appeal and bail issues can also be addressed by a Writ for Habeas Corpus.

The burden is on the defendant. In order to get bail, the defendant must prove by clear and convincing evidence that:

-he is not likely to flee the jurisdiction;

-he does not pose a danger to the safety of any person or to the community and

-the appeal presents a substantial legal question and is not for purposes of delay.

In deciding any bail question, the court can consider the defendant’s ties to the community, his record of making court appearances, the length of the pending sentence and whether the crime is a “serious or violent felony” as defined in the Penal Code.

If you go down the checklist of factors, Mehserle’s chances of getting bail look pretty good.

The one factor that weighs against him is that he did flee to Nevada early in the case. This is mitigated somewhat by his claim that he left the area due to death threats and not to avoid prosecution.

The judge will probably not see Mehserle as a danger to the community. The judge has already said that he believes that the evidence is “overwhelming” that Mehserle intended to Taze Oscar Grant, not kill him. The bizarre situation that led to this case is not likely to be repeated.

The appeal does present substantial legal questions. Most of these questions revolve around the fact that the judge instructed the jury on the “unlawful act” theory of involuntary manslaughter as well as the “negligence” theory.The theory is that, since Oscar Grant did not resist arrest, the use of ANY force was excessive and therefore an “unlawful act.”

This opened the door for the prosecution argument that Mehserle was guilty EVEN IF he intended to use the Tazer, rather than the gun.  The defense says that no instruction should have been given on this theory. This is so, the defense says, because, in order to find Mehserle guilty on this theory, it would have to attribute Officer Pirone’s illegal arrest to Mehserle (in order to find an “unlawful act”), and because it allowed all 12 of the jurors to vote “guilty” even though the jury might not have been unanimous on the legal theory of guilt. There are other issues as well, such as the exclusion of evidence of Grant’s prior conduct and the denial of a new trial based upon “newly discovered evidence.”

Mehserle has made all court appearances. He has strong family ties to the community. Even if his conviction is affirmed on appeal, he faces only about 7 months in prison. Cutting against this factor is the fact that the prosecution also has a possible appeal as to the dismissal of the gun enhancement. If the prosecution were successful, Mehserle could face a new trial on the enhancement. Should he lose at that trial, he would be facing up to 10 additional years in prison (of which he would do 85%), and the case would be classed as a “serious or violent felony.”

BUT,  You can’t really approach these cases in a “checklist” fashion. It would be extremely unusual for a judge to release a defendant pending appeal in ANY kind of homicide case, particularly a high-profile case where emotions in the community are running so high. Sometimes, its these “unwritten” reasons that carry the most weight. This may be one such case.

Dean Johnson, Attorney and Legal Analyst

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The Mehserle Case: What’s Next?

Oscar Grant’s family is reported as looking into their options regarding the minimal sentence handed down in the Mehserle case.

What are their options?

The first question is whether the sentence was wrong.

My take on it: The sentence wasn’t wrong, given the verdict of involuntary manslaughter and Mehserle’s background (I have already said as much on TV).

But the verdict itself may not have been an expression of the jury’s true beliefs. The blame for this lies in the judge’s instructions. The judge essentially wrote a possible verdict of “implied malice” second degree murder out of the case.

The key instruction tells the jury that, if they buy Mehserle’s story that he believed that he was using a Taser-and not firing a gun-they must acquit of murder and voluntary manslaughter.

This precludes consideration of the argument that Mehserle’s failure to use care in determining which weapon he was using showed a conscious disregard for human life, and, therefore, “implied malice.” (I have also said this on the air.)

Had the jury considered and accepted this argument, the correct verdict would have been second degree murder and the minimum sentence would have been 15 to life (up to 35 to life if the gun enhancement has also been found true.)

So, it would not be a big stretch to say that Mehserle got away with murder, if the jury thought that he was careless in determining which weapon he was firing.

What, then, are Grant’s family’s options?

First: The unusual way in which the judge “threw out” the gun enhancement leaves the door open for an appeal by prosecutors. The prosecution generally has no appeal from a loss in a criminal case, but this is one of the exceptions. The court ordered the gun enhancement dismissed under Penal Code section 1385. The prosecution can appeal a dismissal under 1385. The prosecution might also seek a writ (think appeal on the fast track) so that they could get a decision before Mehserle gets out of prison.

There would then be a new trial on the gun enhancement alone. This trial would raise all the same issues of “mistake” and “confusion” that were central to the first trial.

Second: There may be a federal prosecution. The feds have been investigating the matter for some time and monitoring the outcome in the state case. Several Alameda County civic leaders have already spoken to the  United States Attorney General about pursuing federal criminal charges.

There were a lot of comparisons of the Michael Vick sentence (4 Years) to the Mehserle sentence (2 years). The implication is that the system is unfair because it punished abuse of a dog more severely that the killing of a man. The comparison is unfair. Sentencing in the federal system is much more severe that in the California system, as Mehserle will discover if he is convicted of a federal civil rights violation resulting in death.

Finally: The family is pursuing a civil suit. More and more, it is the civil case following these high profile criminal cases that produces justice. We all remember that OJ was found liable in the civil case, after an acquital in the murder case.

Stay tuned for more developments

DEAN JOHNSON

Judge indicates Mehserle won’t be granted new trial

Dean Johnson previews sentencing of Mehserle.

 

http://abclocal.go.com/kgo/story?section=news/local/east_bay&id=7765037

Mehserle jury panel forced to start over

ABC7 legal analyst Dean Johnson says the verdict should come quickly.

“Any way that the jurors go, they really only have to answer two questions, the first being ‘Did Mehserle think he was using a gun or a Taser?’ If the answer is Taser, then their choice is between involuntary manslaughter and acquittal. If they think that he was using a gun, then the choice is either second-degree murder or involuntary manslaughter,” he explained.

Johnson says, “The good news is the jury hasn’t deliberated much yet.”

http://abclocal.go.com/kgo/story?section=news/local/east_bay&id=7538998

Mehserle jury deliberations postponed

According to Johnson, the core question is, did jurors believe Mehserle when he was on the stand saying that he meant to pull his Taser? But the judge’s instructions on implied malice could impact the verdict.

An implied malice is when someone acts with a conscious disregard for human life.

“I think of putting Mehserle on the stand paid off. Some of his testimony would have justified a second-degree murder conviction on a theory that we call ‘implied malice,’ but the judge’s instructions, for all intends and purposes took implied malice out of the equation,” Johnson said.

Johnson also said that the longer the jury goes, the better that is for the prosecution and the better that is for a conviction.

http://abclocal.go.com/kgo/video?id=7539094

Mehserle jurors to resume deliberations

ABC7 Legal Analyst Dean Johnson said if the jury does reach a verdict today, that would likely be good news for Mehserle.

“Verdicts in homicide cases almost always favor the defender. We all remember the O.J. Simpson verdict, which took only a matter of hours,” he said.

http://abclocal.go.com/kgo/video?id=7539094