Appeals court upholds conviction of former BART police officer

A state appeals court in San Francisco has upheld the involuntary manslaughter conviction of former BART police Officer Johannes Mehserle in the killing of an unarmed passenger in 2009.

Mehserle, 30, has already served his sentence for the fatal shooting of Oscar Grant, 22, of Hayward, at BART’s Fruitvale station in Oakland early on New Year’s Day in 2009.

After being convicted in 2010 in a trial that was moved to Los Angeles, Mehserle was sentenced to two years in prison. He was released last year after receiving credits that reduced his time in custody to about a year.

Mehserle appealed his conviction to the Court of Appeal in a bid to clear his name of a felony record, his lawyers have said.

In Friday’s decision, a three-judge panel of the appeals court unanimously rejected his claim that there was insufficient evidence to support a conviction of involuntary manslaughter.

Michael Rains, a lawyer for Mehserle, said the former officer plans to continue the appeal by asking the California Supreme Court to review the case.

“I’m disappointed but not surprised” by the appeals court ruling, Rains said.

“This is a politically charged case,” the attorney asserted.

Involuntary manslaughter is legally defined as a killing that is unintentional but results from criminal recklessness or negligence.

Mehserle was convicted of that charge by a Los Angeles Superior Court jury in July 2010 but acquitted of heavier charges of second-degree

murder or voluntary manslaughter.

The trial was moved to Los Angeles because of concern that extensive publicity and protests about the shooting could jeopardize his right to a fair trial if it were held in Alameda County.

Both the shooting of Grant, which was recorded on cellphone videos by bystanders, and the verdict the following year were followed by large-scale protests, vandalism and looting in Oakland.

Mehserle testified at the trial that he intended to use his Taser stun gun to subdue Grant but accidentally used his service revolver instead.

His lawyers argued in the appeal that while he made a “tragic and horrible” error, he didn’t act with criminal recklessness and thus should not have been convicted of involuntary manslaughter.

But the appeals court said, “We find sufficient evidence that his conduct of mistakenly drawing and firing his handgun instead of his taser constitutes criminal negligence.”

The court said Mehserle’s handgun was “peculiarly distinguishable from his taser for a number of reasons”: the handgun was more than three times heavier; the gun was black and the taser was bright yellow; the gun was on his right side and the taser on his left; and the two devices were kept in their holsters in different ways.

“The jury could have reasonably found defendant’s conduct rose to the level of conscious indifference to the consequences of his acts, and was not a mere mistake,” Justice James Marchiano wrote for the court.

The panel also said the jury could have reasonably concluded that Mehserle didn’t need to use a Taser at all since Grant was face-down on the station platform when shot by the officer. Mehserle and other officers had gone to the station in response to a report of a fight on a BART train.

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