Oakland BART Officer Who Shot Pinned, Unarmed Man Resigns
Brian Doherty | January 9, 2009, 8:28pm
The San Francisco Chronicle reports. This gets Johannes Mehserle off the hook for having to actually cooperate in internal police investigations of his murder of Oscar Grant. A great detail:
Alameda County District Attorney Tom Orloff said he plans to move quickly toward a decision on possible charges. Orloff met Wednesday with Oakland Mayor Ron Dellums' chief of staff, several elected officials and other community leaders who arrived at his Oakland office demanding information about the probe.
"These things normally take weeks rather than days, but I am trying to expedite this and get it resolved as quickly as we can," Orloff said.
Any people in public prosecutors offices out there? Does it really take weeks to even decide to press charges in your average case of a multiple-eyewitness and on-video shooting? Or could it be officers are treated with kid gloves an average citizen shooter would not be.
Note: An earlier version of this post made the presumption, which I now believe not to be accurate, that the "statewide fund for police officers" that Mehserle's lawyer says in the story will pay for his defense--despite no longer being an officer--was paid for by taxpayers. While I have not been able to verify this for sure this Friday evening, it could well be this private defense fund. If I learn that taxpayers are indeed on the hook, I'll update.
Earlier blogging on this, each one with embeds or links to the news report with the citizen-shot video of the leadup to the shooting and shooting, from Michael Moynihan and me.
kanabiis | January 9, 2009, 9:45pm | #
While I commend H&R for keeping this story alive in the blog, the resignation is quite old news, I believe it happened on Monday. My quick glance at my digg.com posts over the last week since this has been in the news, I see I was bitching about his resignation since about 4 PM my time Monday.
Earlier today Tony Harris on CNN gave an update after the small 30 second spot highlighting the riots that have sparked in the aftermath claiming that at this point the officers lawyer and the IA office are having trouble locating him. His lawyer claims there were credible threats on his life forcing him to go into hiding. Which explains why 9 days after the shooting no one from the BART IA office, the DA, or any other law enforcement agency even has the slightest idea what his explanation or defense for the shooting is. Apparently even his lawyer is having difficulty answering any questions about it.
Regarding SOP for civilian 'accidental shootings' earlier this week a 12 year old allegedly shot a 2 year old while playing with a small caliber rifle. The differences between the 2 cases is obvious, however it still stands to point out that the 12 year old in question was IMMEDIATELY taken into custody, and remains in custody pending charges.
http://abclocal.go.com/kgo/story?section=news/local/peninsula&id=6594946
Since there are so many accidental shootings every week, lets use them for example.
Here we have a hunter who accidentally shot another hunter on Jan 4, the victim is alive. However less then 24 hours after the shooting the news had already reported the charges that the shooter will face, reckless endangerment and assault. All without any video evidence to help sort out the facts:
http://www.buffalonews.com/nationalworld/state/story/540282.html
Here, a man throwing a gun on his bed causing it to discharge and penetrate his wall and strike his neighbor on Jan 4, he has already been arrested and charged:
http://www.portlandtribune.com/news/story.php?story_id=123109583121639000
And lets not forget how quickly Plaxico Burress was arrested and charged for shooting himself.
9 days later this officer walks, nobody can even pinpoint his whereabouts and a time line for the decision to even FILE charges has not even been set.
The fact that there has not been MORE pressure on the DA from pretty much everyone is completely baffling.
Regarding the presumption of innocence:
Everyone is presumed innocent until found guilty, most prisoners in local jails are innocent suspects awaiting trail. Thats kinda how things work in the legal system, you are arrested, charged, go to jail, make bail or not, go to court, get convicted or acquitted. To ask for an arrest and charges to be filed is not saying he is guilty, its just saying that he COULD be.
Or are you suggesting that the legal process be somehow altered for Law Enforcement Personnel?
dunphy | January 11, 2009, 6:34pm | #
"it does happen with non-LEO citizens."
which of course does not dispute what i said. what i said is it happens more frequently with cops than with civilians.
" I've mixed feelings about this, but lets just admit that the asshole cops who beat the crap outta Rodney King were guilty of aggravated assault and an average 10 year old could see that. This fucking cop worship that so many in our society engage in does nothing for justice but shitloads to justice."
which is totally irrelevant.
the double jeapardy concept doesn't say "except when the guy is obviously guilty as fuck"
for example, OJ Simpson was obviously guilty as hell, but it doesn't matter (i am talking about the ron goldman/nicole murder), that doesn't make it "ok" for him to be prosecuted a second time for the same murder.
rule of law (should) matter. this is a process analysis, as constitutional law analysis always should be, not a results analysis.
a "good result" does not justify bad, and arguably unconstitutional process.
regardless of whether the rodney king cops were guilty as fuck, they were acquitted in a state trial, then tried again for the same frigging offense.
there would be no problem with me, if they had decided to try them first (and only) federally. the problem was they got two bites at the apple which violates the double jeapardy principle, although not technically the law (for reasons i can explain, but it's complicated).
arguing that double jeapardy is ok cause the rodney king cops are obviously guilty is like arguing it's ok for cops to plant evidence, if the guy was otherwise obviously guilty.
simply put, that is wrong.
my point is quite simple. double standard in this case works both ways. it is correct (as i stated) that the prosecutor is being way more cautious before charging murder than he would be if this was a civilian suspect. advantage: cop.
it is also true that given a trial, prosecutors are way more likely to try it twice (if acquitted in state court) with cops than civilians.
disadvantage: cop
dunphy | January 11, 2009, 8:57pm | #
elemenope, i am well aware of the justification used, but as i said imo it's double jeopardy.
the issue should not be that the charged crimes are seperate. the issue is that underlying ACT was the same.
let's use the rodney king case.
what they did was bludgeon the guy like a baby seal with batons. whether you call that "assault" or "deprivation of civil rights under..." etc. the ACT was the same.
if johnny dirtbag strikes you with a baton, the state is going to get ONE shot at the apple and charge him with assault.
if a cop does the same thing, the state (rather routinely) gets two shots, by having the federal prosecution option if the state option fails.
despite the fact that this is not DE JURE double jeopardy, (based on case law), it is clearly de facto double jeopardy.
you are being tried twice (after being acquitted the first time) for the same UNDERLYING ACT.
i am well well well aware of the case law on this. i've probably read at least two dozen cases related to this legal principle.
but just because it is the current "law of the land" in terms of case law, does not mean it is just or correct.
have you ever (lord forbid) disagreed with the constitutional analysis of our SCOTUS or any local court?
iow, as i said before, i am VERY well versed in the case law and the reasons why it is not CONSIDERED double jeopardy.
my point is that it clearly IS double jeopardy despite the legal machinations used to "justify" that it isn't.
i wasn't aware that the powers that be, the scotus, etc. are always right. are you?
dunphy | January 11, 2009, 10:22pm | #
"For another tack, since this is going nowhere, would you stipulate that by dint of their authority and power over others, officials (such as police officers, politicians, bureaucrats) have a responsibility to use that power ethically, and are vulnerable to commit certain crimes that are made possible simply by the power and authority they possess?"
of course.
"If so, then what is your objection to there being different crimes being tried by different courts proceeding from the same act when that act violates not only a criminal law but also a public trust?"
because in the case discussed (king) there was one bad act - beating the crap out of rodney king.
and just like ANY assault, the state should not get to try it twice. see: double jeopardy
i have no problem with additional charges (if warranted) being put on the docket at the ONE trial, if they apply because of the special circumstances.
i have a problem with trying them for the same thing (beating him) a second time because he was found not guilty the first time.
that's odious and goes against everything the founders intended when they included the double jeopardy clause (note that this concept greatly precedes our constitution as well).
it's really that simple.
if you believe in the rule of law, that is.
see, (again) my postal worker murder example.
Anne | January 12, 2009, 2:50pm | #
My comments were about filing charges, not about whether the subject should be in jail while awaiting the filing of charges.
Arresting someone and filing an indictment are two completely separate things. Before an indictment is filed, it is the police who are responsible for making arrests, not the prosecutors. We can't just pick up the phone and say "arrest that guy."
But anyway, I didn't know the guy wasn't in jail before I read those comments, so I don't know enough to have an opinion on that subject. But as for the filing of charges,
EscapedWest says "I simple don't believe that if you had video and testimony that a non-cop suspect had shot a restrained man in the back it would take you "a couple of weeks" to put together an indictment good enough to put the suspect in the can while you got your ducks in a row."
I don't know if you remember the Atlanta courthouse shootings, but in that case, Brian Nichols, a black man, overpowered a guard, took her gun, and then opened fire in a crowded courtroom. He killed the Judge, the court reporter, and two officers, and he was caught on camera doing it. That happened on March 11, 2005. He was not indicted until almost a month later, on April 10, 2005.
http://www.11alive.com/news/local/nichols/story.aspx?storyid=121399
You don't indict someone just to get them arrested. But like I said, I don't know enough about the arrest angle to really comment on it.
Anne | January 13, 2009, 11:31am | #
Escaped West and Brian,
My previous comments were in response to the question in the post directed to prosecutors. I've now watched the video and looked into the media reports a little. Sorry, this is a little long, but there's no short answer to the question.
First, you need a little background on the way prosecutions work. Criminal cases come into the D.A.'s office through the police. Police investigate a crime, compile evidence, make an arrest on a specific criminal charge, prepare a report, and submit the case to the D.A.'s office. The prosecutors then decide whether to go forward with formal charges, and what those charges should be. They then file an indictment or information, which starts trial proceedings, and the case is prosecuted based on the evidence already gathered by the police.
In this case, it looks like the transit police are just starting their own investigation, so they haven't sent anything to the D.A.'s office. I'm guessing that the D.A.'s office didn't even hear about this case until it broke in the media, and that puts them in kind of a backwards position from the way they normally do things. They can't file an indictment until they're ready to go forward with trial, but they don't even have any police reports, background investigation, or evidence that's ready to present to a grand jury or anyone else.
As incriminating as the tape looks, you can't just go forward without an investigation. You have to get your evidence together, come up with an alleged motive, find witnesses, take reports, figure out which charges are appropriate, etc. Also, there's an extra problem here because the transit police have jurisdiction over the case, but they are in a conflict of interest situation that might require an independent police agency to be brought in before the case can even be investigated.
Here is what the D.A. said:
"Alameda County District Attorney Tom Orloff said he plans to move quickly toward a decision on possible charges.
'These things normally take weeks rather than days, but I am trying to expedite this and get it resolved as quickly as we can,' Orloff said."
I don't see a problem with this statement. It's correct, and it's the only responsible way to handle a criminal case. The truth is that these things do take time. Based on the video, I think there's a good chance the shooting was accidental. It may not have been, and even if it was, there will still likely be charges. But the State needs to actually know the answer to that question before going forward.
I know the D.A. said that they're still deciding whether to file charges, but odds are the decision has already been made. It's just that there are strict rules about what prosecutors are allowed to say to the media, and you take a big risk when you announce a charging decision before your investigation is complete. If you end up changing the charges, your case could be reversed because you prejudiced the jury pool. And if you accuse the guy of murder and turn out to be wrong, you'll find yourself enjoying an extended vacation with Mike Nifong.
As for why the guy isn't in jail, I can't say for sure. But before you can put someone in jail, the D.A. or police have to charge a specific offense supported by probable cause. There are situations where you file a quick charge just to get someone off the street and then amend the charges later, but that is generally when the suspect is a flight risk or likely to reoffend. I don't know whether either circumstance applies here. But in general, it's best to have your case together before you even get started.
Sorry this was so long, but I hope it helped. I know it's frustrating when justice is slow, but that's the only way to prevent serious miscarriages of justice. Mike Nifong, anyone?
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