August 27, 2013
(current date)
**UPDATE (Denotes NEW information added to the original blog)
***Change/correction in blog information
August 3, 2011
(original date)
When President Obama was elected, many people, mostly white, began a discussion of a so-called post-racial society, as if Obama's election as a Black man had signaled some change in the landscape of racism or racial discrimination in the United States. It did not. We, as a country, have a long, long ways to go before we achieve a "post-racial" society. We probably won't reach it in my lifetime, if we achieve it at all. But, I could be wrong (I was wrong with my prediction that I would not see a black President in my lifetime), and I hope that I am; but, I don't think I will be with this prediction, based on the occurrences today, e.g., the herein Oscar Grant murder and other discrimination and the continuous and enormous number of discrimination cases filed with the EEOC (most of which are meritorious). Even with Obama's election, the level of racism and/or discrimination has not changed in this country. The only difference between today's racism and the racism of the 50's, and 60's, is that the racism has gone "underground", rather than remaining out in the open and obvious, i.e., the "white only" and "colored only" signs, the blatant and obvious segregation of restaurants and other facilities, where black people had to enter and be served in the rear, etc. Now, the racism and discrimination is expressed in less obvious ways, e.g., the employment arena and the courts. In most cases, there will not be the beneficiary or helpful use of the word "nigger" in order to help identify the racism or discrimination, so the actions, on the surface, will appear to be neutral. And, in most cases, without the blatant racial descriptions, it will require some degree of sophistication to detect the racism. Such is the case with the murder of the black Oscar Grant by the white Johannes Mehserle and the treatment of the murder by the judicial system, and, in particular, the white judge, Robert Perry, with respect to his rulings favoring and "freeing" Mehserle of responsibility for Grant's death, notwithstanding videotape, eyewitnesses, and other evidence showing that Mehserle killed Grant intentionally, and that at least the "nigger" word or language was used in the context of the killing. To all of the citizens who did not attend the trial (and for some who did), and relied on the broadcast or print media to relay to them the racial connotations of the judicial proceedings, they were probably, in most cases, miseducated or not educated at all. For example, as to the effect of judge Perry's post-trial rulings, which , in essence, allowed Mehserle to "walk" for the murder of Oscar Grant, notwithstanding the involuntary manslaughter conviction; and, for another example, that the jury was basically, based on my understanding, "all white", that is, there were no African Americans on the jury ***(my understanding is hereby corrected, my new understanding is that there was one African American man on the jury). It is reminiscent of the black Emmett Till murder case, except in this case, the actions were caught on tape (and Till's murder was premeditated and first degree, while Grant's murder was second degree). This is part of the underground racism that I am referring to (generally out of sight and out of mind unless it is brought to the attention of the public, and even then, in many cases, such as Oscar Grant's, justice is not served for the racism--Mehserle has literally gotten away with murder, as did the Emmett Till murderers). Moreover, even after the Justice Department has been made aware of some of this information, it has, thusfar, not saw fit to bring a federal prosecution either for Mehserle or judge Perry, so there is no reason why one wouldn't expect it to happen again.
The following is a federal criminal-civil rights Complaint that I filed with the U.S. Atorney's Office in Los Angeles on July 26, 2011 addressing the discrimination against Black males by the Superior Court of California (and Los Angeles and Ventura Counties) and the U.S. Justice Department, through neglect or non-action:
COMPLAINT REPORT
Method of Responding: I , Laurack D. Bray, and on behalf of other similarly-
situated black males participating in the judicial process in the Superior Court of California, in either a civil or criminal proceeding and as either a plaintiff or defendant, or as a victim, unless they would choose otherwise, including Conrad Murray and Oscar Grant, will generally respond to this report by addressing item-question Nos. 1. and 2. of the original page of the report regarding the named individuals or entity . That is, I will name or identify the individual or entity and, thereafter, will address item-questions 1. and 2. of the Complaint Report.
1. Name of the individual or entity that we believe committed a federal crime .
Superior Court of California and the respective Counties in question (i.e., Los Angeles and Ventura).
Question #1. What federal crime do you believe has been committed?
ANS: I believe the crimes of conspiracy against rights, pursuant to 18 U.S.C. sec. 241, and more specifically, deprivation of rights under color of law, pursuant to 18 U.S.C. sec. 242 were committed by the Superior Court of California, together with former judge Steven Hintz of the Superior Court of California, Ventura County and judges Michael Pastor and Robert Perry of Los Angeles County, either directly or indirectly through or by the Superior Court allowing its judges to violate the constitutional rights of black males participating in judicial proceedings in its courts through a pattern of misconduct surrounding at least three known cases (it would be interesting and valuable to study whether any other cases between 2003 and 2009 have involved similar conduct involving black males and Superior Court judges, who, thusfar, have been white) that have been or are being litigated in the Superior Court of California. Those three cases are Nguyen v. Bray, NO. 221162, Ventura County ; People v. Conrad Murray, M.D., NO. SA073164, Los Angeles County; and People v. Johannes Mehserle, NO. 161210, Alameda County.
I believe the primary violations are the denial of constitutional due process under color of law with respect to the respective judicial proceedings participated in by the Black males; here, specifically, Laurack D. Bray, Complainant herein, an attorney presently and an attorney at the time of the violation; Dr. Conrad Murray, a medical doctor presently and a medical doctor at the time of the violation, and Oscar Grant, deceased, and upon information and belief, a former butcher. The violation of Mr. Grant’s rights (which was represented by the People of California at the criminal trial of Johannes Mehserle) by the Superior Court involved Mr. Grant as a victim, as opposed to a plaintiff or defendant. But Mr. Grant’s family felt the impact of the constitutional violations no less than Mr. Grant himself. Moreover, as to the due process violations by the Superior Court, and its judges, there is a demonstrated connection or pattern shown among the cases (and again these are merely known cases).
For example, the connection between the Bray case and the Murray case is the two trial judges’ action in causing the deprivation of a right or property , and thereafter, arbitrarily denying a stay of execution of the deprivation (that is, without a hearing on the stay ); and, for another example, the connection between the Bray case and the Mehserle case is the two judges’ usurping the province or domain of the jury and substituting their judgment and decision for that of the jury. In essence, providing the Black males with a bench trial instead of a jury trial which was demanded and/or required. In all cases, the trial judges were white and the respective males were Black. NOTE: In both the Bray and Murray cases, I provided evidentiary exhibits to support the Complaint, and the U.S. Attorney’s Office has those Complaints and exhibits, so I will not repeat them here. As for the Mehserle case and judge Perry, I will be attaching additional exhibits here.
#2. Explain in detail what you know about the crime, including when and where it occurred, what you have heard and observed and when you heard and observed it, what others told you (include their names) and what other evidence may exist.
I know that there are at least three cases whereby white Superior Court judges have acted to deny the constitutional rights of black male litigants. I know that thusfar no action has been taken by the Superior Court of California to discipline or otherwise correct the misconduct of the judges or to provide relief to the black males. I know the Bray case occurred in 2003 in Ventura County; the Murray case is on-going (and the trial has not taken place yet, but judge Pastor remains the trial judge) and will take place in Los Angeles County; and the Mehserle case has been tried and a notice of appeal filed. The Mehserle case was initially brought in Alameda County, California, but later was transferred to Los Angeles County (where the unconstitutional actions occurred).
I observed the Bray case through participation. I was the object of the trial judge’s action in the Bray case. I observed the Murray and Mehserle cases through review of the court records, news broadcasts and newspapers. In the Bray case, I observed, among other things, the trial judge, Steven Hintz, in a demanded jury trial, intentionally answering a jury question that was required to be answered by the jury, which resulted in an eviction judgment and the loss and/or deprivation of a home and law office and practice. Thereafter, I observed the same trial judge, Hintz, state in open court, without being asked, that he was not going to grant the black male (myself) a stay of execution of the judgment. And, he didn’t, even after he was, informally, ordered to hold a hearing by a state appellate court. Finally, I observed that I was unlawfully evicted from my home-law office in violation of my due process rights, and my office has not been returned; and neither has the Superior Court taken any action against the trial judge .
As previously mentioned, I observed the Murray case through media reports and a review of the court record for the case, i.e., the preliminary hearing record, including the state’s motion for suspension of Murray’s license, and especially the Minute Orders. I observed that the trial judge, Michael Pastor, upon a motion from the Medical Board of California, suspended the medical license of Dr. Conrad Murray in the State of California until the end of Murray’s criminal manslaughter trial, without a due process hearing or trial. I observed that Pastor attempted to have Murray’s license suspended in the other jurisdictions where Murray practices as well. But, it doesn’t appear that the other jurisdictions followed Pastor’s lead, as well they should not, in respect of Murray’s constitutional rights. Finally, I observed that the suspension of Murray’s license remains intact as Murray’s trial approaches, and I know that if the other jurisdictions that have licensed Murray followed Pastor’s Order, that Murray and his patients in those jurisdictions would have suffered irreparable harm. Pastor’s conduct has not been corrected by the Superior Court, even to the extent of providing Murray another judge for his trial.
Last, like the Murray case, I observed the Mehserle case through media reports and the court record, including motions and Minute Orders. I observed the trial judge in the case, Robert J. Perry, pursuant to a defense motion for a new trial, usurp the domain of the jury (which had found defendant Johannes Mehserle personally used a firearm in the commission of involuntary manslaughter of Oscar Grant) and substitute his judgment for the jury’s and found that “there was insufficient evidence at trial to sustain the jury’s finding on gun allegation enhancement.” See Exhibit #1 (Minute Order). He also usurped the jury’s domain a second time by dismissing the gun allegation pursuant to Penal Code 1385 “for insufficiency of the evidence.” Id. And, I observed that thusfar the Superior Court of California and Los Angeles County have not taken any action against judge Perry for his conduct.
2. Name of individual that I believe committed a crime.
Judge Robert J. Perry ( Superior Court of California, Los Angeles County)
Question #1. What federal crime do you believe have been committed?
I believe the crime of deprivation of rights under color of law pursuant to 18 U.S.C. sec. 242, primarily, and at least indirectly if not directly, Section 241, conspiracy against rights, were committed by judge Perry, together with the Superior Court of California and Los Angeles County. I believe that section 242 was violated by the judge willfully subjecting the People of California, including the deceased Oscar Grant and his family members, to the deprivation of due process and trial by jury rights secured by the Constitution or laws of the United States, as well as “to different punishments, pains, or penalties, on account of such inhabitant(s’). . . color. . . or race. . . .” In this case, the different punishments, pains, or penalties were based on both Oscar Grant’s “race or color” as an African American or black man, but also on Johannes Mehserle’s “race or color” as a Caucasian or white man. That is, the judge tended to de-value Grant’s life as a black man in overturning the jury verdict on the gun enhancement and over-value Mehserle’s life as a white man in not only vacating the greater sentence provided for by the sentence enhancement, but also in attempting to prevent Mehserle from being tried again on the gun enhancement charge, notwithstanding the fact that Mehserle himself moved for a new trial and not a judgment of acquittal.
And, of course, judge Perry acted “under color of law” by acting as a Superior Court judge and depriving the People, including Oscar Grant, of its constitutional rights to due process and trial by jury.
#2. Explain in detail what you know about the crime, including when and where it occurred, what you have heard and observed and when you heard and observed it, what others have told you (include their names) and what other evidence may exist.
My knowledge about the Section 242 and 241 crimes in the Mehserle case, specifically pertaining to judge Perry’s crimes, are based on media coverage (including newspaper reports and television broadcasts), my personal involvement in an aspect of the case, i.e., pattern of discrimination against black males by some Superior Court judges and therefore, the Superior Court itself, parts of the Mehserle court records, e.g., motions, jury instructions, published portions of the trial transcript, etc., my personal legal research, and my personal experience as a civil rights lawyer.
I know at least the following about the crime or crimes by judge Perry in the Mehserle case :
I know that on July 8, 2010, the jury, in the Mehserle criminal involuntary manslaughter case, through verdict, found Johannes Mehserle guilty of the crime of involuntary manslaughter of Oscar Grant; and further, found Mehserle guilty of the allegation of personally using a firearm, namely a handgun “in the commission and attempted commission of” the crime of involuntary manslaughter of Oscar Grant. See Exhibit #2 (Verdict Form). And, I know that on November 5, 2010, through Minute Order, that judge Perry found that “there was insufficient evidence at trial to sustain the jury’s finding on gun allegation enhancement and motion for new trial for insufficient evidence on gun allegation is . . . granted.” See Exh. #1, supra. And, he dismissed “the gun allegation pursuant to Penal Code 1385 for insufficiency of the evidence.” Id.
I know that prior to the jury convicting Mehserle on the gun allegation that it had been instructed by judge Perry that “If you find the defendant guilty of the crime of. . . involuntary manslaughter, you must then decide whether the People have proved the additional allegation that the defendant personally used a firearm during the commission of that crime. Someone personally uses a firearm if he intentionally does any of the following: . . . 3. Fires the weapon. The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” See Exhibit #3 (Jury Instructions, part). I know that after the jury was so instructed, it found the gun allegation to be true. See Exh.#2, supra. And, I know that the Fourteenth Amendment to the United States Constitution guarantees that no state shall deprive any person of life, liberty, or property without due process of law. And, while the Sixth Amendment right to a jury trial in a criminal case is held and exercised by the accused, once the right is exercised, the guarantee and protection of a jury trial and decision runs to the People (including Oscar Grant, in absentia) as well.
With the above in mind, I know that Oscar Grant was shot in the back while face down on the ground and killed by Johannes Mehserle, a BART police officer, with a handgun. The Alameda County District Attorney’s Office, by complaint, charged Mehserle with one count of murder. The complaint also charged “that during the Commission of the crime defendant personally used a firearm.” The “Defendant pleaded not guilty and denied the allegation.” The D.A.’s Office then filed an information containing the same charge and allegation . Mehserle then moved to dismiss the indictment, and that motion was denied by an Alameda County judge. Subsequently, Mehserle was tried by jury on the murder charge in Los Angeles County, and the jury found Mehserle guilty of involuntary manslaughter and that the gun-use allegation was true. Judge Perry then, pursuant to Mehserle’s motion for a new trial on both the involuntary manslaughter conviction and the gun allegation, purportedly granted Mehserle a new trial on the gun allegation (while denying the motion for the involuntary manslaughter charge). Perry also dismissed the gun allegation for insufficiency of the evidence. Thereafter, he sentenced Mehserle to two years imprisonment for the involuntary manslaughter conviction, but because of mandated custody credits, Perry found that Mehserle had to be released on June 13, 2011, and he (Mehserle) was.
THE SECTION 242 VIOLATIONS
I. JUDGE PERRY WILLFULLY USURPED THE DOMAIN OF THE JURY, SUBSTITUTING HIS JUDGMENT FOR THAT OF THE JURY, VIOLATING THE PEOPLE’S, INCLUDING OSCAR GRANT’S , CONSTITUTIONAL RIGHT TO DUE PROCESS AND A JURY TRIAL.
When judge Perry purportedly granted a new trial and dismissed the gun allegation for insufficient evidence, after the jury had decided otherwise, he willfully substituted his judgment for that of the jury, and , in essence, transformed the jury trial into a bench trial. This action without more violated the People’s and Oscar Grant’s constitutional rights to due process and a jury trial (the rule permitting the grant of a new trial “ensures that the People, like the defendant, have the charges resolved by a jury”, Porter v. Superior Court, 47 Cal. 4th 125 (2009))(just recently, in the perjury trial of Roger Clemens, USDC, DC judge Reggie Walton, after declaring a mistrial, informed the jurors “Unfortunately, there are rules we play by and those rules are designed to insure that both parties receive a fair trial”, according to the L.A. Times, “Clemens trial gets quick hook”, July 15, 2011). The fact that Perry based his decision on insufficient evidence does nothing, in this case, to overcome the constitutional violation, because as discussed infra, there was more than sufficient evidence for the gun allegation finding and the involuntary manslaughter charge and conviction.
Further, the judge , in substituting his judgment for the jury’s , violated his own instruction to the jury. In his instruction to the jury, the judge stated, “It is not my role to tell you what your verdict should be.” See Exhibit #4 (Jury Instruction). But that is exactly what he did when he dismissed the gun allegation after the jury had determined the allegation to be true.
II. JUDGE PERRY’S FINDING THAT THERE WAS INSUFFICIENT EVIDENCE AT TRIAL TO SUSTAIN THE JURY’S FINDING ON THE GUN ALLEGATION ENHANCEMENT IS OUTRAGEOUS.
First of all, Mehserle, himself, through his Motion for a new trial, stated, “There is truly only one meaningful item of evidence in this record that Mehserle intended to draw and shoot his gun at Oscar Grant; and that, of course, is the fact that Mehserle drew and shot his gun at Oscar Grant.” (Emphasis added). Within that statement, Mehserle admits that it is a proven fact that he drew and shot his gun at Oscar Grant, and that this fact was a meaningful item of evidence in the trial record to prove that he intended to draw and shoot his gun at Oscar Grant. Even if one was to accept Mehserle’s position that this was “truly” the only meaningful item of evidence in the record to prove that Mehserle intended to shoot Oscar Grant with his gun, it was evidence, and significant evidence, because it was objective and direct evidence . This was enough evidence alone for the jury to find that Mehserle personally used a firearm or handgun to commit involuntary manslaughter, especially if it did not believe that the shooting was an accident, which it did not. The jury convicted Mehserle of involuntary manslaughter. See the Court’s jury instruction at Exhibit #5 herein, which states in part: The defendant is not guilty of murder or the lesser crimes of voluntary manslaughter or involuntary manslaughter if he killed someone as a result of accident. Such a killing is excused, and therefore not unlawful, if : 1. The defendant was a peace officer and was doing a lawful act in a lawful way; . . . AND 3. The defendant was acting without any unlawful intent. (Emphasis added).
The defendant is not guilty of involuntary manslaughter if he acted accidentally without criminal negligence. You may not find the defendant guilty of involuntary manslaughter unless you are convinced beyond a reasonable doubt that he acted with criminal negligence. . . . (Emphasis added)
The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of murder and the lesser included crimes of voluntary and involuntary manslaughter. (End)
Again, with this instruction in mind, the jury convicted Mehserle of involuntary manslaughter.
In addition to the above-identified evidence, and more specifically :
1. There was videotape evidence of the shooting—objective evidence—showing the gun being removed from the holster, being pointed at Grant, and being fired into Grant’s back. “Video of the shooting shows that at the time of the shot Mehserle was standing directly over Grant pointing the gun straight downward.” Mehserle’s New Trial Motion.
2. There was eyewitness testimony of the shooting—objective evidence. “The angle of the bullet through the body and the positioning of Mehserle standing over Grant comports with the witness testimony and the video.” Id.
3. There was evidence that “the taser is completely different from the firearm in weight and appearance : it is bright yellow, made of plastic, and considerably lighter than the firearm.” People’s Response to Motion for a new trial. This was evidence that Mehserle should have known that he held a handgun and not a taser when he shot Grant.
4. There was evidence that “Defendant wore his taser on the opposite side of his belt from his firearm,” Id., which made it much more difficult for one to “accidentally” reach for the gun rather than the taser; as would be the case when both weapons were on the same side.
5. There was evidence that “the firearm was secured in Defendant’s holster and could not be removed until after defendant specifically released the holster’s two separate retention devices.” Id.
6. There was evidence that “Defendant had withdrawn his Taser, then returned it to its normal spot on his belt only moments before he withdrew his firearm and shot the victim.” Id.
7. There was evidence presented that “defendant’s immediate and often repeated explanation was that he thought the victim was reaching for a gun,” Id., and that fact would account for Mehserle believing he had to act swiftly in meeting deadly force with deadly force, and therefore intentionally reaching for the handgun. Mehserle told a fellow Officer Pirone, “Tony, I thought he was going for a gun.” People’s Sentencing Memorandum. Again, this indicates that Mehserle intended to meet deadly force with deadly force, i.e., a handgun not a taser. An Officer Foreman stated, “Yes, he (Mehserle) said he thought the guy had a gun.” Id.
8. There was evidence that “At no time did defendant ever say anything about intending to pull his taser or that the shooting was an accident.” Id.
9. There was evidence that “It wasn’t until the defendant chose to testify on his own behalf that we heard him say, for the first time, that the shooting was an accident. Prior to that time, defendant continuously tried to justify the shooting by saying that he believed Mr. Grant was ‘going for a gun.’ ” Id.
10. Finally, there was evidence presented at trial that there was no need for Mehserle to use deadly force or even a taser, to restrain Mr. Grant, because Grant was being restrained by two heavy officers with his face being pushed to the ground. “The most critical moments were those just before defendant pulled his gun. During this time, Officer Pirone was holding Mr. Grant down with his hands and his knees. Officer Pirone can be seen in the video with both knees on Mr. Grant’s back and his left hand on the back of Mr. Grant’s head pushing Mr. Grant’s face into the platform.” Id. “Officer Pirone using all of his 250 pounds to push down on the back of 170-pound Mr. Grant who, at the time was laying over the left leg of Carlos Reyes.” Id. Mehserle “maintained that Mr. Grant’s hand was in his pocket and that he refused to remove it, this while two officers, each weighing 250 pounds were on top of him pushing him against the platform.” Id. “Even if Grant resisted arrest, there could be no doubt Mehserle had no right to use lethal force.” Mehserle’s Motion for a New Trial, at p.2.
This was far more than sufficient evidence for a jury to find that the gun allegation was true (as it did); especially after the jury had previously found that the shooting and killing was not an accident.
According to the L.A. Times, “EX –BART COP’S RELEASE DRAWS PROTEST”, Sunday, June 12, 2011, see Exhibit #6 herein, judge Perry stated that “the evidence was insufficient to show that the officer used his firearm deliberately.” (Emphasis added). This finding is equally outrageous. For the only evidence going to prove that Mehserle’s use of the firearm was not deliberate was Mehserle’s subjective testimony (and the evidence in support of that testimony, e.g., evidence of other cases where guns were “accidentally” used instead of tasers). All of the other and remaining objective evidence point to a deliberate use of the handgun by Mehserle. See the evidence cited above. If this statement was in fact made by judge Perry , it should be the central focus and basis for the Justice Department bringing a Section 242 action against the judge. Without Mehserle’s testimony of an “accident” (which the jury rejected), most reasonable people, e.g., the jury, would conclude that the shooting was deliberate.
III. THE ONLY WAY FOR JUDGE PERRY TO FIND INSUFFICIENT EVIDENCE FOR THE GUN ALLEGATION WAS FOR HIM TO ACCEPT MEHSERLE’S SUBJECTIVE DEFENSE AND TESTIMONY OF AN ACCIDENT (WHICH THE JURY REJECTED) AND DISREGARD ALL OF THE OBJECTIVE EVIDENCE POINTING TO AN INTENTIONAL AND DELIBERATE SHOOTING AND KILLING.
And this deliberate disregard of the evidence provides a separate and independent
violation and denial of due process under color of law. Moreover, the due process violation is exacerbated by the fact that the judge accepted the subjective theory and evidence of a white police officer claiming an accident in the shooting of an innocent and unarmed black man in the back, while disregarding evidence that a black man’s life was deliberately and unnecessarily taken. This scenario projects the race factor.
IV. JUDGE PERRY, WITHOUT AUTHORITY, AND UNDER THE GUISE OF A NEW TRIAL ORDER, EFFECTIVELY GRANTED MEHSERLE A JUDGMENT OF ACQUITTAL FOR BOTH THE GUN ALLEGATION DIRECTLY, AND THE INVOLUNTARY MANSLAUGHTER CONVICTION INDIRECTLY.
This was another separate and independent due process violation under color of law.
Even though judge Perry purportedly granted Mehserle a new trial on the gun allegation, in response to a new trial motion, he, in essence, and effectively, granted Mehserle a judgment of acquittal, with the specific intent to do so. Further, with the acquittal on the gun charge, Mehserle was effectively acquitted of the involuntary manslaughter charge, because the gun allegation is inextricably intertwined with the manslaughter charge. Since the jury found that the killing of Oscar Grant was not an accident, it had to find the gun allegation to be true (as it did) to convict Mehserle of involuntary manslaughter. Therefore, an acquittal of one or the other is an acquittal of both.
However, “a court has no authority to grant an acquittal in connection with an 1181 motion (motion for a new trial).” Porter, supra. And, the People pointed this out to the judge in its response to Mehserle’s new trial motion. But the judge entered the acquittals nonetheless. Clearly, judge Perry intended to issue Mehserle a judgment of acquittal, because of the language he chose to describe the judgment. If he truly intended to grant Mehserle a “new trial”, and not an acquittal, the ground and language had to be “contrary to the evidence”. Even if he concluded that there was “insufficient evidence” to prove a charge beyond a reasonable doubt, if the motion before him was for a “new trial”, he could only grant the motion based on the jury’s verdict being “contrary to the evidence”. “Insufficient evidence” is the typical language and ground used for an acquittal judgment. “A motion under section 1118.1 seeks a judgment of acquittal for insufficient evidence.” Porter. So, while the judge was entertaining a new trial motion, i.e., an 1181 (6) motion, he issued a judgment of acquittal decision, i.e., an 1118.1 motion. I will explain below why it was intentional and how it aided Mehserle in more ways than one.
V. JUDGE PERRY’S ACQUITTAL DECISION ON THE GUN CHARGE (THROUGH THE NEW TRIAL ORDER AND THE DISMISSAL ORDER) PROVIDED MEHSERLE WITH MULTIPLE BENEFITS , INCLUDING DOUBLE JEOPARDY PROTECTION.
It is clear that when judge Perry issued his “new trial” and dismissal orders based on
insufficient evidence, that he intended to do so, with specific purposes in mind. One of those purposes was double jeopardy protection for Mehserle. Judge Perry’s dismissal Order was a sua sponte order, or without a request from Mehserle for the order.(***I believe this is incorrect or wrong, based on information that I have now ascertained from a news article, I believe Mehserle, through his attorneys, did in fact request, through a motion, the dismissal. I stand corrected--but, my argument against the dismissal remains the same). Mehserle only asked for a new trial, based on a new trial standard, i.e., “Sitting as a thirteenth juror, the Court should find that the prosecution offered inadequate evidence that Mehserle intentionally used his firearm (emphasis in original), and thus grant a new trial on enhancement.” (emphasis added). Mehserle’s Motion for a New Trial. (Even though Mehserle may have “believed” that there was “insufficient evidence” to sustain the enhancement, he didn’t request an “insufficient evidence” finding). But, before I reach the double jeopardy benefit, I will identify some other benefits Mehserle received :
1. For the murder (and even though involuntary manslaughter is a lesser included offense of murder, it is still murder in the generic sense) of an innocent, unarmed, and defenseless black man, Mehserle served less than a year of incarceration.
2. The gun allegation charge is treated as if it never happened, i.e., Mehserle didn’t personally fire a bullet into Oscar Grant’s back, killing him.
3. Although Mehserle was , technically, merely granted a new trial, he will never undergo a new trial. Why? See #5 below.
4. Although Mehserle , technically, is convicted of involuntary manslaughter, he can argue to future employers that in fact he was acquitted, based on Perry’s “insufficient evidence” rulings. So, he probably won’t have a problem getting another job, even as a police officer.
5. Perry provided Mehserle with double jeopardy protection with his (Perry’s) “insufficient evidence” rulings. And, this is the clearest evidence that Perry intended to use acquittal language and purpose in his “new trial” order. While ordinarily a defendant is not protected from re-trial of a sentencing allegation found faulty after conviction, the Supreme Court of California in Porter, supra, found that there is an exception to this double jeopardy rule, and that is when a court, usually a court of appeals, finds the evidence was “insufficient” with respect to the sentence allegation. More specifically, the Court stated, “the double jeopardy prohibition barred retrial of the ‘willful, deliberate, and premeditated’ allegation in an attempted murder case after the Court of Appeal’s determination that evidence was insufficient with respect to ‘premeditation and deliberation’ ” (citing People v. Seel, 34 Cal. 4th 535 (2004). And, since the district attorney’s office did not appeal Perry’s decisions, Perry’s decisions are the last word or in lieu of a court of appeals.
Finally, while this Complaint is not centered on the federal prosecution of Mehserle, there is clearly support under Section 242 in which to prosecute Mehserle in federal court (or, in other words , to bring a federal prosecution). There is enough evidence of an intentional killing involving race or color to try the matter in federal court with hopefully a fair judge (and because of Perry’s post-trial rulings, it is clear that he was not a fair judge, although some of his post-trial rulings gave that appearance) and fair jury, in federal court, in or near Alameda County. Here are a few specific reasons why Mehserle should be prosecuted and tried in federal court pursuant to Section 242:
1. He deprived Oscar Grant of his life without due process of law, by shooting and killing
Grant when there was no need to do so in order to subdue or restrain him; and there was no need to restrain him because he had not broken any laws. Indeed, the government did not have probable cause to arrest him, and there is serious question whether there was reasonable suspicion to stop him at all. Again, “Even if Grant resisted arrest, there could be no doubt Mehserle had no right to use lethal force.” Mehserle’s Motion for a New Trial.
Further, even if Mehserle mistakenly thought the gun was a taser when he pulled it from its holster, since Grant was being subdued by another “250 pound” officer, Mehserle had time to check the weapon before he fired it, to make sure he was firing a taser rather than a gun. There was no circumstance of immediacy to fire a gun or a taser unless Mehserle believed Grant was going for a gun (which would be evidence that Mehserle intended to use the gun rather than the taser, and that he intended to kill or cause great bodily harm to Grant). Therefore, even if Mehserle’s pulling of the gun from the holster was “accidental” (and the jury found it was not), it still was “reckless” because he had time to make sure it was a taser before firing it into the back of Grant. And, a reckless use of the gun is sufficient for a murder conviction and for a violation of due process under color of law conviction.
2. The jury found Grant’s killing was not an accident.
3. Even after the jury only convicted Mehserle of involuntary manslaughter, judge
Perry disqualified that verdict by unlawfully and unconstitutionally finding insufficient evidence of the gun allegation.
4. Because Perry acquitted Mehserle of the gun allegation, Mehserle served less than a
year of incarceration for intentionally taking a life.
5. The Alameda County District Attorney’s Office could have and should have appealed
Perry’s rulings, both the new trial grant and the dismissal order, but did not do so. And,
because the D.A. did not appeal, Perry’s rulings will be the last word, and Mehserle will be protected by double jeopardy from a re-trial of the gun allegation and the involuntary manslaughter charge. That’s a violation of Oscar Grant’s due process rights.
6. Without confirmation, it is my understanding that the Mehserle jury did not include
any African Americans ***(as I stated above, I believe this understanding is incorrect; I now understand that there was one African American male juror on the jury), ***however, with America’s racial history, it was basically an “all white” jury.
Cc : Alameda County District Attorney’s Office/David R. Stein, Dep. District Attorney
Cephus Johnson
John L. Burris (on behalf of Oscar Grant’s family)
End
UPDATE --May 23, 2012
It is my understanding in speaking with Oscar Grant's uncle, C. Johnson, that Merserle has now had oral argument on his appeal of his conviction. Again, it was held in cognito, i.e., without any press coverage, e.g., newspaper or television, or public coverage, so that the public, if they did not continuously contact the Court of Appeals, was not aware of the oral argument hearing time and date. So that if the public wanted to attend, they did not because they did not know about the oral argument. Even Oscar Grant's uncle did not know about the argument, and , according to him, he was only informed by the District Attorney's Office after the argument had taken place. According to Mr. Johnson, the DA's office said that they forgot to tell him. How can the DA's office forget to tell a murdered deceased's family member about an appeal argument going to whether a convicted murderer (or manslaughterer) will be freed from his conviction ? It's preposterous, and likely a continuous perpetuation of the racist treatment of Merserle's case, with the intention of ultimately and legally freeing Merserle of his racially motivated murder.
Now we await the outcome of his appeal, of the minor count he was *convicted of for the murder of a black man.
*Denotes a change in the wording.
UPDATE --June 16, 2012
On Thursday, I discovered that the California Court of Appeals has upheld Mehserle's involuntary manslaughter conviction. The decision was produced on June 8th, or thereabout. So why am I just writing about this now? Because I did not know about the decision before Thursday. And, to my knowledge, the mainstream media, including the L.A. Times and the local television stations did not publish anything about it, which is why I didn't know and probably the rest of the majority public did not know (and still don't know) about it. It's disgraceful(and supportive of the racist handling of the Mehserle case). As for the Court's decision, I am neither surprised nor moved. I am satisfied that the Court did what should have been done, but I'm disappointed that the Court did not take the opportunity to specifically find that there was sufficient evidence to support the gun enhancement allegation, and to reverse Judge Perry's decision regarding the same. With its review of the evidence concerning the gun, it could rightfully have rendered a decision on the gun enhancement decision as well. Once Mehserle decided to exercise his right of appeal, he could not prevent the appellate court from deciding any issues directly evolving from the matter he was appealing. That is, since Mehserle was appealing the jury's decision regarding the manslaughter conviction and the gun (and,necessarily, the gun allegation, which was the basis of the manslaughter conviction)and because the two were directly a part of the jury's decision, the Court of Appeals could have directly commented on and decided the issue of the sufficiency of the evidence for the gun allegation, but it chose not to. The government, in its opposition to the appeal, could also have raised the issue. But, it also chose not to (as it did when it chose not to appeal judge Perry's decision dismissing the gun enhancement finding by the jury). So, Mehserle is being supported by the courts (whether directly or indirectly), the government (through its non-actions), and his own counsel (which is expected). So who is helping Oscar Grant? No one. So, Mehserle will continue to walk for the murder of an unarmed, shot in the back, black man. But, there's still hope. Mehserle's counsel has indicated that he will appeal to the California Supreme Court. If so, that will be a final opportunity for the government and the courts to try and render a fair and just decision in the criminal justice system for the murder of Oscar Grant.
UPDATE--April 18, 2013
This update is specifically done for a spelling error that I noticed.
UPDATE--July 26, 2013
This update is specifically being written on behalf of Trayvon Martin of the George Zimmerman/Trayvon Martin criminal murder trial. In an earlier passage written above, I stated, "Moreover, even after the Justice Department has been made aware of some of this information, it has thusfar, not saw fit to bring a federal prosecution either for (Johannes) Mehserle or Judge Perry, so there is no reason why one wouldn't expect it to happen again".
Well, my forecast has proven true. It has happened again! George Zimmerman and judge Debra Nelson. We are now awaiting another decision by the Justice Department as to whether to prosecute George Zimmerman for a civil rights violation. I believe there is a direct link between the two cases, i.e., Oscar Grant and Trayvon Martin, especially the fact that both Grant and Martin are Black male victims and both were shot and killed without adequate justification. Grant was murdered by an actual policeman and Martin was murdered by a "would be or wanna-be" policeman. In both cases, murder charges were brought (and in both cases there were sufficient evidence to support murder charges being brought) and in both cases, the defendant was white or non-black (I believe Zimmerman would be considered a white Hispanic. So that would make him white too). In both cases, the defendant's escape from a murder charge or a more serious charge was assisted by the rulings of a white judge. And, in both cases, the jury was all white or nearly all white (in both cases, only one juror was non-white). I will discuss more fully what role judge Nelson played in the Trayvon Martin case when I discuss why the Justice Department must prosecute George Zimmerman for a civil rights or hate crime violation, in a separate blog.
But the important thing to note here is that I warned the Justice Department that a similar circumstance, especially with a white judge making rulings that assist a white (or non-black) defendant escape guilt for murder, might occur again without the Justice Department pursuing civil rights charges against both the white defendant (Mehserle), where warranted, and the white judge (Perry), where warranted. I believe charges against both were warranted in the Oscar Grant case and might have prohibited the behavior in the Martin case. Here, again, in the Martin case, I believe the Justice Department has a valid basis for pursuing civil rights charges against both Zimmerman and judge Nelson. While judge Nelson certainly would have a stronger defense against the civil rights charges than Zimmerman because her violations occurred during the course of criminal proceedings and she was exercising judicial authority, there is clearly a colorable case of civil rights violations by her.
Again, I will discuss judge Nelson's violations more fully in a separate blog. Look for it.
**UPDATE--August 27, 2013
I have now written a separate blog discussing the actions of judge Debra Nelson more fully and also argued why I believe the Justice Department should prosecute both George Zimmerman and Johannes Mehserle. I also discussed white racism and white justice. Finally, I suggested that the Justice Department should make an accelerated decision as to whether it will prosecute either one or both of the men.
See the blog, entitled, "The Murder of Trayvon Martin and Judge Debra Nelson: Another case of white racism and white justice. . . ."
