Posted on 10/20/2009 7:56:36 AM PDT by SmithL
OAKLAND — Although changing venues for criminal trials has become a rarity in the state, a decision by an Alameda County judge last week to move the murder case against a former BART police officer was not a surprise, criminal law professors and attorneys in the field said Monday.
Professors and attorneys said community outrage against the Jan. 1. killing almost assured the trial would be moved.
"If there is ever a case you would expect a change of venue, it would be a case like this," said David Sklansky, a professor at UC Berkeley's Boalt Hall School of Law. "I don't think it was a shock."
Johannes Mehserle is accused of murder in the fatal shooting of Oscar Grant III, a 22-year-old Hayward resident. In granting the defense's request for a venue change, Superior Court Judge Morris Jacobson said the case met all but one of six factors that he had to consider.
Jacobson appeared to be most concerned with the repeated protests that have occurred outside Alameda County's Rene C. Davidson Courthouse and how those protests would affect a jury that will be asked to decide a "close" case.
In making its final decision, a jury in the Mehserle case will have to decide the 27-year-old former officer's state of mind at the time of the shooting: Did he purposely shoot and kill Grant or was it an accident as the defense has argued?
That decision, Jacobson said in his ruling, will be tough, and the potential that an Alameda County jury would be swayed by concern that their decision could spark violence would be high.
Professors and legal experts agreed.
"Once you consider the depth of anger and outrage around the case ... it was almost inevitable that it would be moved," said Jim Hammer, a former San Francisco deputy district attorney. "You just have the real risk here of something tainting the jury, of someone suddenly being pressured to decide a certain way."
While most agreed that media attention surrounding the case in Alameda County will follow it to whatever county plays host to the trial, a jury selected in another county will not be concerned about the impacts of its final decision.
"Is there a county in California that did not have the extensive media coverage? It's hard to imagine that anyone in the state of California hasn't seen the videos," said Kara Dansky, executive director of the Stanford Criminal Justice Center. "But it still remains that whatever community receives this case, the people in that community will not be concerned about the threat of violence in the wake of their verdict."
In addition, some experts said, moving the case to another location blocks defense attempts to overturn a verdict on appeal.
"This ensures that if there is a conviction, it is going to stand," Hammer said. "It takes away a chance for appeal."
Where the case finally is located will be the next major battle between defense attorneys and prosecutors, the experts and professors said.
Jacobson notified the state's Administrative Office of the Courts on Friday that a change of venue motion was granted, starting a two-week-long clock for that office to come up with recommended locations.
Those recommendations will be based on the host court's agreeing to take the trial and its ability to do so. The host court must be able to handle the media attention, security provisions and have room in its courthouse for a high-profile trial.
The demographics of the host county probably will be considered, although court rules do not make it a mandate.
"It doesn't have to mirror the district it is coming from, but certainly if there are major differences that will be taken into account," said Laurie Levenson, a professor at Loyola Law School who has written about change of venue in California. "I don't see it being transferred to Yolo County. I would say any major metropolitan area would be appropriate."
Jacobson will make the final decision where to locate the trial, and Hammer said demographics will play a major role in his decision.
"The victim has a right to a fair trial as well. The defense should not be able to game this by moving it to a suburban white county," Hammer said. "Finding a similar demographic will help the public be secure that it will be a fair trial."
There’s nothing like the threat of riots to help sway a jury.
This shoot appears to be highly questionable.
This is the only case I have ever seen that deserves a good old-fashion lynching...and I say that without any humor.
This cop should have done the people a favor and swallowed a bullet.
The process matters, even though the outcome is not in reasonable doubt given the evidence.
how typical of liberal thought Jim Hammer’s assumption that white people cannot judge the evidence fairly.
In point of fact the victim is not on trial and doesn’t have
any special rights here. No matter how cut and dried the
evidence, presumption of innocence and the need for a fair trial ought to trump racial grandstanding.
It’s going to be a hard case to prove the mens rea for murder.
It doesn’t matter, someone will go wild and riot no matter the outcome. I feel for Oakland.
This was a terrible tragedy. An accident. Can you imagine the outrage if the cop had been black? Or if the victim was white? Oh wait. You’re right. No outrage. No fuss. Just due process.
It ain't "racial grandstanding" when it takes two weeks to arrest the cop you have executing a kid on seven different videos.
Are you sure you know what case this is?
This was nothing but an execution.
If it was an execution, why shoot him once in the back, when a headshot or a series of headshots, would do the job much more efficiently? The shot in the back did not do the job it seems, since Grant died six hours later.
Why does the testimony of the other officers on the scene say that Mehserle was visibly distraught over the shooting, saying “Oh my God, oh my God” over and over again?
There is no way they are going to get murder 1st or even 2nd. Manslaughter, yes.
You would certainly want justice if you were the accused
wouldn’t you?
Or would a rush to judgement followed by a necktie party with you as the guest of honor be ok...?
Well, at least we agree on probable outcome but it’s a shame you wish to see more riots. Rioters always tear up the innocent people’s property and innocents get hurt or killed.
Somehow I don’t think the police are going to let the rioters try and take any revenge against them.
Puh-leeze. This was no more an "accident" than the crashing of two jets into the WTC.
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