Towering obstacles in prosecuting the Oscar Grant killing

Earl Ofari Hutchinson | 1/13/2009, 5:57 a.m.

Towering obstacles in prosecuting the Oscar Grant killing

There’s a good chance that former Bay Area Rapid Transit (BART) police officer Johannes Mehserle will be charged in the videotaped New Year’s Day killing of Oscar Grant, a young African American, in Oakland. But getting a conviction in the fatal shooting will be a far different matter.

On the surface, the case seems to be about as close to a slam dunk for a successful prosecution as any suit involving apparent police misconduct could be. There are at least two compelling videos that appear to show an unarmed and handcuffed Grant face down on the BART platform. Grant does not appear to be resisting the officers. Witnesses testified that Grant posed no threat to the officers. BART officials have offered the weak explanation that Mehserle might have mistakenly thought that he was reaching for his Taser gun. But expectations, witness testimony, videos and an implausible explanation by BART for the deadly shooting may not be enough to nail Mehserle.

The first obstacle to convicting cops charged with deadly force is the use of videos. Defense attorneys who represent cops charged in questionable fatal shootings have honed the discrediting of videotaped evidence to a fine art.

In a number of highly charged cases in cities across the country where the videos of police abuse have been widely televised to shocked millions, skilled defense attorneys have still won acquittals. They tell jurors that the videos are grainy and fuzzy, that the sound and recording quality are poor, that the tapes have missing pieces, and they omit events that show what provoked the officer to use force. They pound home the notion that such videos can be interpreted in many different ways. Their spin to jurors is that videos give a distorted, clouded and therefore invalid picture of why an officer may have used deadly force.

Defense attorneys don’t stop there. They also question the honesty, motives and background of the videographers. In the Grant killing, the two videos that were widely shown were shot by two young persons with cell phone cameras, one of whom refused to give his name.

In the rare occasions that a prosecutor brings charges against an officer for overuse of deadly force, the officers’ defense attorneys are top-notch and have had much experience defending police officers accused of misconduct. Police unions pay them and they spare no expense in their defense. The cops almost never serve any pre-trial jail time, and are promptly released on ridiculously low bail.

The next obstacle is the investigation. Police officials and prosecutors move at a deliberate, even glacial pace in compiling evidence, witness testimony and officer statements. The time delay works to the officer’s advantage, ensuring that their version of why officers used force is in total sync with the version given by other officers present. Mehserle’s quick resignation after the Grant shooting further blurs things — by leaving the department, he evaded an internal investigation and giving possible damning statements.

Then there’s the jury. Police defense attorneys seek to get as many middle-class whites on the panel as possible; the presumption is that such jurors are much more likely to believe the testimony of police and prosecution witnesses than black or young witnesses, defendants or even the victims. That’s no small point. In the great majority of deadly force killings, the victims are young African Americans, as Grant was, or Latinos, and the witnesses generally are young people and/or minorities, as was the case in the Grant killing.