(06-04) 15:12 PDT OAKLAND -- Former BART police Officer Johannes Mehserle was ordered Thursday to stand trial for murder by a judge who told him he didn't believe the explanation defense attorneys gave for his killing of an unarmed passenger.
After listening to seven days of testimony, Judge C. Don Clay concluded that Mehserle hadn't gotten his stun gun and his service pistol mixed up when he shot Oscar Grant in the back at the Fruitvale Station in Oakland early New Year's Day.
"There's no doubt in my mind," Clay said at the close of the former officer's preliminary hearing in Oakland, "that Mr. Mehserle intended to shoot Oscar Grant with a gun and not a Taser."
The decision set up the first murder trial of a California peace officer for a line-of-duty killing in nearly 15 years. It prompted sobs of relief from Grant's family members, who spoke of having a sense of justice restored.
"This is going to be huge for people of color," Cephus Johnson, Grant's uncle, said outside court. "The community lacks faith in the judicial system when it comes to police officers."
Mehserle, who is white, was not accused by prosecutors or Grant's family of a racial motive in the shooting of Grant, a 22-year-old African American who lived in Hayward and worked at an Oakland supermarket.
But the outcry over Grant's death had racial overtones, with some African American leaders complaining that police officers often avoided consequences after brutalizing black people.
Mehserle, 27, showed little reaction as Clay made his ruling in Alameda County Superior Court. But earlier in the day, as Clay pushed defense attorneys to wrap up their case, Mehserle's father reacted angrily and suggested the hearing had been unfair.
"No justice in Oakland," said Todd Mehserle, a Napa resident, loud enough for reporters who were in court to hear. "They want to see what they want to see. This town is a sham."
Seven days of testimony
During the preliminary hearing, Clay heard prosecutor David Stein and defense attorney Michael Rains spar over whether Grant had resisted arrest, whether he had his hands behind his back when he was shot and whether the train platform had been chaotic and scary for officers.
One crucial point of disagreement was whether Mehserle acted like a man who had accidentally fired a gun.
Rains, who argued that Mehserle lacked the malice necessary for a murder charge, said in his closing remarks that the officer had intended to stun Grant with a Taser after thinking that he saw Grant reach for a gun.
Mehserle announced to a second officer, "I'm going to Tase him," Rains said, and then blurted out "Oh s-" after firing his pistol.
"We have an intent to tase," Rains said.
But Stein referred to his last witness on Thursday, BART police Officer Terry Foreman, who spent more than five hours with Mehserle after the shooting and spoke to his friend and colleague in subsequent days.
No talk of Taser
Foreman testified that Mehserle, at times crying, had talked about the shooting - saying, "I thought he had a gun," and, "He was going for his pocket" - but had never once said he meant to fire his Taser.
Stein said Mehserle had also never mentioned his Taser while on the platform.
"Human nature tells us that not only would (Mehserle) have acted differently on the platform, I don't think you would have been able to shut him up," Stein said. "I think he would have said repeatedly, to anyone who would listen, 'Oh my God, I made a mistake.' "
In the end, the judge said Mehserle's state of mind remained a mystery because the officer had never spoken to investigators and hadn't taken the stand at the hearing. Clay said he had never heard of an officer-involved shooting in which the officer never made a statement.
Mehserle resigned rather than talk to BART police internal affairs investigators.
Range of possibilities
Clay said Mehserle's apparently stunned reaction after the shooting could have indicated many things - including that the officer couldn't believe he had shot an unarmed man in front of hundreds of witnesses.
The judge said earlier in the day that Mehserle's statement to other officers that he thought Grant had a gun "changes the dynamics."
"It's deadly force against deadly force," Clay said. "That might be his mind-set."
As for the Taser explanation, the judge noted that testimony showed Mehserle had held his weapon with both hands, whereas the right-handed officer had been taught to hold a stun gun with his left hand.
Clay also said Grant and four friends who were detained with him at the station for allegedly fighting on a Dublin-Pleasanton train "did nothing to justify the use of deadly force."
Stein played video footage Thursday that called into question the actions of the officer who detained Grant and made the decision to arrest him for allegedly obstructing police.
The officer, Tony Pirone, testified earlier that Grant had belittled him for being a transit officer and called him a profane name.
Stein's video clip appeared to show Pirone mocking Grant before his arrest by leaning in near his face and shouting the same profanities back at him. Then, when Grant is forced to the ground, someone can be heard shouting, "Yeah!"
Stein said it was Pirone, though the officer said he didn't remember.
"I don't know why I would say that," Pirone said of the exchange. "That's not language I would normally use."
The defense also presented key evidence Thursday after calling a video expert to the stand.
The expert said prosecutors' assertion that Grant had his hands behind his back when he was shot was wrong. He showed an image that he said captured the exact moment of the shot; Grant's left hand appeared to be in the air and moving toward his back.
But Clay cut short the testimony, saying he didn't need expert help to understand the footage.
Mehserle remains free on $3 million bail. He was ordered to return to court June 18 to be arraigned.
E-mail Demian Bulwa at email@example.com.