The Mehserle Case: What’s Next?


Oscar Grant’s family is reported as looking into their options regarding the minimal sentence handed down in the Mehserle case.

What Are Their Options

The first question is whether the sentence was wrong.

My take on it: The sentence wasn’t wrong, given the verdict of involuntary manslaughter and Mehserle’s background (I have already said as much on TV).

But the verdict itself may not have been an expression of the jury’s true beliefs. The blame for this lies in the judge’s instructions. The judge essentially wrote a possible verdict of “implied malice” second-degree murder out of the case.

The key instruction tells the jury that, if they buy Mehserle’s story that he believed that he was using a Taser and not firing they must acquit him of murder and voluntary manslaughter.

This precludes consideration of the argument that Mehserle’s failure to use care in determining which weapon he was using showed a conscious disregard for human life, and, therefore, “implied malice.” (I have also said this on the air.)

Had the jury considered and accepted this argument, the correct verdict would have been second-degree murder and the minimum sentence would have been 15 to life (up to 35 to life if the gun enhancement has also been found true.)

So, it would not be a big stretch to say that Mehserle got away with murder if the jury thought that he was careless in determining which weapon he was firing.

What, then, are Grant’s family’s options?

First: The unusual way in which the judge “threw out” the gun enhancement leaves the door open for an appeal by prosecutors. The prosecution generally has no appeal from a loss in a criminal case, but this is one of the exceptions. The court ordered the gun enhancement dismissed under Penal Code section 1385. The prosecution can appeal a dismissal under 1385. The prosecution might also seek a writ (think appeal on the fast track) so that they could get a decision before Mehserle gets out of prison.

There would then be a new trial on the gun enhancement alone. This trial would raise all the same issues of “mistake” and “confusion” that were central to the first trial.

Second: There may be a federal prosecution. The feds have been investigating the matter for some time and monitoring the outcome in the state case. Several Alameda County civic leaders have already spoken to the  United States Attorney General about pursuing federal criminal charges.

There were a lot of comparisons of the Michael Vick sentence (4 Years) to the Mehserle sentence (2 years). The implication is that the system is unfair because it punishes the abuse of a dog more severely than the killing of a man. The comparison is unfair. Sentencing in the federal system is much more severe than in the California system, as Mehserle will discover if he is convicted of a federal civil rights violation resulting in death.

Finally: The family is pursuing a civil suit. More and more, it is the civil case following these high-profile criminal cases that produce justice. We all remember that OJ was found liable in the civil case, after an acquittal in the murder case.

Stay tuned for more developments.