Grant family lawyer Burris under gag order; defense video expert to testify

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June 1, 2010

Cephus, Wanda and Daryl Johnson speak with members of the media June 1. (James Keith/California Beat)

(6/1) — 12:15 PDT — LOS ANGELES — The judge in the second-degree murder trial of Johannes Mehserle, the former BART Police officer who shot unarmed passenger Oscar Grant on New Year’s Day 2009, ruled today that the testimony of a key defense expert witness would be allowed at trial.

Judge Robert Perry also ruled that Grant family attorney John Burris is subject to the gag order covering trial participants, even though he is unlikely to be called as a witness in the trial.

Perry also extended the gag order to include lawyers for BART who are representing the agency in the civil case against Grant’s family.

At today’s hearing, Michael Schott, an expert on forensic image analysis, gave testimony in order for the judge to decide on whether it would be allowed at trial.

Questioned by defense attorney Michael Rains about a video, widely shown in the media, which appears to show former BART Police Officer Tony Pirone punching Grant in the face minutes before the shooting, Schott said that the apparent punch was actually a light reflecting off Grant’s forehead.

He referred to what he said was video taken from a different angle at the same instant, which appears to show Pirone’s open hand near Grant’s head.

Schott also presented video frames which he said showed that Grant’s left shoulder was moving up from the platform at the time of the shot. The prosecution is expected to claim that Grant was lying flat on the platform at the time of the shooting.

Prosecutor David Stein argued that Schott’s testimony on the interpretation of the video was inadmissible at trial, saying that an expert witness should not be allowed to say “trust me” about the contents of a video that the jury could interpret for itself, especially since most people are exposed to video “everyday.”

The judge, however, disagreed. ”I found his testimony to be very helpful,” Perry said, adding that he believed some of Schott’s testimony could actually be helpful to the prosecution.

Schott’s testimony only shows “the police side” of the story, Grant family member Daryl Johnson told the Beat after the hearing. Schott is “working to protect” Mehserle, Johnson said, saying he was “disappointed that [Schott’s] opinion was admitted.”

Cephus Johnson, Grant’s uncle, said at a a press conference after the hearing that Rains is “causing all these distractions.” He said the key fact remained that Grant “was lying face down” when Mehserle drew his weapon and shot him.

Notably silent at the post-hearing press conference was Grant family attorney John Burris, who was placed under the gag order covering trial participants at the hearing.

Carl Douglas, the high-profile lawyer representing Burris at the hearing, argued that Burris is “simply a member of the public” with regards to this trial, and said a move to gag him would be “unusual.”

But Perry said that Burris is representing “so many” of the witnesses in the trial that he shouldn’t be allowed to make “public pronouncements” regarding it, even though he is unlikely to testify in the trial.

Perry also extended the gag order to the lawyers defending BART against the $50 million civil suit brought by Burris on behalf of the Grant family.

Jury selection begins tomorrow in Los Angeles, where the trial has been moved due to concerns regarding whether Mehserle could receive a fair trial in Alameda County.

Opening arguments in the case are expected on June 10.

Beat Reporters Steven Luo and James Keith reported from Los Angeles. Contact Steven Luo at sluo@californiabeat.org.


Grant family lawyer Burris under gag order; defense video expert to testify was published on June 1, 2010 in Mehserle Trial

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