Mehserle’s defense may call Grant family attorney to testify

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May 17, 2010

The defense attorney representing Oscar Grant's family, John Burris, addresses reporters outside a Los Angeles courthouse during a pre-trial hearing for former BART officer Johannes Mehserle. (James Keith/California Beat)

The attorney for BART shooting victim Oscar Grant’s family said Monday that he would fight a legal request by the defense for Johannes Mehserle, the former BART Police officer charged with second-degree murder for the New Year’s Day 2009 shooting, to compel him to testify as a witness.

In a subpoena request dated May 11, attorney Michael Rains says that John Burris, who represents the Grant family in a $50 million wrongful death lawsuit against BART, could provide “testimony concerning threats or intimidation” of witnesses who “may be reluctant to give testimony which would ostensibly be helpful to Mr. Mehserle and harmful to Mr. Grant.”

Rains alluded to a Feb. 5 news conference at Burris’s office where the lawyer criticized BART for disclosing the personal information of some of his clients involved in the civil case against the transit agency, saying that the disclosure potentially endangered his clients’ well-being.

“It’s highly unusual and a bit surprising,” Burris said of the request. “I don’t know if it’s a genuine move or not,” he told the Beat, saying that he didn’t have any evidence that would help Mehserle’s defense.

If Burris does indeed testify, it will set up a potentially electric courtroom confrontation between one of California’s most prominent lawyers who represents victims of alleged police misconduct and one of the state’s leading defenders of police officers accused of such crimes.

Burris, who also represents the witnesses at issue, said that all of them had already been interviewed by Rains’s office and the prosecution, and that any conversations he had with them would be protected by attorney-client privilege.

But California Beat legal analyst Preston Thomas says that Burris may already have “shot himself in the foot” if he wants to claim attorney-client privilege.

“By talking about privileged matters at a press conference, he has opened the door to an argument that he’s waived the privilege with regard to that whole subject,” Thomas explains. “If he can’t claim it’s protected, then he can be compelled to talk about it on the stand.”

Thomas says that the defense may want Burris’s testimony in order to hold the witnesses he represents to their previous stories.

Rains is “getting his 200 pound credibility destroying mallet ready” — testimony which would suggest that they had been intimidated — in case they change their stories on the stand, Thomas says.

Burris said that he has not yet received a subpoena. “If I do, I’ll retain counsel and we’ll go to court,” he said.

Having Burris testify in Mehserle’s murder trial would also have the side effect of putting him under the gag order which prevents trial participants from sharing information with reporters, Thomas notes. Burris has so far been outspoken in his criticism of BART and Mehserle in the media.

Besides Burris, Rains’s list of potential witnesses at trial includes 26 other people. The list includes Tony Pirone, the former BART Police officer who was caught on video punching Grant in the face shortly before the shooting, but excludes Marysol Domenici, another former officer who was present that night.

“Domenici was a terrible witness” at the preliminary hearing which resulted in Mehserle’s case being sent to trial, Burris said, suggesting that the defense wouldn’t want her to testify at the trial.

The list also includes three expert witnesses whose testimony could be crucial to the outcome of the trial, but have been challenged by the prosecution.

The scope of testimony of Greg Meyer, a retired police captain and expert on Tasers and the use of force in general, and William Lewinski, a professor at Minnesota State University-Mankato who studies use of force in stressful situations, was restricted by Judge Robert Perry at a pre-trial hearing May 7th.

A hearing will be held June 1 in Los Angeles to determine what part, if any, of Michael Schott’s testimony will be admitted. Schott is a video expert whom the defense is requesting be allowed to testify regarding the interpretation of certain parts of the videos of the events leading up to the shooting.

The prosecution objects to the proposed testimony, arguing that it is up to the jury to decide what the videotapes show.

Jury selection in the case is expected to begin June 2, with opening arguments expected approximately a week after that.

Filings in this case are available from the Los Angeles County Superior Court’s website.

Contact Steven Luo at sluo@californiabeat.org.


Mehserle’s defense may call Grant family attorney to testify was published on May 17, 2010 in Mehserle Trial

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