Every major motion decided in the case to date has raised fundamental question of quality. The decision to move the trial to LA because of adverse publicity in Oakland (a defense motion almost never granted outside of police trials) greatly enhanced the chance that no African Americans would serve on the jury, a possibility that came true yesterday when a jury was seated without a single African American member with the defense using troubling preemptory challenges to remove three. Remarkably, most experts quoted by Paul T. Rosynsky in his reporting for the Oakland Tribune focused were sanguine about the impact of the absence of a Black perspective in the jury.
"I don't think any of us would say that if you were black that would be an automatic guilty vote," said Michael Cardoza, a Northern California civil and criminal attorney. "When the district attorney (agreed to the jury), he liked the 12 people that he had compared to what was remaining.
"In fact, former prosecutor and now criminal defense attorney Darryl Stallworth said he has witnessed numerous cases in Alameda County in which black jurors made decisions against other blacks, including in the "Riders" Oakland police misconduct case.
During that case, in which three Oakland police officers accused of criminal misconduct were defended by the same attorney representing Mehserle, a black juror served as a foreman of a jury that acquitted the officers, Stallworth said.
"I have never had a case, either as a prosecutor or a defense attorney, where I felt that if I had more African-Americans on the jury, the case would have had a different outcome," Stallworth said. "It shouldn't matter at all."
Added Laurie Levenson, a professor at the Los Angeles-based Loyola Law School: "In this day in age, it is not fair, and it is a little bit racist, to say you have to be black to have empathy for blacks."
In another significant victory for the defense, the jury will learn about previous encounters with the police where Oscar Grant tried to escape or resisted arrest. This highly prejudicial information about possible past misconduct is being permitted in to allow Mehserle to argue that Grant's behavior that night signalled a degree of danger to a professional police officer that was not obvious to viewers of the video. In a significant victory for the prosecution, however, Mehserle's lawyer will not be allowed to tell the jury that Oscar Grant was on parole following a state prison sentence at the time of his encounter with Mehserle.
What neither side is likely to tell the jury is that both Mehserle and Grant were bit players in a low intensity civil war that has been fought in cities like Chicago, Oakland, and Los Angeles, at least since the 1960s. Much like the Irish troubles that began in those years, any particular incident can be analyzed as a problem of choice and malice. Why did Oscar Grant, who had a baby daughter he was proud of, a job and a girlfriend, engage in activity that got him arrested in the first place (know he was on parole and could be sent back to prison in a blink)? Why did Mehserle, who already had Grant prone on the ground and was surrounded by other police officers ever decide to Taser Grant at all (his apparent "accident" defense). In each case, the conflict was scripted long before this particular incident. Grant was no hardcore criminal, as his social ties and economic role attest, but he had already accumulated enough convictions to send him to state prison as a young man, the fate of the majority of black men who grow up in Oakland. Mehserle was on the other side, a soldier in a war on crime where the enemy has a presumptive face (black or brown).
In the end the jury will be asked to decide whether in Mehserle's trained eyes, Grant was so much of a threat that he felt endangered enough to be reaching for a serious weapon (the taser) and accidentally drew and fired his service revolver. If he is convicted of murder, Mehserle will serve at least 16 years in state prison (although average 2nd degree lifers serve a good deal more). If he is acquitted or the jury hangs (quite likely), the streets of Oakland will be the location for yet another enactment of our forty year civil "war on crime."
Unlike the Irish troubles, or the Israel/Palestine conflict, it is hard to imagine what a political settlement would look like, or who exactly could negotiate it. It might include a pardon for Mehserle (if he is convicted) and parole for long serving California prisoners convicted of killing law enforcement officers (who generally face a blue wall for resistance to parole no matter how much they have changed their lives). It must include a different public safety model for cities like Oakland, one that does not produce "order" by arresting black and brown young men.