Attorney Michael Rains said another BART officer reported hearing Mehserle say just before shooting Oscar Grant that he was going to "tase him." Afterward, Mehserle told the other officer he thought Grant had been reaching for a gun, Rains said.
Although Judge Morris Jacobson agreed to give Mehserle a chance to bail out of Santa Rita Jail, he attacked Rains' account of the shooting early New Year's Day as inconsistent. Mehserle appears willing to "make up something that's not true" to escape consequences for shooting Grant, Jacobson said.
Still, at the close of an hourlong hearing in Alameda County Superior Court, Jacobson said the former officer did not appear to be a public menace and set bail for him at $3 million. Mehserle, who has been jailed since Jan. 13, was still at Santa Rita late Friday, sheriff's deputies said.
Mehserle appeared at the Oakland hearing, wearing a red jail-issue jumpsuit, but said nothing.
In courtroom comments and in a motion that he filed seeking bail, Rains for the first time laid out Mehserle's defense for the shooting, which happened as police were trying to arrest Grant for resisting an officer.
The attorney quoted statements that several other officers and witnesses gave to authorities and referred to evidence from the scene.
'Tragic accident'
Rains told the judge that the shooting was a "tragic accident." At most, he said, Mehserle should be facing manslaughter charges, not murder.
He said BART Officer Tony Pirone had reported hearing Mehserle say just before shooting Grant, "I'm going to tase him, I'm going to tase him."
Jacobson, however, expressed skepticism, noting that Pirone had also told investigators that Mehserle, after the shooting, said, "Tony, I thought he was going for a gun."
The assertion that Mehserle meant to fire his Taser "appears to me to be a change in his story," Jacobson said. "He has a willingness to add to the story, to change the story, to make up something that's not true to avoid consequences."
Jacobson also said Grant was "clearly no threat to Mr. Mehserle," whom he accused of having a "character flaw" that allowed him to use lethal force.
The prosecutor in the case, John Creighton, also questioned whether the defense account made sense.
"If he intended to pull his Taser and pulled his service weapon by mistake, why would he say to another officer after the fact, 'I thought he was going for a gun'?" Creighton said in an interview before the court hearing. "Why wouldn't he say, 'Oh, my God, Tony, I meant to pull my Taser' or something to that effect?"
Jacobson scheduled a preliminary hearing of the evidence in the case for March 23. The judge also issued a gag order on attorneys in the case, effective at least until a Feb. 10 hearing.
Relatives of both Mehserle and Grant cried in a courtroom guarded by a security detail of nine sheriff's deputies. Outside the courthouse, protesters could be heard chanting, "We are Oscar Grant."
Later, the protesters spilled onto the street to demand that Mehserle remain jailed, prompting scores of police officers to respond and disperse the crowd.
An attorney representing Grant's family members, John Burris, said they were disappointed that the judge had agreed to set bail. He said evidence in the case - including camera footage of the shooting - suggested that the officer had meant to fire his gun, not his Taser.
Defense 'not surprising'
"That's a defense that's not surprising, as much as it's been talked about," Burris said. "I would only say that, No. 1, the Taser shouldn't have been used, either. There wasn't any basis for that. And No. 2, the facts on the videotape don't support that as an argument."
It was not immediately clear whether Mehserle would be able to post bail and be released. Before the hearing, Rains said that Mehserle could not afford a high bail but that his parents were prepared to put up money.
Rains told the judge that Mehserle will always "live with the infamy" of killing Grant. But he said the shooting happened during a chaotic scene on the platform of the Fruitvale Station.
Mehserle, 27, and other BART officers had detained the 22-year-old Grant and four of his friends just after 2 a.m. while investigating reports of a fight aboard a Dublin-Pleasanton train. Two people on the train told police that about 20 people had been involved in what amounted to a "barroom fight" and that the participants were "hammered and stoned," Rains wrote in his bail motion.
Rains said Mehserle had been in a tough situation, trying to handcuff Grant after being told Grant was under arrest for resisting an officer. Rains quoted Pirone as saying Grant had disobeyed instructions and cursed officers.
Rains' bail motion said Grant, after learning he was to be arrested, "attempted to stand up, but was forced to the ground face-first." Mehserle and Pirone ordered Grant to put his hands behind his back to be handcuffed, but Grant resisted, Rains wrote.
'Stop resisting'
According to the motion, "Pirone said he heard Mehserle say, 'Put your hands behind your back, stop resisting, stop resisting, put your hands behind your back.'
"Then Mehserle said, 'I'm going to tase him, I'm going to tase him. I can't get his arms. He won't give me his arms. His hands are going for his waistband,' " Rains wrote. "Then Mehserle popped up and said, 'Tony, Tony, get away, back up, back up.' "
Rains wrote that several witnesses described Mehserle as looking stunned after he shot Grant. One said Mehserle "had an expression on his face like, 'Holy s-, what happened, or what did I do, with his hands around his head,' " the attorney wrote.
Oakland police investigators said in a court affidavit that Grant put up a brief struggle but was lying facedown, with both hands behind his back, when Mehserle shot him.
Rains said Mehserle had received six hours of Taser training just three weeks earlier and had yet to use the device on the job.
BART said it bought 64 Taser X26 stun guns last year and began to place them into service Sept. 9. Mehserle shot Grant with his Sig Sauer P226 semiautomatic pistol.
This article appeared on page A - 1 of the San Francisco Chronicle
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