Lawyer: Officer may have pulled wrong gun

January 31, 2009 6:02:34 AM PST
The transit officer who shot and killed an unarmed man may have mistakenly pulled his service pistol instead of a stun gun, his lawyer said Friday. [SIGN UP: Get headlines and breaking news sent to you]

Defense attorney Michael Rains made the argument during a bail hearing for 27-year-old Johannes Mehserle. Alameda County Superior Court Judge Morris Jacobson later set bail at $3 million.

Jacobson said he set the high amount in part because he considered Mehserle a flight risk after the former officer fled to Nevada during the initial investigation.

Mehserle was being held Friday at Santa Rita Jail in Dublin. It was not immediately clear if he would be able to post bail.

Mehserle has pleaded not guilty to one count of murder in the death of 22-year-old Oscar Grant, who was killed early New Year's Day. Cell phone videos of the incident, widely viewed on the Internet, showed the officer standing over Grant as he was lying facedown on an Oakland train platform and firing one shot into the man's back.

Grant died of a gunshot wound to his torso.

Rains argued Friday that witness accounts indicate that Mehserle meant to draw his Taser but instead pulled his pistol. The lawyer blamed inexperience by the young officer, who joined the department in March 2007 and passed his Taser user certification test on Dec. 3.

"The bulk of the discovery, including witness and officer statements, seem to indicate that this young officer, who carried a taser for only a few shifts prior to this event, may have mistakenly deployed his service pistol rather than his taser, thus negating any criminal intent," Rains wrote in court documents filed in support of the bail motion.

He told the judge that prosecutors should have charged his client with involuntary manslaughter, not murder.

The court documents contain statements and reports from several officers who were on the platform with Mehserle at the time of the shooting.

The officers -- who had just pulled several men, including Grant, from a Bay Area Rapid Transit train after reports of fighting -- described the scene as chaotic and confusing.

According to a statement from Officer Tony Pirone, Mehserle told Grant to stop resisting and put his hands behind his back. Then, according to Pirone's statement, Mehserle said: "I'm going to taze him, I'm going to taze him. I can't get his arms. He won't give me his arms. His hands are going for his waistband."

Pirone said he didn't know if Grant was armed, but said Mehserle told him he had believed Grant may have had a weapon.

But Deputy District Attorney John Creighton questioned the defense's account at Friday's hearing, asking why Mehserle said after the shooting that he thought Grant was armed rather than saying he thought he was firing his Taser.

The judge also noted inconsistencies in the defendant's account of the shooting.

"He has the willingness to add to the story, to change the story, to make up something that's not true to avoid consequences," said Jacobson, who imposed a temporary gag order in the case until the next hearing, on Feb. 10.

John Burris, an attorney for Grant's family, said relatives were "very, very disappointed."

"In a case of this magnitude, it was certainly our hope that no bail was set," he said.

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