News Can the cop who fatally shot a man at Oakland station be tried again by DoJ?

[Office_Shredder]

I'm sure some of you remember the cop who says he intended to taser someone at a subway station in Oakland, only to pull out his gun and kill the guy

http://www.cbsnews.com/stories/2010/07/09/national/main6661809.shtml?tag=stack

He was convicted for involuntary manslaughter, and now apparently the DoJ is investigating the case. Isn't there some sort of double jeopardy thing here that would prevent him from being prosecuted?

 

[leroyjenkens]

It looks like involuntary manslaughter. What else could it be? I doubt he meant to shoot him in the back with a real gun, even though it's hard to believe he thought he was holding a taser.

 

[russ_watters]

Yes, double jeopardy would apply - as would jurisdiction (the feds have none).

And I agree with leroy - I don't see that there is any reason to believe this was an intentional act. Being hard to believe that it was unintentional is not evidence that it was intentional and thus it is impossible to convict him of intentional killing.

 

[KalamMekhar]

BLACKHAWK! makes Taser holsters that are meant to be pulled down and out, unlike a pistol where it is straight out. I am not sure if he was using a proper Taser holster or not, but it seems as though he should have had much more awareness of what his current weapon was (the grips are much different). Easy for me to say in hindsight though.

 

[chemisttree]

I think it's second degree murder. Tasers don't feel like 9mm handguns. The perp was lying on the ground, face down so the "rush to judgement" was entirely unnecessary and cavalier IMO.

Definition of 2nd degree murder from FindLaw... "a killing caused by dangerous conduct and the offender's obvious lack of concern for human life."

Shooting a prone suspect in the back with a 9mm qualifies. The "I didn't know it was a gun, thought it was my Taser," defense is just sickening.

What a weird place LA is. Boycott AZ for 1070 but let this guy off with manslaughter.

Its a mad world.

 

[russ_watters]

The "I didn't know it was a gun, thought it was my Taser," defense is just sickening.

Your belief that he knew it was a gun cannot possibly be strong enough - based on evidence - to be "beyond a reasonable doubt".

 

[chemisttree]

Your belief that he knew it was a gun cannot possibly be strong enough - based on evidence - to be "beyond a reasonable doubt".

That is part of the sickening aspect of the defense. Anyone can use that defense and get away with it -based on evidence- of course. Too bad that the words 'reasonable doubt' are used in that definition. I think the officer is guilty beyond a reasonable doubt. Is it reasonable for me to doubt that he doesn't knows the difference between his lethal and non-lethal weapons? Is it reasonable to expect that this officer should know the difference between a Taser and a 9mm by feel? By sight? By the side he holsters his two weapons? Did he have any training at all? It is reasonable that he should know these things and that he was trained to kill or to incapacitate. Therefore it is not reasonable that he should use that asinine defense and expect it to produce a "reasonable doubt" in the jurors.

Guilty of murder in the second degree IMO.

 

[brushman]

Looks like manslaughter to me.

 

[leroyjenkens]

That is part of the sickening aspect of the defense. Anyone can use that defense and get away with it -based on evidence- of course. Too bad that the words 'reasonable doubt' are used in that definition. I think the officer is guilty beyond a reasonable doubt. Is it reasonable for me to doubt that he doesn't knows the difference between his lethal and non-lethal weapons? Is it reasonable to expect that this officer should know the difference between a Taser and a 9mm by feel? By sight? By the side he holsters his two weapons? Did he have any training at all? It is reasonable that he should know these things and that he was trained to kill or to incapacitate. Therefore it is not reasonable that he should use that asinine defense and expect it to produce a "reasonable doubt" in the jurors.

Guilty of murder in the second degree IMO.

I agree with you, but I can't convince myself to believe that the cop thought to himself "What the hell, I'll just execute this guy right here."

 

[russ_watters]

That is part of the sickening aspect of the defense. Anyone can use that defense and get away with it -based on evidence- of course. Too bad that the words 'reasonable doubt' are used in that definition.

The "reasonable doubt" standard is used to ensure that innocent people don't go to jail. It may turn out that it allows the guilty to go free (which by the way, it didn't in this case), but that's the penalty you pay for needing to be sure.

I think the officer is guilty beyond a reasonable doubt. Is it reasonable for me to doubt that he doesn't knows the difference between his lethal and non-lethal weapons? Is it reasonable to expect that this officer should know the difference between a Taser and a 9mm by feel? By sight? By the side he holsters his two weapons? Did he have any training at all? It is reasonable that he should know these things and that he was trained to kill or to incapacitate. Therefore it is not reasonable that he should use that asinine defense and expect it to produce a "reasonable doubt" in the jurors.

You're not following the standard properly because you are not considering all of the issues you are required to consider. You forgot several issues:

1. Adrenaline: is it reasonable to think that in a high stress situation, he forgot his training and lost awareness? It happens all the time. I think it is quite possible.
2. Motive: In order for this to have been 2nd degree murder - for him to have done it on purpose - there had to be a motive. Do you know of a beyond-a-reasonable-doubt reason why he did it on purpose?
3. His statement in the heat of the moment that he said he was going to use his taser: Do you have a beyond-a-reasonable-doubt reason to believe he was thinking that he wanted to kill the person and had the clarity of forethought to throw in a little misdirection?
4. His record: He has a spotless record. This goes to credibility regarding all 3 of the above: is it reasonable to believe someone with some unstated desire to murder would not have revealed associated character flaws during his career? And is there a beyond-a-reasonable-doubt reason why you would throw out his record and credibility to believe he was lying?

The bottom line is that there is no direct evidence at all that points to to a purposeful killing. All you have is a doubt that it could be accidental. A doubt that it could be accidental is not a reasonable certainty that it could have been on purpose. Your incredulity of how big of a mistake it would have to be does not equate to beyond a reasonable doubt that he did it on purpose.

Heck, I can provide a simple analagous error that happens relatively frequently: unintentionally hitting the accelerator of a car instead of the brake. The pedals feel completely different from each other, so how could it be possible to mistake them for each other? Yet people do - and occasionally people die. No one would ever get convicted of 2nd degree murder for that without some evidence that they drove through a crowd on purpose.

 

[TheStatutoryApe]

Yes, double jeopardy would apply - as would jurisdiction (the feds have none).

And I agree with leroy - I don't see that there is any reason to believe this was an intentional act. Being hard to believe that it was unintentional is not evidence that it was intentional and thus it is impossible to convict him of intentional killing.

Double jeopardy only applies if the separate charges are the same or substantially similar (i.e. murder and murder or murder and manslaughter). If they prosecute for a crime that is wholly separate from manslaughter then it is not double jeopardy. Since it is apparently the civil rights division that is investigating I assume that they will be looking into the possibility of prosecuting on the basis of an alleged infringement of the victim's civil rights which would not qualify as double jeopardy.

As far as jurisdiction goes the particular department is responsible for prosecuting violations of the Civil Rights Acts. Also the DoJ runs a program called C.O.P.S. which contributes funds to most of the law enforcement agencies in the country (local police included). Depending on the contract this may require local law enforcement (at least those that accept the funds) to submit to investigation and prosecution from the DoJ.

All that aside, I agree that manslaughter seems most appropriate. I do not believe that the officer intended to shoot the man. I am not sure I could find any source on it but I remember reading that witnesses said he seemed rather shocked by what had happened.

 

[chemisttree]

I agree with you, but I can't convince myself to believe that the cop thought to himself "What the hell, I'll just execute this guy right here."

Thats why it should be second degree rather than first degree IMO.

 

[russ_watters]

Thats why it should be second degree rather than first degree IMO.

No, what separates second and first is premeditation. Unless the cop knew he was going to be in that situation that day, he couldn't have possibly planned it. So first degree murder was never really on the table here.

Second degree murder is still on purpose, so if you don't believe (beyond a reasonable doubt) the cop decided he wanted to execute the guy, then you don't actually believe it is second degree murder - you're just misusing the term. http://legal-dictionary.thefreedictionary.com/second+degree+murder

 

[chemisttree]

The "reasonable doubt" standard is used to ensure that innocent people don't go to jail. It may turn out that it allows the guilty to go free (which by the way, it didn't in this case), but that's the penalty you pay for needing to be sure. You're not following the standard properly because you are not considering all of the issues you are required to consider. You forgot several issues:

1. Adrenaline: is it reasonable to think that in a high stress situation, he forgot his training and lost awareness? It happens all the time. I think it is quite possible.

You are invoking an "adrenaline" defense? Should it be that easy to get away with second degree murder. "I was excited and therefore not guilty!"

2. Motive: In order for this to have been 2nd degree murder - for him to have done it on purpose - there had to be a motive.

Nope. Just dangerous conduct and being careless about human life is all that is required. Motive is not even in the discussion. Where is motive in this definition?

"a killing caused by dangerous conduct and the offender's obvious lack of concern for human life."

3. His statement in the heat of the moment that he said he was going to use his taser: Do you have a beyond-a-reasonable-doubt reason to believe he was thinking that he wanted to kill the person and had the clarity of forethought to throw in a little misdirection?

Thinking that he wanted to kill the person is premeditation which is not part of the discussion in second degree murder. What the officer was thinking is unimportant. No one can know that but the officer anyway. That's just not a defense. It is a poor excuse.

4. His record: He has a spotless record. This goes to credibility regarding all 3 of the above: is it reasonable to believe someone with some unstated desire to murder would not have revealed associated character flaws during his career? And is there a beyond-a-reasonable-doubt reason why you would throw out his record and credibility to believe he was lying?

His record? He is on record shooting a suspect in the back. Would you trust someone that would either tase you shoot you while you were lying face down on the floor? People lie all the time but it isn't important anyway. He caused a death due to his lack of concern for human life. Second degree murder.


http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/30/BABI15KCD5.DTL&type=adfree"

...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."

Judge Jacobson thought he was lying since his story appeared to change with time.
What's worse than a cop that lies about his actions (thus maintaining a spotless record)? A cop that would shoot you in the back and lie about his actions is much worse.

 

[Ivan Seeking]

By Russ's argument, any cop could get excited and then shoot someone, and use the same defense. If the police are so poorly trained and excitable that they can't tell a taser from a 38, then they are too dangerous to be carrying lethal weapons.

More likely he was consumed with personal hatred, and reacted accordingly. I can't watch the video without deeming it an execution.

 

[chemisttree]

I think it is more likely that he thought the guy was going for a gun. That's what he told one of his officer buddies after the incident. If I thought he was going for a gun I wouldn't choose my taser. Do you even have to stand and draw to use the taser? Isn't it better deployed by pressing the prongs against the target?

He is on record saying that, "I'm going to tase him", he stands but then chooses his 9mm and fires. Afterward he explains to his officer buddy that he thought the suspect was reaching for a gun.

 

[Ivan Seeking]

I think it is more likely that he thought the guy was going for a gun. That's what he told one of his officer buddies after the incident.

If he thought the guy was pulling a gun, he wouldn't be going for his taser.

 

[Chi Meson]

I'm sure some of you remember the cop who says he intended to taser someone at a subway station in Oakland, only to pull out his gun and kill the guy

http://www.cbsnews.com/stories/2010/07/09/national/main6661809.shtml?tag=stack

He was convicted for involuntary manslaughter, and now apparently the DoJ is investigating the case. Isn't there some sort of double jeopardy thing here that would prevent him from being prosecuted?

As was the case with OJ, you can be prosecuted a second time for the same act as long as you are being prosecuted for a different crime. The feds are investigating the case, and so far that is it. If they find a reason to pursue prosecution on "civil rights" grounds, then it would be a "different crime."

In order to quell some of the unrest in LA, the feds have to at least investigate. If they find no shred of evidence that the cop has a history of hatred of blacks, then it probably won't go further. At the very least, it would put some time into the picture and let tempers drop a little.

I can simultaneously understand that a person could grab the wrong device while rushing on adrenaline , AND be totally dumbfounded that he didn't notice the weight difference and grip difference between the two.

I also think that even the worst racist cop is not ever looking forward to executing anyone. With my limited knowledge of the case, it seems as if he got the right conviction.

 

[chemisttree]

If he thought the guy was pulling a gun, he wouldn't be going for his taser.

Beat me to it.

 

[j93]

By Russ's argument, any cop could get excited and then shoot someone, and use the same defense. If the police are so poorly trained and excitable that they can't tell a taser from a 38, then they are too dangerous to be carrying lethal weapons.

More likely he was consumed with personal hatred, and reacted accordingly. I can't watch the video without deeming it an execution.

The truth is you are right any officer can kill any person randomly for any reason and at most get involuntary manslaughter unless he leaves some type of premeditation paper trail. This is the truth is period unless maybe they could prove a history of being dirty in some way. So if your interested in what it feels like to kill someone join the force and just do it once randomly and at worst you would get involuntary manslaughter ,and if you are lucky there might not be a camera around and it might be your word against someone else and you would likely not be prosecuted.

There is no way the jury would of convicted him of second degree murder without the officer loudly and clearly screaming something along the lines "another dead (insert racial epithet)".

In summary the conviction is as good as it gets for the situation, like it or not.

 

[Vanadium 50]

More likely he was consumed with personal hatred

Do you think he should be charged with a hate crime as well?

 

[Office_Shredder]

As was the case with OJ, you can be prosecuted a second time for the same act as long as you are being prosecuted for a different crime.

OJ was only prosecuted once for murder. He was also hit with a civil lawsuit, which is not a criminal prosecution

 

[leroyjenkens]

If he thought the guy was pulling a gun, he wouldn't be going for his taser.

If the guy was laying on the ground right below him and he thought the guy was reaching for a gun, he wouldn't draw anything. He would reach down and stop him from doing it.

 

[madness]

Definition of 2nd degree murder from FindLaw... "a killing caused by dangerous conduct and the offender's obvious lack of concern for human life."
.

If it was unintentional, then the above sounds about right - he clearly had a lack of concern for human life if he allowed himself to make such a mistake. If it was intentional, then it would be full on murder.

 

[leroyjenkens]

If it was unintentional, then the above sounds about right - he clearly had a lack of concern for human life if he allowed himself to make such a mistake. If it was intentional, then it would be full on murder.

How does that differ from any case of manslaughter?

 

[Office_Shredder]

Definition of 2nd degree murder from FindLaw... "a killing caused by dangerous conduct and the offender's obvious lack of concern for human life."

Ok, let's look again

http://criminal.findlaw.com/crimes/a-z/murder_second_degree.html

Second-degree murder is ordinarily defined as 1) an intentional killing that is not premeditated or planned, nor committed in a reasonable "heat of passion" or 2) a killing caused by dangerous conduct and the offender's obvious lack of concern for human life. Second-degree murder may best be viewed as the middle ground between first-degree murder and voluntary manslaughter.

Rather than cherry picking parts of definitions to re-define second degree murder as manslaughter, let's have an informed discussion here. The primary definition of second degree killing requires an intent to kill somebody. The second definition is not supposed to allow second degree murder to usurp manslaughter, it's supposed to be when someone does an act knowing someone will die and somebody dies. For example, if you shoot a gun into a crowd, and hit someone, you weren't planning on killing them but it's still murder

 

[KalamMekhar]

By Russ's argument, any cop could get excited and then shoot someone, and use the same defense. If the police are so poorly trained and excitable that they can't tell a taser from a 38, then they are too dangerous to be carrying lethal weapons.

More likely he was consumed with personal hatred, and reacted accordingly. I can't watch the video without deeming it an execution.

Obviously this honkie hates the black man, and only wants to see them suffer under the weight of the world.

Would you be saying the same thing if a black man shot a white man? Most likely not.

 

[chemisttree]

Ok, let's look again

http://criminal.findlaw.com/crimes/a-z/murder_second_degree.html



Rather than cherry picking parts of definitions to re-define second degree murder as manslaughter, let's have an informed discussion here. The primary definition of second degree killing requires an intent to kill somebody. The second definition is not supposed to allow second degree murder to usurp manslaughter, it's supposed to be when someone does an act knowing someone will die and somebody dies. For example, if you shoot a gun into a crowd, and hit someone, you weren't planning on killing them but it's still murder

Do you know what the word "or" means? You claim that there is a primary and secondary definition. There isn't. There are two requirements in that definition and either (see definition of "or") is valid.

Here is the Californian definition of 2nd Degree Murder (http://legal-dictionary.thefreedictionary.com/Second-degree+murder) and especially (http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=187-199 )

...Many states use the California definition of implied malice to describe an unintentional killing that is charged as murder because the defendant intended to do serious bodily injury, or acted with extreme recklessness. For example, if an aggressor punches a victim in the nose, intending only to injure the victim's face, the aggressor may be charged with murder if the victim dies from the blow. The infliction of serious bodily injury becomes the equivalent of an intent to kill when the victim dies. Although the aggressor in such a case did not have the express desire to kill the victim, he or she would not be charged with assault, but with murder. To understand why, it is helpful to consider the alternative: When a person dies at the hands of an aggressor, it does not sit well with the public conscience to preclude a murder charge simply because the aggressor intended only to do serious bodily injury.

Who's picking now?

 

[chemisttree]

If it was unintentional, then the above sounds about right - he clearly had a lack of concern for human life if he allowed himself to make such a mistake. If it was intentional, then it would be full on murder.

Read up on the requirements for 2nd degree murder and get back to us...

 

[Office_Shredder]

Do you know what the word "or" means? You claim that there is a primary and secondary definition. There isn't. There are two requirements in that definition and either (see definition of "or") is valid.

Here is the Californian definition of 2nd Degree Murder (http://legal-dictionary.thefreedictionary.com/Second-degree+murder)



Who's picking now?

If you intend to commit an action that has a serious chance of killing someone, that's second degree murder. Tasering someone is not such an action, so pulling out a gun instead of a taser by accident would not be second degree murder.

 

[russ_watters]

Chemisttree, you're still misunderstanding the differences between the degrees. Read the link I provided! (and others describing the other degrees)

You are invoking an "adrenaline" defense? Should it be that easy to get away with second degree murder. "I was excited and therefore not guilty!"

Huh? No. That's not even close to what I said, much less logical! Try it again with a little more thought and we'll see if there is anything for me to respond to!

Nope. Just dangerous conduct and being careless about human life is all that is required.

No, that's 3rd degree murder - and that's what he was convicted of. http://en.wikipedia.org/wiki/Manslaughter

2nd degree murder must be an intentional assault with a deadly weapon.

Motive is not even in the discussion. Where is motive in this definition?

Motive - or more generally, what was going on in his head - is everything here:

The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind.

http://en.wikipedia.org/wiki/Manslaughter

The difference between second and third degree murder is simply intent. 3rd degree murder is recklessness that results in death. 2nd degree murder requires the intent to injure:

[from the same wiki, the next sentence]This is particularly true within the law of homicide, where murder requires either the intent to kill - a state of mind called malice, or malice aforethought - or the knowledge that one's actions are likely to result in death; manslaughter, on the other hand, requires a lack of any prior intention to kill or create a deadly situation.

"a killing caused by dangerous conduct and the offender's obvious lack of concern for human life."

Yes. Perhaps the real problem here is that you are ignoring the definition and just inserting your judgement? You believe he intended to shoot the guy [with a gun], so you're applying that definition. And if he did intend to shoot the guy, then that definition would fit. But it couldn't be proved to beyond a reasonable doubt that he did, so it doesn't. That's not what he was convicted of because the prosecution could not prove beyond a reasonable doubt that he intended to shoot the guy [with a gun].

Thinking that he wanted to kill the person is premeditation which is not part of the discussion in second degree murder.

No, premeditation is what happens in the hours, days or months before the crime. It is a conscious decision, with planning, to commit murder. What happens during the cime is not premeditation. Here's the definition of that word!:

Premeditated murder is the crime of wrongfully causing the death of another human being (also known as murder) after rationally considering the timing or method of doing so, in order to either increase the likelihood of success, or to evade detection or apprehension.[1]

http://en.wikipedia.org/wiki/Premeditated_murder

What the officer was thinking is unimportant. No one can know that but the officer anyway. That's just not a defense. It is a poor excuse.

Poor excuse or not, it is a critical criteria as demonstrated above, and the doubt created by that poor excuse is what requires a ruling of not guilty for 2nd degree murder. This is clear cut and it seems that your argument is based on your personal feeling that the sentence wasn't harsh enough and not a faithful reading of the definitions.

His record? He is on record shooting a suspect in the back.

You know darn well that's not what "his record" is and that his record matters. 20 years of spotless history matters just like 20 years of petty crimes (for example) would matter in determining his credibility.

He caused a death due to his lack of concern for human life. Second degree murder.

No, that's third degree murder.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/01/30/BABI15KCD5.DTL&type=adfree"

That's nice. Did the judge apply the "reasonable doubt" criteria, did he sit through an entire trial to see all of the evidence and was he on the jury? If not, it's irrelevant.

Several witnessess stated that he acted surprised and said "Oh my God" several times after he fired the shot. Are you 95%+ certain that he had the forethoughth to do that and that he was indeed only acting?

 

[russ_watters]

By Russ's argument, any cop could get excited and then shoot someone, and use the same defense.

Yes, if the same elements that we've been talking about exist, the same defense could be used. That's trivially obvious.

If the police are so poorly trained and excitable that they can't tell a taser from a 38, then they are too dangerous to be carrying lethal weapons.

Yes, clearly this officer is a danger to society and he should go to jail and then never be allowed to be a cop again...


...oh wait, that's what happened!

More likely he was consumed with personal hatred, and reacted accordingly. I can't watch the video without deeming it an execution.

"More likely"? So you're saying you agree that the "beyond a reasonable doubt" criteria for 2nd degree murder was not met and you agree with the verdict, then, right?

While we're at it, no one arguing for 2nd degree murder has yet directly addressed the "reasonable doubt" issue. Could you guys explain how you can be 95% certain that the cop intended to kill even though there is no direct evidence of that intent?

 

[russ_watters]

Do you think he should be charged with a hate crime as well?

Well gee, with all of the clear/direct evidence of hate, I'm surprised he didn't!

 

[russ_watters]

Who's picking now?

Still you. The other side of the "or" is still an intentional assault with a potentially deadly weapon.

 

[NeoDevin]

Still you. The other side of the "or" is still an intentional assault with a potentially deadly weapon.

A taser is a "potentially deadly weapon", just less deadly than a gun. I think chemisttree is suggesting that: while assaulting with the taser, the officer unintentionally caused the death of the victim, thereby satisfying the definition of 2nd degree murder.

 

[chemisttree]

Chemisttree, you're still misunderstanding the differences between the degrees. Read the link I provided! (and others describing the other degrees)

Well I did and I still don't see your point. BTW, that definition supports my statements. To wit...

Second degree murder n. a non-premeditated killing, resulting from an assault in which death of the victim was a distinct possibility.

Wheras the California definition of 2nd degree murder is ...

...187. (a) Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.

...188. Such malice may be express or implied. It is express when
there is manifested a deliberate intention unlawfully to take away
the life of a fellow creature. It is implied, when no considerable
provocation appears, or when the circumstances attending the killing
show an abandoned and malignant heart.
When it is shown that the killing resulted from the intentional
doing of an act with express or implied malice as defined above, no
other mental state need be shown to establish the mental state of
malice aforethought.

This establishes that a murder charge is appropriate. What remains is the determination of degrees.

189. All murder which is perpetrated by means of a destructive
device or explosive, a weapon of mass destruction, knowing use of
ammunition designed primarily to penetrate metal or armor, poison,
lying in wait, torture, or by any other kind of willful, deliberate,
and premeditated killing, or which is committed in the perpetration
of, or attempt to perpetrate, arson, rape, carjacking, robbery,
burglary, mayhem, kidnapping, train wrecking, or any act punishable
under Section 206, 286, 288, 288a, or 289, or any murder which is
perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the
intent to inflict death, is murder of the first degree. All other
kinds of murders are of the second degree.

Therefore murder in the second degree is appropriate.

The difference between second and third degree murder is simply intent. 3rd degree murder is recklessness that results in death.

No, that's second degree murder. And in California it is actually malice aforethought. The intent you speak of is intent to harm only, not to kill. He intended to harm the victim which is implied malice aforethought. He claimed to his partner that the guy was reaching for a gun. He pulled his 9mm and shot the guy in the back.

Open and shut case IMO.

2nd degree murder requires the intent to injure: Yes. Perhaps the real problem here is that you are ignoring the definition and just inserting your judgement? You believe he intended to shoot the guy [with a gun], so you're applying that definition. And if he did intend to shoot the guy, then that definition would fit.

Yes. He claimed that the guy was reaching for a gun. What are officers trained to do in that circumstance? Reach for a taser? His story changed and he was believed to be lying and changing his story to avoid consequences.

He is a murderer.

Poor excuse or not, it is a critical criteria as demonstrated above, and the doubt created by that poor excuse is what requires a ruling of not guilty for 2nd degree murder. This is clear cut and it seems that your argument is based on your personal feeling that the sentence wasn't harsh enough and not a faithful reading of the definitions.

You haven't read the definition of 2nd degree murder for the State of California yet. Try it.

You know darn well that's not what "his record" is and that his record matters. 20 years of spotless history matters just like 20 years of petty crimes (for example) would matter in determining his credibility. No, that's third degree murder. That's nice. Did the judge apply the "reasonable doubt" criteria, did he sit through an entire trial to see all of the evidence and was he on the jury? If not, it's irrelevant.

His actions and his changing testimony determine his credibility. He has 2 years with BART which isn't much of a record. Did the judge sit through an entire trial to see all of the evidence? Was he the jury? Well two judges sat through multiple days of testimony and the judge at the preliminary hearing, Judge C. Don Clay, agrees with me. So does the judge at the arraignment. So does Mehserle's lawyer.

After the seven days of testimony, Judge C. Don Clay concluded that Mehserle had not mistakenly used his service pistol instead of his stun gun. The judge based this on Mehserle's statements to other officers that he thought Grant had a gun. He also noted that Mehserle had held his weapon with both hands when he was trained to use just his left if he was firing a Taser.

Two Alameda County judges publicly said they also believe Mehserle meant to shoot Grant. One judge even said, "There is no doubt in my mind Mr. Mehserle meant to shoot Oscar Grant with a gun, not a Taser."

http://www.mercurynews.com/news/ci_15002927?nclick_check=1

Attorney Michael Rains, in voluminous pretrial filings, argues that his client did not commit first-degree murder and is asking a Los Angeles judge to instruct the jury to limit its deliberations to either second-degree murder or acquittal.

Johannes Mehserle -2nd degree murderer whose slick lawyer got him a reduced sentence in front of a jury with no blacks.

 

[Office_Shredder]

This establishes that a murder charge is appropriate. What remains is the determination of degrees.

Tasering someone is evidence of an abandoned or malignant heart?

Also found this

http://articles.latimes.com/2010/jul/08/local/la-me-bart-verdict-20100709

In at least six other instances, officers have said they made the same mistake of firing a handgun when they intended to use a Taser.

So I went a-googling. Funny enough I got some hits
http://www.kirotv.com/news/9413774/detail.html

Officers responding to a welfare check of a man in a tree in Kitsap County accidentally shot the man in an attempt to use a Taser on him.

I assume this officer just hated homeless people

http://findarticles.com/p/articles/mi_qn4183/is_20070924/ai_n20518015/

Frederick P. Henry was fleeing arrest and Somerset County Deputy Sheriff Robert Purnell needed to stop him. Purnell reached back to unholster his Taser, then drew and fired at Henry.

But instead of drawing his Taser, designed to merely immobilize suspects, Purnell had mistakenly grabbed his Glock .40-caliber handgun.

So this is not the first time that an officer has mistakenly fired a taser, unless this is not the first time that an officer has used this excuse. But I don't see anywhere that these guys got charged for attempted murder because of it.

Also

http://www.bradenton.com/2010/07/01/2403481/bpd-officer-shoots-armed-man-with.html

When Brainard pulled the Taser, Cardarelle turned around and charged him with his hand in his pocket. Brainard fired his Taser, hitting Cardarelle and causing him to fall to the ground

Officer thinks suspect might be reaching for a gun, hits him with a taser. So that's not unprecedented either

 

[chemisttree]

If you already have the taser out you use it. Mehserle reached for his gun, adopted a two hand stance and fired. They are taught to fire tasers with one hand. He had been trained only 3 weeks prior to this incident.

I'd look shocked too if I was just seen executing someone. I might even exclaim, "Oh my God!" when I realized my mistake (he had no gun).

Six other examples of an officer reaching for the wrong gun doesn't change a thing. Did those other six testify that they thought their perps were reaching for their guns? Not enough information to draw any conclusions with that tidbit of info. Were it actually relevant to this case I would think a responsible journalist would elaborate more on the subject.

edit. I actually found some more information for officers that mistakenly drew the wrong gun.

Here are some items.

On March 10, 2001, Sacramento Police officer Officer Thomas Shrum shot Steven Yount in the left buttock while four officers were trying to subdue and transport him to jail following his arrest for driving under the influence of alcohol (DUI). As Yount, who was handcuffed and in leg restraints, struggled, squirmed and kicked the inside of the police car, Officer Shrum, intending to draw and fire his TASER© gun, instead pulled out and discharged his nine-millimeter pistol.

Back then the X26 Taser was black just like the Glock. Mehserle's was bright yellow... a design change intended to keep these mistakes from happening.

On September 2, 2002 Officer Greg Siem was having trouble subduing a Sudanese refugee, Christopher Atak, who was under arrest for being drunk and disorderly. When Siem pulled out what he thought was his TASER, he in fact pulled out his firearm and shot once into the man’s back puncturing his intestine, colon and gall bladder.

On October 27, 2002, a City of Madera police officer who was carrying her black M26 TASER on the strong side, shot and accidentally killed Everardo Torres, 24, who was already handcuffed. Officer Marcy Noriega, said, “I put the f*****g TASER on he wrong side,” after she realized she shot the suspect with her firearm.

On October 20, 2003, Frederick P. Henry was fleeing arrest from Somerset County Deputy Sheriff Robert Purnell when he reached back to unholster his black TASER M26, but then drew and fired his gun at Henry. Purnell claims that he had mistakenly grabbed his Glock .40-caliber handgun when he shot Henry in the elbow. On the scene, Deputy Purnell told Henry and other witnesses that he used the wrong weapon which he had on his strong side.

On June 22, 2006, in Navy Yard City, Bremerton, Kitsap County Sheriff Deputy Tiffany Dobbins shot her firearm when she intended to use her TASER that she wore on her strong side. William A. Jones, 32, had been acting delusional in a tree for five hours prior to Deputy Dobbins’ arrival. Jones had been unsuccessfully by another deputy on the scene, but Jones was able to remove the probes and then he climbed higher in the tree. After the failed attempt Deputy Dobbins was verbally requested to deploy her TASER on Jones, and she responded by accidentally shooting Jones once in the leg. Her immediate reaction was “Oh my God, oh my God, what did I do?”

Daniel Hammond, 25, was shot in the abdomen by Constable Mike Miller on September 10, 2005. Hammond had reportedly caused a disturbance outside a restaurant and resisted when police attempted to arrest him. Miller reached for his X26 TASER to subdue Hammond but came up with his Glock and shot Hammond. Miller had been wearing the TASER on his weak side, but after he first pulled out the TASER he returned it to a cargo pocket on his strong side when he was attempting to handcuff Hammond. When Hammond continued to resist, Miller thought he was drawing TASER when he shot Hammond.

All of the previous cases of TASER confusion stemmed from the officer having the TASER on their strong side at the time of the shooting which was a common theme. Mehserle had worn his TASER holstered on his weak side, the opposite of his firearm when he shot Grant. Additionally the TASER in the previous six incidents were all black in color and because of that, TASER began to manufacture the TASER is different colors to prevent confusion. Mehserle’s TASER was yellow and Meyer claimed he was unaware the reasons why TASER began to manufacture yellow TASERS.

In the five incidents that occurred in the United States, each officer immediately expressed guilt as a result of their accident, in some cases crying on the scene for the victim. Mehserle expressed no such remorse about a mistake to his partner Jon Coffined, Anthony Pirone, or to the Commanders and Lieutenants that arrived on the scene. He didn’t hesitate to state that Grant was reaching for a weapon when he shot but never said anything about an accidental shooting. Grant was not found to be armed.

http://www.streetgangs.com/features/070710_meyer_witness
In none of these other instances did the officer change his or her story to avoid consequences and I'll bet that the two judges at their arraignment and preliminary hearings didn't indicate that they thought the officer was lying and intended to pull the gun.

I still think it is 2nd degree murder.

 

[mgb_phys]

In none of these other instances did the officer change his or her story to avoid consequences

So these officer had either better lawyers or had heard of the "I thought it was a Taser" defense before.

 

[Perspicacity]

If you already have the taser out you use it. Mehserle reached for his gun, adopted a two hand stance and fired. They are taught to fire tasers with one hand. He had been trained only 3 weeks prior to this incident.

I'd look shocked too if I was just seen executing someone. I might even exclaim, "Oh my God!" when I realized my mistake (he had no gun).

Six other examples of an officer reaching for the wrong gun doesn't change a thing. Did those other six testify that they thought their perps were reaching for their guns? Not enough information to draw any conclusions with that tidbit of info. Were it actually relevant to this case I would think a responsible journalist would elaborate more on the subject.

edit. I actually found some more information for officers that mistakenly drew the wrong gun.

Here are some items.



Back then the X26 Taser was black just like the Glock. Mehserle's was bright yellow... a design change intended to keep these mistakes from happening.












http://www.streetgangs.com/features/070710_meyer_witness
In none of these other instances did the officer change his or her story to avoid consequences and I'll bet that the two judges at their arraignment and preliminary hearings didn't indicate that they thought the officer was lying and intended to pull the gun.

I still think it is 2nd degree murder.

When I was in the service, I once accidentally fired a grenade out of my M203 instead of firing a round from my M4. The action actually required me to load a round into the M203 in order to fire it. the oddest thing was, I actually aimed my weapon as if I was firing a rifle round, so the grenade fell far short of my intended target. Luckily, no one was hurt in the incident.

To this day I wonder why I did it. It just seemed my brain was malfunctioning. I had a man in my sights and fully intended to put a round in him, but my brain told my hand to reach past the trigger of my carbine and instead pull the trigger under the launcher. I was a Sergeant at the time, was experienced with both weapons, and was considered a pretty good soldier. I've always likened it to the sort of thing like when you pick up someone else's drink or accidentally pour coffee in your cereal—your brain failed at a task that you trust yourself to do automatically.

I don't believe that this officer intended to kill this man.

 

[leroyjenkens]

I'd look shocked too if I was just seen executing someone. I might even exclaim, "Oh my God!" when I realized my mistake (he had no gun).

He looked shocked immediately after he shot the gun, so the shock was from him firing the gun. Unless he simultaneously shot the gun and realized the other guy had no gun.

Even still, if a cop sees a guy going for a gun and he's right next to the guy, they don't pull out a gun and shoot him, they use their hands to stop him from pulling it out. Especially if the guy is laying on the ground in handcuffs right below the cop.

Of course, it doesn't seem like proper procedure to taser a guy who is in handcuffs right under you, either, but I've seen it done several times before.

 

[TheStatutoryApe]

Chemisttree: I believe that Russ's point is that you think it is 2nd degree murder because you believe he actually intended to shoot the man and that according to the findings of the jury it was manslaughter, because they decided that he had not intended to shoot the man.

As for your other comments, how about we take a look at them.

How many hands does a person use to wield a taser? A quick image search shows persons holding tasers with one or two hands as well as a drawn diagram showing an officer holding a taser with two hands. I watched three videos on youtube, one in a training situation where the officer used two hands, one in the field where the officer used two hands, and one in the field where the officer used one hand. Do you think that perhaps he was more used to, and perhaps more comfortable with, holding a gun like device with two hands?

You seem to insinuate that if an officer sees a person possibly about to pull a gun they are trained to shoot so obviously if he was following police protocol he would not have used a taser. Well let's see... If you and another officer were on top of a suspect attempting to restrain him and having no luck when you observed that the suspect seemed to be trying to get his hand to his waistband where he may have a gun would you then stand up, ask your partner to move, and execute the guy on the ground? Do you seriously think that's proper police training?

You cited several examples of other incidents similar to the scenario you reject and note differences but not similarities. The biggest thing that jumps out at me is that in all of these incidents the officer shot only once. Thinking that they were using a taser they pulled the trigger only once because that is all that is necessary. When an officer is trained to shoot someone with a firearm how many times are they supposed to shoot? Considering that officers are only supposed to shoot if there is an imminent threat to life, and when they do to shoot to kill, the number must be two at a minimum. The officer who you claim intended to shoot the victim only shot once though. Usually when officers start shooting in the heat of the moment they shoot several times, remember the officer in the UK who unloaded a whole clip point blank into a suspects head.

You say that he showed no remorse? How do you know that? Because he did not break down sobbing? Ever heard of shock?

I am not aware of anything that was said about him changing his story. One of the judges expressed the opinion that his story was inconsistent with his having told another officer that he thought the man had a gun. I do not believe anything changed, only that the particular judge did not think that the use of a taser was the appropriate response to thinking the man had a gun.

In the end what exactly do you think happened? Do you seriously think that this cop just got tired of dealing with the suspect (come victim) and decided to get it over with by executing him in front of dozens of onlookers? I don't know where you live but around here cops don't usually decide its easier to just off someone for no particular reason other than that its less bother than trying to get cuffs on them.
Since you were so kind to get all of those references to taser/gun mix ups maybe you can support your own position by finding stories where cops got frustrated with trying to restrain someone and decided they would rather just execute them.

 

[TheStatutoryApe]

He looked shocked immediately after he shot the gun, so the shock was from him firing the gun. Unless he simultaneously shot the gun and realized the other guy had no gun.

Even still, if a cop sees a guy going for a gun and he's right next to the guy, they don't pull out a gun and shoot him, they use their hands to stop him from pulling it out. Especially if the guy is laying on the ground in handcuffs right below the cop.

Of course, it doesn't seem like proper procedure to taser a guy who is in handcuffs right under you, either, but I've seen it done several times before.

The suspect was not in handcuffs. The problem that eventually lead to the shooting was apparently that he was resisting their attempts to put handcuffs on him.

 

[leroyjenkens]

The suspect was not in handcuffs. The problem that eventually lead to the shooting was apparently that he was resisting their attempts to put handcuffs on him.

Oh, my mistake.
But my comment still applies, just minus the handcuffs part.

 

[chemisttree]

I am not aware of anything that was said about him changing his story. One of the judges expressed the opinion that his story was inconsistent with his having told another officer that he thought the man had a gun. I do not believe anything changed, only that the particular judge did not think that the use of a taser was the appropriate response to thinking the man had a gun.

In the end what exactly do you think happened? Do you seriously think that this cop just got tired of dealing with the suspect (come victim) and decided to get it over with by executing him in front of dozens of onlookers? I don't know where you live but around here cops don't usually decide its easier to just off someone for no particular reason other than that its less bother than trying to get cuffs on them.

I think he stood up intending to use his taser but then he thought he saw him reaching for a gun in his waistband. He changed his mind, quickly grabbed his 9mm and shot. He immediately realized his mistake etc... This scenario is consistent with the facts. He told his partner and all of the supervisory officers that showed up at the scene that he thought the guy had a gun. He never once said that he meant to pull his taser. This isn't even a disputed point. All of the reports say the same thing. The "I meant to use my taser" defense didn't appear until the slick lawyer arrived on the scene.

Since you were so kind to get all of those references to taser/gun mix ups maybe you can support your own position by finding stories where cops got frustrated with trying to restrain someone and decided they would rather just execute them.

http://www.liveleak.com/view?i=7d7_1177257949"

Of course there's http://abcnews.go.com/US/phoenix-family-lawsuit-cops-shot-homeowner-intruder/story?id=8756441"

Don't press your case too much with http://www.boredeasy.com/videos/Angry_Cop_Shoots_Soccer_Player" officer.

Here's one where a http://www.myeyewitnessnews.com/new...rs-in-Court-will/b3tknfNSx0aqnYxn6iNlQw.cspx" by an officer for pushing! The Chief was arguing a traffic ticket.

 

[TheStatutoryApe]

I think he stood up intending to use his taser but then he thought he saw him reaching for a gun in his waistband. He changed his mind, quickly grabbed his 9mm and shot. He immediately realized his mistake etc... This scenario is consistent with the facts. He told his partner and all of the supervisory officers that showed up at the scene that he thought the guy had a gun. He never once said that he meant to pull his taser. This isn't even a disputed point. All of the reports say the same thing. The "I meant to use my taser" defense didn't appear until the slick lawyer arrived on the scene.

The reports say that Mehserle stood up to taze/shoot the suspect because he already believed that the man may have a weapon that he was possibly going for. The man was on his face with his arms under his body. There is no way that if Mehserle stood up he would have seen the man going for a weapon or would have been able at all to see that the man did not have a weapon immediately after shooting him. Your idea does not make much sense. As noted by Leroy all he had to do if he saw, or believed he saw, a weapon was announce it to the half dozen or so other officers immediately on hand, including the one that was already holding the suspect, and it would have been dealt with without any shots being fired. There is absolutely no reason for him to have shot the suspect even if he thought he saw a weapon.

According to the police investigation he had said he intended to taze the suspect before he stood up and then told his partner to get out of the way so he could taze the suspect. The judge in the preliminary hearing rejected allowing his partners report of having heard him say this into evidence. Perhaps he did not mention the taser mix up immediately because he had said that was what he had intended to do in the first place. Perhaps he was in shock and just saying "I thought he had a gun" and not thinking clearly enough to describe what had happened. Perhaps, since you think he is a liar, he refrained from saying that he had accidentally pulled the wrong weapon because he thought it would sound even worse, making himself not only look incompetent but completely and utterly incompetent. BART locked this down tight and did not want anyone talking to the press, so even if there had been discussion of a taser mix up before the "slick lawyer" we would not have heard about it. And if he knew what he is supposed to do when detained for questioning he would not have discussed anything with his interviewers without a lawyer present.

http://www.liveleak.com/view?i=7d7_1177257949"

Of course there's http://abcnews.go.com/US/phoenix-family-lawsuit-cops-shot-homeowner-intruder/story?id=8756441"

Don't press your case too much with http://www.boredeasy.com/videos/Angry_Cop_Shoots_Soccer_Player" officer.

Here's one where a http://www.myeyewitnessnews.com/new...rs-in-Court-will/b3tknfNSx0aqnYxn6iNlQw.cspx" by an officer for pushing! The Chief was arguing a traffic ticket.

Right, you'll note that none of these cases bear much resemblance to the one we are discussing other than that they are regarding cops who shot people when they ought not have. Please show me one where a cop flat out executed someone laying on their face on the ground while being restrained by another officer where there was absolutely no reason for them to have shot the person.

 

[CRGreathouse]

Right, you'll note that none of these cases bear much resemblance to the one we are discussing other than that they are regarding cops who shot people when they ought not have. Please show me one where a cop flat out executed someone laying on their face on the ground while being restrained by another officer where there was absolutely no reason for them to have shot the person.

Moving the goalpost much?

 

[russ_watters]

A taser is a "potentially deadly weapon", just less deadly than a gun.

You would have a tought time winning that argument, were you to actually present a case for that claim. The fact that someone can die if you use a taser (or mace, or a car, or a toothpick) on them does not make it legally, a "potentially deadly weapon". In the US, legally, tasers are not firearms and they are legal for civilians to carry without the restrictions of firearms.

I think chemisttree is suggesting that: while assaulting with the taser, the officer unintentionally caused the death of the victim, thereby satisfying the definition of 2nd degree murder.

I'm not sure if that's what chemisttree meant, but quite clearly, the officer did not assault the victim with a taser as you suggest.

 

[russ_watters]

Chemisttree: I believe that Russ's point is that you think it is 2nd degree murder because you believe he actually intended to shoot the man and that according to the findings of the jury it was manslaughter, because they decided that he had not intended to shoot the man.

Sort of. Chemisttree is playing both sides against the middle, simultaneously arguing that the officer lied and meant to use the gun (which would be 2nd degree murder) and that even if he didn't lie and actually did shoot him accidentally, it would still be 2nd degree murder (which is clearly wrong).

 

[russ_watters]

This clarifies a little bit:

I think he stood up intending to use his taser but then he thought he saw him reaching for a gun in his waistband. He changed his mind, quickly grabbed his 9mm and shot. He immediately realized his mistake etc... This scenario is consistent with the facts.

Yes, you are correct that that is consistent with the facts. It is unclear to me if that is 2nd degree murder because as you clearly acknowledge, that would be accidental, but in either case, it is irrelevant: "Consistent with the facts" is not "beyond a reasonable doubt". Even if you believe that's what happened, if you were on a jury and returned a verdict based on "consistent with the facts", the verdict would have to be thrown out because you were using an insufficient standard of proof.

But you have also argued - as I understand your argument - that even if the facts are exactly as the officer says, it is still 2nd degree murder. You've backed that up with a clear statements about your interpretation (wrong, as it is), so I'm pretty sure that's the intent of your claim.