Judge has tough call in Calif. transit killing case

[November 05, 2010]  LOS ANGELES (AP) -- For nearly two years, the families of Oscar Grant and Johannes Mehserle have agonized over a fatal shooting caught on video that enflamed racial tensions and led to rioting and unrest in Oakland.

They have attended court hearings, sobbed during emotional and sometimes graphic testimony, and now rest their hopes with a judge in Los Angeles to hand down a sentence they feel is fair.

Superior Court Judge Robert Perry on Friday will decide whether Mehserle, a white former transit officer, should be given probation or be sent to prison for killing Grant, an unarmed black man, on an Oakland train platform New Year's Day 2009.

Mehserle, 28, was convicted in July of involuntary manslaughter and faces up to 14 years in prison. The trial was moved to Los Angeles because of intense media coverage and violence that ensued after the shooting.

Grant's family will get their much-anticipated chance to speak directly to Mehserle at the hearing. Grant's uncle, Cephus "Bobby" Johnson, who has become the family spokesman, said he's given much thought to what he will convey in court.

"I'm going to say that a part of me died that night when Oscar was killed on that platform," Johnson said Thursday. "My entire family feels like they lost a part of their lives. I'm going to express our pain."

The case has drawn comparisons to the infamous 1991 Rodney King beating by Los Angeles police officers. Oakland police said they are prepared in case there is a replay of the rioting that followed the shooting.

In recent weeks, both sides have tried to garner attention in hopes of a favorable outcome.

Mehserle gave his first interview last month to a San Francisco Bay Area television station where he said he was in disbelief when he realized he shot Grant, 22, with his handgun instead of his Taser stun gun he says he intended to use.

Mehserle's family also placed a banner reading "Free Johannes Mehserle" on a sailboat that sat in McCovey Cove during the San Francisco Giants World Series run. Not to be outdone, another vessel had a sign that read "Justice for Oscar Grant."

A group called the Los Angeles Coalition for Justice for Oscar Grant also recently delivered hundreds of postcards and letters urging Perry to sentence Mehserle to the maximum prison term.

Experts say although Perry probably already knows what he's going to do, the pleas made by both sides will not go unnoticed.

"Those statements can be very persuasive and my sense is you will see some very emotional testimony from both sides in that courtroom," said Steven Clark, a San Francisco Bay Area defense attorney and former prosecutor who has followed the case.

Perry will first have to consider a defense motion for a new trial then listen to victim impact statements.

Lita Gomez said her sister Sophina Mesa, the mother of Grant's 6-year-old daughter, will share similar remarks she wrote in a recent letter to Perry.

Gomez read her letter last month to hundreds attending a rally for Grant outside Oakland City Hall proclaiming that Mehserle deserved more than an involuntary manslaughter conviction.

"A sentence of 14 years is not enough, but anything less will be another stab in our hearts," Gomez said to cheers. "It would be a message to our community that we don't matter and that Oscar Grant doesn't matter, that our police officers can kill us with little or no consequence...

"Oscar was robbed of his life, a little girl was robbed of her father, a young woman was robbed of her future husband and a mother was robbed of her son."

The involuntary manslaughter conviction has a sentencing range of two to four years. In addition, Perry must decide sentencing for a gun enhancement that jurors found to be true that carries a term of three, four or 10 years.

State law also allows Perry to grant Mehserle probation under unusual circumstances.

Mehserle's attorneys have argued for probation, saying the shooting was a tragic mistake. In court documents, his girlfriend, only identified by initials, said she's had trouble telling the couple's son, who was born the day after the shooting, about where his father is.

"I tell (our son) his father loves him, but how do I explain to him that Johannes didn't just leave him behind?" she wrote. "How do I tell (our son) that his father thinks about him every day and cries every time we talk?"

Mehserle testified during his trial that he struggled with Grant and saw him digging in his pocket. Fearing Grant might have a weapon, Mehserle said he decided to shock Grant with his Taser but pulled his .40-caliber handgun instead.

At least five bystanders recorded the shooting on video that was played at trial.

Earlier this week, Gomez said Grant's daughter, Tatiana, a first-grader, is slowly learning more about her father's death.

"She says, 'I want to see my dad, I want to see my dad,' and that means going to put flowers at his gravesite," Gomez said.

[Associated Press; By TERRY COLLINS and GREG RISLING]

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