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July 01, 2010
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Jury must decide if BART cop killed Grant accidentally

Must find that the killing was premeditated to support a first-degree murder charge

By GREG RISLING
Associated Press

LOS ANGELES — Two and half minutes. That's the time Johannes Mehserle spent on an Oakland train platform before he shot and killed Oscar Grant who lay on his stomach.

On Thursday, two attorneys will likely spend several hours dissecting Mehserle's every movement in that short time frame during their closing arguments. A jury will then begin deliberating whether Mehserle, a former Bay Area Rapid Transit police officer, should be found guilty of murder or lesser offenses such as manslaughter.

The trial has been tinged with racial overtures because Mehserle is white and Grant was black. Although a fellow officer was heard on a video taken by a train passenger uttering a slur at Grant before the shooting, there's been no evidence presented that Mehserle's actions were influenced by prejudice.

Mehserle, 28, has pleaded not guilty to murder. The trial was moved from Alameda County to Los Angeles because of excessive media coverage and tensions that boiled over into violence in Oakland.

Mehserle testified last week he mistakenly pulled his handgun instead of his Taser stun gun. Prosecutors have argued Mehserle intended to kill Grant, and that Mehserle used his handgun because officers were losing control of the situation.

On Wednesday, Superior Court Judge Robert Perry said jury instructions will include second-degree murder, voluntary manslaughter and involuntary manslaughter as options for a possible conviction.

Perry said there wasn't enough evidence to justify a conviction for first-degree murder.

"The shooting occurred in a manner absent of premeditation to support first-degree murder," Perry said during a hearing without the jury present.

Defense attorney Michael Rains has said the jury should only be given two choices - second-degree murder or acquittal.

Second-degree murder is defined as an intentional killing that isn't premeditated or planned, or a killing caused by dangerous conduct and a defendant's lack of concern for human life.

Perry said a jury should sort out to what degree, if any, Mehserle should be held accountable. He conceded though that the jury may have troubles with the choices given to them.

"Whenever there is a question, instruct," Perry said. "The only downside from a trial perspective is confusion. There is a strong potential for confusion for jurors."

Rains said prosecutors hadn't shown that Mehserle intentionally killed Grant or that his client was fueled by anger in pulling his gun.

Associated PressCopyright 2014 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

"Everything in this case points to an accident," Rains said.

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