Revolution #182, November 8, 2009

Judge Orders Change of Venue in Oscar Grant Case

Outrageous… and Unjust!

On Friday, October 16, Alameda County Superior Court Judge Morris Jacobson ruled that the Oscar Grant trial would not take place in Alameda County where Oakland is located and where Oscar Grant was shot and killed on January 1, 2009 by Bay Area Rapid Transit (BART) police officer Johannes Mehserle. Mehserle has been charged with murder. The Judge has now ruled that the venue (location) of the Oscar Grant trial has to be changed because Mehserle could not get a “fair trial” in Alameda County.

This is outrageous and unjust!

A History of Venue Changes to Prevent Justice

How many change-of-venue motions by defendants were granted in California during the entire year of 2008? None! And the legal trend is away from granting them (according to news reports and the Alameda County District Attorney’s motion opposing the venue change). Yet in this case, an exception was made.

Asking for a change of venue has been used repeatedly to acquit cops who’ve committed the most heinous crimes. And when these motions are granted, it usually means searching for a rural or suburban venue where a lot of people don’t believe a cop would murder a Black man in cold blood and for no reason in front of witnesses, as happened to Oscar Grant.

Two examples:

The police who killed Amadou Diallo in the Bronx in 1999 when he reached for his wallet were acquitted after the trial was moved to Albany in upstate New York, where people are more predisposed—due to their life experiences—to accept police lies than in New York City.

The Los Angeles police who were videotaped beating Rodney King were acquitted in their first trial, in 1992, when that trial was moved to suburban—and largely white—Simi Valley. The court’s decision to move the Rodney King trial out of Los Angeles (and the legal arguments it included) were repeatedly cited by Mehserle’s lawyer and the judge to move the Oscar Grant case.

Does Life Experience with Police Murder Cut Against Justice for Murdering Police?

In the course of arguing for a change of venue, and in a motion that overall covered up and distorted reality, Mehserle’s lawyers presented some revealing truths in their change of venue motion. Mehserle’s motion states:

“...there can be no doubt that police officers shoot and kill black citizens of this county at a proportion far higher than their proportion of the population... it is impossible to dispute the impression left by the numbers, an impression held by significant numbers of potential jurors in this County: if you’re a black person in Alameda County, it’s dangerous to deal with the police.” (p. 62 of Memorandum of Points and Authorities in Support of Motion for Change of Venue)

The motion then cites damning statistics:  “ this county blacks are the targets of police homicides determined to be justifiable at a rate about three times that of their proportion of the population. There were forty-eight such killings between 1999 and 2008 and African Americans were the targets of some 41% of these homicides, though they make up only about 13.5% of the population of the County.” (Motion, p. 8) Further, “between 2004 and 2008, there were 45 police shootings in Oakland alone. Although blacks make up about a third of Oakland’s population, they were the targets in 85 percent of the shootings.” (Motion p. 8, 9, italics in the original)

But Mehserle’s lawyers presented this as evidence for why the trial should be moved to a community where people are ignorant of this reality, and where their ideas about police and what they do are more conditioned by cop shows and mainstream media distortions. The underlying logic is that a “fair trial” of a police officer requires a jury, or a community and a trial environment, that is predisposed to look upon the police favorably, and doesn’t have the experience or sophistication or ability to think critically to be skeptical of police.

And the judge ruled Mehserle could not get a fair trial in Alameda County, in part, because a survey presented by Mehserle’s lawyers claimed that “70% of potential jurors have prejudged defendant’s guilt or innocence already.” Yet even according to this survey less than half the people questioned felt that Mehserle was guilty.

Humanizing the Victim: A Reason to Move a Trial?

In “The Status of the Victim” section of his ruling, the judge states that as a result of publicity, Oscar Grant “has been personified, humanized and cast in a sympathetic light since his death.” He concludes that these circumstances “favor changing venue.”

Stop and think about that. In this era of so-called “victims’ rights,” victims of at least certain kinds of crimes are routinely “personified, humanized and cast in a sympathetic light.” Yet in this case a whole different set of rules has been invoked, so that, bizarrely, the fact that the victim of a horrible crime has been recognized as a human being is invoked as a reason why the man who killed him cannot get a fair trial in the county where the crime took place.

Prosecutors Forget How to Prosecute

When have you ever heard of a criminal case, at any stage of trial, where the defense presents thousands of pages of evidence while the prosecution presents almost none? In this case, the District Attorney’s office—the prosecution—did formally oppose the change of venue motion, but it did not vigorously fight this and in many ways paved the way for the judge’s decision.

For instance, the judge noted in his ruling that “massive documentary exhibits were admitted into evidence at this hearing,” And, he acknowledged, “Almost all of the evidence offered and admitted in this hearing was produced by the defense.”

What would it have meant for a prosecutor in this case to actively oppose the change of venue? The prosecution would have to argue that people in the inner cities do live under systemic police terror, and that people who experience this would make them better judges of the evidence in this case. And that is something that no prosecutor in this system could or would do.

This, too, is part of a pattern. Repeatedly, when it is actually a cop on trial, the prosecutors act like they forgot how to prosecute. They present weak cases, cross-examine with kid gloves, and generally accept the terms of the cop’s defense lawyers.

Does protest prevent justice? Or is protest the only thing that has brought a chance for justice?

The judge’s main argument for moving the Oscar Grant trial is that there’s been too much protest. In his ruling, he states: “This intense political activity and local turmoil that is now, and has been, an ever-present part of this case, is a factor weighing very heavily in favor of a venue change.”

He added: “These jurors will be exposed to protestors’ angry demand for ‘justice for Oscar Grant’ each time they go in and out of the courthouse, a constant reminder of the impending civil unrest. These jurors also likely will be concerned about the real possibility of more riots and violence depending on the verdict they choose. Under these circumstances, there is a reasonable probability that defendant cannot get a fair trial. This situation is the present reality.”

First point: Protest is not illegal. People should protest terrible crimes and injustice. Second, point: Protest is the only reason why there is a chance for justice for Oscar Grant. The fact that protest, and fighting for justice for victims of police murder justifies moving a trial, that itself is a revealing exposure of the nature of this system, and its legal system.

Between 2004 and 2008, there were 45 “officer-involved shootings” by Oakland cops—80 percent of those shot were Black men. None were prosecuted or disciplined in any way. In the last 15 years, there have been over 2,000 police killings in the U.S.—yet there were only six cases in which murder charges were filed against police, and none resulted in convictions.

The trial of Johannes Mehserle is, according to his lawyers, the first trial of a police officer for a murder committed while on duty in the history of California. This is a searing exposure of how the system protects murdering cops—hundreds of people have been killed by cops in California, and not a single murder trial until now.

What was the difference in this case? And why is there a chance of justice? Only because people first defied police intimidation and threats to record the murder on their cell phones, and then because people persisted in courageously going into the streets to demand justice in the face of police brutality and arrests.

Again, where does everyday, ongoing, pervasive violence and intimidation come from for youth like Oscar Grant in this society? What violent force has already tried to terrorize witnesses in this case by trying to seize people’s cell phones who recorded the killing, and attacking and arresting people who have been in the streets demanding justice? The protestors who fought for justice for Oscar Grant have had to go up against the “threat of violence” by the police. People who testify against the police do so at great risk.

* * *

Under capitalism, the law protects exploitation, and all the social relations in this society. In theory, the law—unjust as it is—is enforced equally; both the rich and the poor are prohibited from stealing a loaf of bread to feed their hungry children. But in reality, not only is the law unjust, enforcement of the law is wildly skewed when the interests of the system are at stake.

In justifying his change of venue ruling, the judge in this case wrote: “Defendant’s status as a police officer is a factor that weighs heavily in favor of a venue change…” In other words: a special set of rules applies to killer cops.

The only reason that there is a chance for justice for Oscar Grant is that there has been protest and public outrage. And the only hope that there will be justice in this case is ongoing and more protest and outrage. And that anger, that outrage, and that courageous protest can become part of building up a revolutionary movement to bring to an end the system that routinely murders young Black and Latino men with impunity.

Send us your comments.

If you like this article, subscribe, donate to and sustain Revolution newspaper.

What Humanity Needs
From Ike to Mao and Beyond