Skeptical judge grants bail to former BART cop

(01-30) 15:31 PST OAKLAND -- Former BART police Officer Johannes Mehserle declared that he was going to fire his Taser stun gun, not his pistol, just before he shot an unarmed man he was trying to arrest early New Year's Day at an Oakland station, his attorney argued in persuading a judge today to set bail in Mehserle's murder case. Attorney Michael Rains wrote in a court document that a second BART officer, Tony Pirone, reported hearing Mehserle say just before shooting Oscar Grant, "I'm going to tase him, I'm going to tase him."  Afterward, Mehserle said he thought Grant had been reaching for a gun, Rains wrote. Rains gave the account in a motion asking Judge Morris Jacobson to release Mehserle on bail while the former officer defends himself against murder charges. Jacobson agreed to set bail at $3 million, even as he expressed deep skepticism about the account in Rains' motion. After a one-hour hearing in Alameda County Superior Court, Jacobson said Mehserle "has a willingness to add to the story, to change the story, to make up something that's not true to avoid consequences." It was not immediately clear whether Mehserle would be able to post bail and be released from Santa Rita Jail. Before the hearing, Rains said Mehserle could not afford a high bail but that his parents might be able to put up the money. Mehserle, dressed in a jail-issue jumpsuit, attended the hearing but did not speak. The legal filing by Rains does not specifically give Mehserle's explanation for the shooting at Fruitvale Station, which happened as he and other officers were trying to arrest Grant for resisting an officer. Instead, it quotes statements that several other officers and witnesses gave to authorities and refers to evidence from the scene. Still, it marks the first time that Mehserle's attorneys have indicated what his defense could be at a trial.   Rains wrote that "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." The prosecutor in the case, John Creighton, questioned whether that account made sense. Creighton noted that the defense attorney quotes Pirone as saying after the shooting that Mehserle approached him and said, "Tony, I thought he was going for a gun.""If he intended to pull his Taser and pulled his service weapon by mistake, why would he say to another officer after the fact, 'I thought he was going for a gun'?" Creighton said. "Why wouldn't he say, "Oh my God, Tony, I meant to pull my Taser,' or something to that effect?"Judge Jacobson also pointed to the reported remark about the gun in questioning whether Mehserle was being honest. The Taser explanation "appears to me to be a change in his story," Jacobson said.Rains' 14-page bail motion asserted that Mehserle is not a danger to the community or a flight risk. But John Burris, an attorney representing Grant's family, said Mehserle should not be released. He said the evidence in the case - including camera footage of the shooting - suggested that the officer meant to fire his gun, not his Taser."That's a defense that's not surprising, as much as it's been talked about," Burris said. "I would only say that, No. 1, the Taser shouldn't have been used, either. There wasn't any basis for that. And No. 2, the facts on the videotape don't support that as an argument. But that has to be presented at trial."Burris said, "The evidence is consistent with murder."Mehserle, 27, and other BART officers had detained the 22-year-old Grant and four of his friends just after 2 a.m. at the Fruitvale Station while investigating reports of a fight onboard a Dublin-Pleasanton train. Two people on the train told police that about 20 people had been involved in what amounted to a "barroom fight," and that the participants were "hammered and stoned," Rains wrote.A BART officer on the platform, identified as J. Woffinden, described the fight suspects as "extremely uncooperative and combative in their verbiage and body language," Rains wrote. Woffinden said that "the scene was chaotic and confusing, due to the loud yelling and physical defiance displayed by the group of males."Grant was shot just after Pirone told him he was under arrest for resisting an officer. Rains quotes Pirone as saying Grant had disobeyed instructions and cursed officers. Grant put up a brief struggle, but was lying face-down, with both hands behind his back, when Mehserle shot him, Oakland police investigators said in a court affidavit. District Attorney Tom Orloff said his office charged Mehserle with murder because the former officer had committed an intentional, unlawful act when he shot Grant. Mehserle declined to talk to criminal investigators. He quit the BART police force Jan. 7 after two years on the job rather than be interviewed by internal affairs inspectors who could have brought a disciplinary case against him. BART said it bought 64 Taser X26 stun guns last year for $62,000, then placed them into service on Sept. 9 after officers did six hours of training. Mehserle shot Grant with his Sig Sauer P226 semiautomatic pistol, BART said. The bail motion gives an account of the moments before the shooting, stating that Grant overheard Pirone tell Mehserle that Grant was under arrest. As a result, Rains wrote, Grant "attempted to stand up, but was forced to the ground face first." Mehserle and Pirone ordered Grant to put his hands behind his back to be handcuffed, but Grant resisted, Rains wrote. Rains quoted Pirone as saying that he tried to help Mehserle by holding Grant's head and shoulders down. According to the motion, "Pirone said he heard Mehserle say, 'Put your hands behind your back, stop resisting, stop resisting, put your hands behind your back.'  "Then Mehserle said, 'I'm going to tase him, I'm going to tase him. I can't get his arms. He won't give me his arms. His hands are going for his waistband,' " Rains wrote. "Then Mehserle popped up and said, 'Tony, Tony, get away, back up, back up.' " Rains wrote that several witnesses described Mehserle as looking stunned after he shot Grant. One said Mehserle "had an expression on his face like, 'Holy s-, what happened or what did I do, with his hands around his head,' " the attorney wrote.  He added that the witness "believed the officer also had an expression as, 'Why did my gun go off?' " The bail motion also provides some background information on Mehserle. It says he was born in Germany but has lived in the Bay Area since age 4; that he grew interested in police work through a friend who was an officer; and that he plans to marry his girlfriend, who gave birth to the couple's first child Jan. 2. SOURCE:SFGATE.COM