Latest from Dean Johnson: Could Mehserle Walk Free on December 3?

On December 3rd, Johannes Mehserle could walk out of a Los Angeles courtroom a free man.

At least temporarily.

Mehserle’s lawyers will argue that Mehserle should be set free on bail pending the outcome of his appeal.

It is possible for a person who has been convicted of a felony to obtain bail pending appeal. The initial application is to the trial court (that is what will happen Dec. 3rd). The Court of Appeal can review a denial of bail pending appeal and bail issues can also be addressed by a Writ for Habeas Corpus.

The burden is on the defendant. In order to get bail, the defendant must prove by clear and convincing evidence that:

-he is not likely to flee the jurisdiction;

-he does not pose a danger to the safety of any person or to the community and

-the appeal presents a substantial legal question and is not for purposes of delay.

In deciding any bail question, the court can consider the defendant’s ties to the community, his record of making court appearances, the length of the pending sentence and whether the crime is a “serious or violent felony” as defined in the Penal Code.

If you go down the checklist of factors, Mehserle’s chances of getting bail look pretty good.

The one factor that weighs against him is that he did flee to Nevada early in the case. This is mitigated somewhat by his claim that he left the area due to death threats and not to avoid prosecution.

The judge will probably not see Mehserle as a danger to the community. The judge has already said that he believes that the evidence is “overwhelming” that Mehserle intended to Taze Oscar Grant, not kill him. The bizarre situation that led to this case is not likely to be repeated.

The appeal does present substantial legal questions. Most of these questions revolve around the fact that the judge instructed the jury on the “unlawful act” theory of involuntary manslaughter as well as the “negligence” theory.The theory is that, since Oscar Grant did not resist arrest, the use of ANY force was excessive and therefore an “unlawful act.”

This opened the door for the prosecution argument that Mehserle was guilty EVEN IF he intended to use the Tazer, rather than the gun.  The defense says that no instruction should have been given on this theory. This is so, the defense says, because, in order to find Mehserle guilty on this theory, it would have to attribute Officer Pirone’s illegal arrest to Mehserle (in order to find an “unlawful act”), and because it allowed all 12 of the jurors to vote “guilty” even though the jury might not have been unanimous on the legal theory of guilt. There are other issues as well, such as the exclusion of evidence of Grant’s prior conduct and the denial of a new trial based upon “newly discovered evidence.”

Mehserle has made all court appearances. He has strong family ties to the community. Even if his conviction is affirmed on appeal, he faces only about 7 months in prison. Cutting against this factor is the fact that the prosecution also has a possible appeal as to the dismissal of the gun enhancement. If the prosecution were successful, Mehserle could face a new trial on the enhancement. Should he lose at that trial, he would be facing up to 10 additional years in prison (of which he would do 85%), and the case would be classed as a “serious or violent felony.”

BUT,  You can’t really approach these cases in a “checklist” fashion. It would be extremely unusual for a judge to release a defendant pending appeal in ANY kind of homicide case, particularly a high-profile case where emotions in the community are running so high. Sometimes, its these “unwritten” reasons that carry the most weight. This may be one such case.

Dean Johnson, Attorney and Legal Analyst

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