Mehserle's lawyer wants gag order lifted

February 9, 2009 11:17:14 PM PST
The attorney for a former Bay Area Rapid Transit police officer charged with murder for the shooting death of Oscar Grant III early on New Year's Day is asking a judge to lift his gag order in the highly publicized case.

Michael Rains, who represents 27-year-old Johannes Mehserle, said in a legal brief filed on Friday and made public late today that the gag order "has hamstrung Mehserle by preventing any attempt he might otherwise make to address the barrage of negative publicity in the case which has presumed his guilt as murderer."

Rains said Alameda County Superior Court Judge Morris Jacobson's decision to issue a temporary gag order at the end of Mehserle's bail hearing on Jan. 30 was prompted by the defense giving a copy of its motion asking for bail to the San Francisco Chronicle shortly before the hearing.

Rains said the bail motion had already been filed with the court before it was provided to the newspaper.

Jacobson decided at the hearing that Mehserle, who resigned from the BART police force a week after the shooting death at the Fruitvale station in Oakland, is eligible for bail but set it at a high amount, $3 million.

Mehserle, who had been in custody since he was arrested in the Zephyr Cove area of Lake Tahoe, Nev., on Jan. 13, was released from the Santa Rita Jail in Dublin last Friday afternoon after raising the $3 million.

He is scheduled to return to court Friday afternoon for a hearing on whether the gag order should be maintained. Mehserle also is scheduled to have a preliminary hearing on March 23 to determine if there's enough evidence to have him ordered to stand trial.

The shooting incident occurred after Mehserle and other BART police officers responded to reports that two groups of young men were fighting on a train.

In his brief, Rains said, "The BART shooting case has received an avalanche of media coverage, nearly all of it vilifying Mehserle."

Rains said John Burris, the attorney who represents Grant's family, has supplied videos of the incident to the news media, "where they have been aired and downloaded to the point of saturation."

Rains alleged that Burris "has had free reign and offered a number of inaccurate and typically inflammatory statements" about the incident.

The defense lawyer said media coverage of Mehserle's bail hearing is "illustrative" of his belief that the gag order is harming the former BART police officer.

Noting that newspapers reported that Jacobson said Mehserle changed his story to minimize his responsibility for Grant's death, Rains said the result of the gag order "was to completely silence any effort by the defense to 'set the record straight' about information which had come to light during the bail hearing."

Rains wrote, "The media would have the public believe that the Court (Jacobson) essentially pronounced judgment on Mehserle, weighing in on the state of the evidence and his character (to be clear, the defense takes exception to some of the Court's findings)."

Referring to Burris, Rains said, "It is not the statements of the parties which are the source of prejudicial publicity, but instead statements of third parties."

Noting that the gag order doesn't apply to Burris because he's not involved in the criminal case against Mehserle, Rains said, "The continuance of the protective order (gag order) will only serve to further prejudice the judicial process, rather than to protect it."

Rains said that if Jacobson is concerned about the effects of pretrial publicity, there are less restrictive alternatives than a gag order, such as moving Mehserle's case to another county.

Rains said that as an alternative to the current gag order, Jacobson could allow the prosecution and defense to speak to the news media within 30 minutes of the conclusion of every court proceeding "in order to inform the public about what has transpired and to dispel any misconceptions about what has taken place in court."

Briefs on the gag order were due at 5 p.m. today.

Briefs by the Alameda County District Attorney's office and news organizations haven't yet been made public.


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