Motion to dismiss Mehserle charges denied


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Michael Rains, Mehserle's lawyer, alleged at a hearing on Friday that Alameda County Superior Court Judge C. Don Clay's ruling at the end of Mehserle's preliminary hearing on June 4 ordering Mehserle to stand trial on a murder charge was "arbitrary, capricious and patently absurd," Mehserle's attorney said today.

But Judge Thomas Reardon, who presided over the hearing on Friday and issued his 12-page ruling today, said there was no violation of Mehserle's right to due process at his highly publicized seven-day preliminary hearing.

Reardon said Clay "struck an admirable balance between the preservation of defendant's right to a fair and thorough hearing and the husbanding of scarce judicial resources."

Rains alleged that Clay excluded evidence that would have helped Mehserle, such as limiting the testimony of a defense video expert and excluding testimony by an expert on training in the use of Taser stun guns.

Mehserle, 27, shot Grant once in the back with his service weapon on the platform of the Fruitvale BART station in Oakland shortly after 2 a.m. on Jan. 1 after he and other officers were called to the station in response to reports of a fight on a train.

Rains admitted during the preliminary hearing that Mehserle killed Grant but claimed that it was "a tragic accident" because Mehserle meant to use his Taser device on Grant and fired his gun by mistake.

Rains said Mehserle shouldn't face murder charges because there's no evidence that he exhibited malice during the two and a half minutes he was on the station's platform before the shooting. He said that at the most, Mehserle should face a lesser charge such as manslaughter.

But at the end of the hearing, Clay said, "There is no doubt in my mind that Mr. Mehserle intended to shoot Oscar Grant with a gun, not a Taser" because Mehserle had both his hands on his gun when he fired that shot that killed Grant.

Rains said on Friday that Clay's remark was an error because the defense's Taser expert would have testified that Taser users are trained to use both hands on their stun guns while firing.

However, Reardon said "there was no abuse of discretion" on Clay's part in barring the testimony from the Taser expert.

Mehserle, who is free on $3 million bail, is scheduled to return to court Oct. 2 for a hearing on a defense motion asking that his trial be moved away from Alameda County based on his claim that he can't get a fair trial in the county because the shooting received widespread publicity and generated outrage in the community. His trial is scheduled to begin Nov. 2.

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