 What should be the result when a high profile case causes public protests, leading to nationally televised vandalism, on camera threats made against the defendant, along with inflammatory remarks made by elected officials before the jury is selected?
Was there anyone who’s legal training, at a minimum, consisted of Perry Mason reruns, the O.J. Simpson trial, and Court-TV, who did not believe a change of venue was imminent in the case of former BART police officer, Johannes Mehserle, who is accused of murder in the fatal shooting of Oscar Grant III? Defense attorneys presented Alameda County Superior Court Judge Morris Jacobson with more than 4,000 print articles and radio and television broadcasts related to the shooting. The death threats made against Mehserle, his attorneys and his family contributed to the change of venue, but it was the protestor’s actions that weighed heaviest on Jacobson’s decision. “This case may well be a close one and difficult for some or all of the jurors to decide,” Jacobson said. “The jurors will likely be making a difficult decision that could go either way. These jurors will be exposed to protesters' 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 will be concerned about the real possibility more riots and violence depending on the verdict they choose,” Jacobson wrote in his opinion. A change of venue was always my concern; I had hoped the case would be tried in Alameda County. But a collective desire in large part for 15 minutes of fame poisoned the possibility in Jacobson’s mind of Mehserle receiving a fair trial.
In January I wrote:
“Each act of violence along with the accompanying rabble-rousing remarks merely strengthens the defense attorney's case for a change of venue. Can anyone say Simi Valley?” I followed up in February with:
“For all of the justifiable frustration, the behavior from a portion of the protesters makes the whole the unwitting allies of the Mehserle defense team, while diminishing the legitimacy of their movement.” I’d say not only were they the unwitting allies of the Mehserle defense team without their actions the case would probably sill be in Alameda County. Since my earlier observations did not support the raucous actions by some of the protestors, I received numerous sophomoric e-mails accusing me of caring more about the rights of Mehserle than those of Grant.
It mattered little, during the same period, public calls by Oakland Mayor Ron Dellums as well as the family of Oscar Grant III for calm, fell on deaf ears. The root cause for the change of venue is as old as human history: arrogance and hubris. It is the belief that somehow one’s cause is so noble it cannot be influenced by wrong, absolving one of the need to self-reflect about their behavior. The few seconds of grainy footage that shows Grant being fatally shot was all the evidence required for many protestors to be stricken with moral certainty. But they only served to once again prove that moral certainty is the greatest form of blindness in society. There were just enough protestors, who did not share the legitimate calls for justice, to falsely hide behind the tragedy of Oscar Grant, rationalizing their acts of mayhem. Each window broken, car burned, inflammatory statement made, aided the cause of the defense team. The outcome could not have been more effective if they were on retainer. What happens if the case, whatever jurisdiction it is held, does not return a verdict so many already believe is fait accompli? Will protestors make Jacobson’s concerns that led to a change of venue look like Nostradamus? Should Oakland’s business owners and residents leave town for several days? The change of venue is a black eye for Alameda County and ostensibly for Oakland. Rather ironic, given Oakland’s only tangible involvement was the incident occurred at the Fruitvale BART station. The change of venue does offers a teachable moment. It is my hope those involved, particularly those in a leadership role might chronicle the events along with their contribution that led to the change of venue.
That way, when the next Oscar Grant case happens, and it will happen again, there will at least be a written record of what not to do.
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