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Prosecution opposes Mehserle defense’s request to exclude racial slur from trial

The prosecution in the second-degree murder trial of Johannes Mehserle, the former BART Police officer who shot and killed unarmed passenger Oscar Grant on New Year’s Day 2009, is opposing defense requests to exclude evidence of the use of a racial slur shortly before the shooting and testimony from the mother of Grant’s child from the trial, according to documents made public yesterday by the Los Angeles County Superior Court.

Meanwhile, the defense is now seeking to prevent the use of a synchronized compilation of videos of the shooting made by the prosecution at trial.

Pirone’s use of racial slur “cannot be ignored”

Defense attorney Michael Rains asked the court late last week to prevent the use of evidence that former BART Police Officer Tony Pirone called Grant a “bitch ass n–,” using a racial slur referring to African-Americans, about a minute before the shooting at trial. Rains argued that the comment was irrelevant to the case, but could unduly prejudice the jury against Mehserle.

But in a motion dated June 7, prosecutor David Stein calls the use of a racial slur “highly relevant” to the case and argues for its inclusion as part of the “complete picture of the scene on the BART platform when Mr. Grant was killed.”

“The influence of these statements on the Defendant’s state of mind cannot be ignored,” Stein writes. Stein argues that any prejudicial effect is outweighed by the relevance of the evidence to the case.

Grant’s girlfriend’s testimony “particularly relevant”

In a separate filing, Stein argues for Sophina Mesa, the mother of Grant’s child and his girlfriend at the time of his death, to be permitted to testify during the trial.

Defense claims that other witnesses could provide the same information as Mesa are incorrect, Stein says. Not only does her testimony serve to shore up evidence from other witnesses whose credibility the defense “will undoubtedly attempt to attack,” she can provide unique insight into Grant’s state of mind, Stein argues.

“[Mesa] knew Grant intimately and therefore her testimony is particularly relevant when she offers testimony that Mr. Grant sounded ‘nervous’ and ’scared’” in a phone conversation shortly before the shooting, Stein writes. Moreover, Mesa is expected to testify that Grant would have been frightened by Mehserle pointing a Taser at him minutes before the shooting.

“If Mr. Grant was ‘nervous’ and ’scared’ after just being beaten by the police for no reason, it was less likely that he would resist arrest minutes later when he was shot by Defendant,” Stein argues.

The prosecution also disputes Rains’s assertion that if Mesa is called to the stand, the defense needs to be able to cross-examine her about Grant’s parole status. “Questioning in this area does not affect Ms. Mesa’s credibility, her bias or her interest while testifying,” Stein says.

Judge Robert Perry rejected a previous request by the defense to bring up Grant’s parole status at trial, saying that it wasn’t relevant to the case but could prejudice the jury against Grant, and Stein argues that the same analysis should apply to this request as well.

Defense: synchronized video misleading

Meanwhile, in a third motion filed Monday, Rains asks for a synchronized compilation of videos of the shooting made by the prosecution to be excluded from evidence as incorrect and misleading.

Both sides are expected to use synchronized versions of videos of the shooting, in which two or more separately shot videos showing the same events from different angles are placed side by side, as crucial pieces of evidence in the case.

“The problem with the DA’s synchronized video is that some of the key images are so badly out of synchronization […] that they no longer comprise a reasonable representation of the true events,” Rains writes.

As an example, Rains says that the prosecution’s synchronization is claiming that images from two videos showing Pirone “bent forward with his left hand at or near Grant’s head” and one showing Pirone “standing with his left hand at or behind his left waist” represent the same moment in time, seconds before the shooting.

The fact that the image showing Pirone standing also shows Grant with his hands behind his back might cause jurors to “incorrectly conclude that both Grant’s hands were behind and in the vicinity of the small of his back at the time the shot was fired,” Rains argues, saying that the defense synchronization, compiled by defense video expert Michael Schott, shows differently.

The prosecution has also lost important detail in the images in the synchronization process, Rains says, saying that some of the videos in the prosecution version “have been reduced to 25% of original size” and that lossy image compression algorithms used in the process have caused “degradation of the images.”

Jury selection in the case continues today in Los Angeles, where the trial has been moved due to concerns over whether Mehserle could receive a fair trial in Alameda County. Opening arguments are expected June 10.

Filings in this case are available from the Los Angeles County Superior Court’s website.

Continuing coverage of the Johannes Mehserle BART Shooting trial is funded in part through Spot.Us. Visit our special trial news page and help fund this project.

Beat reporters Tashina Manyak and Jennifer Courtney contributed reporting from Los Angeles. Contact Steven Luo at