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Nov. 09, 2009 - SF Chronicle

BART shooting trial location critical call

The law says jurors must stick to the evidence presented in court. But in the real world, jurors view that evidence through a thick lens of experience.

"The defense doesn't want African Americans on the panel - let's get real about it - because the victim was African American," Hennington said. Black jurors "are aware of the history of police brutality that has affected the African American community."

For this reason, attorneys and trial consultants say, Judge Morris Jacobson of Alameda County Superior Court will make a crucial choice when he decides where to move the murder trial of former BART police Officer Johannes Mehserle, who fatally shot an unarmed train rider while arresting him early New Year's Day.

State officials provided Jacobson with two options last week - Los Angeles and San Diego counties - after the judge concluded that Mehserle could not get a fair trial in Alameda County. Jacobson has not said when he will rule but has set a hearing for Nov. 19.

Experts familiar with both counties say they vary significantly in areas crucial to the Mehserle case: how residents feel about police officers and the historic relationship between law enforcement and minority communities.

Legacy of King case

In Los Angeles, the attorneys and consultants said, the average juror is more skeptical of law enforcement, due in no small measure to the 1991 beating of Rodney King by officers who were then acquitted in state court after their trial was moved to the more conservative Simi Valley (Ventura County).

San Diego, by contrast, is more politically conservative than either Los Angeles or Oakland, and many potential jurors have ties to the region's military and defense industry, leading to more robust support of law enforcement.

Atypical case

In typical criminal trials, a bias toward law enforcement helps a prosecutor. But when that prosecutor goes after a police officer, the tide reverses.

Mehserle shot 22-year-old supermarket worker Oscar Grant in the back at Oakland's Fruitvale BART Station while arresting him after a fight on a train. Through his attorneys, Mehserle said he intended to subdue Grant with a Taser and accidentally fired his service pistol.

Mehserle, 27, is white, and Grant was black.

Some have described the case as representative of a pattern of police abuse of young men of color - and now see it as a test of whether officers can be held accountable for wrongdoing. Others see an isolated mistake and have put some blame on Grant, saying he would not have been shot had he cooperated with BART officers.

Jurors, experts said, will have a hard time putting all of the politics aside.

That is, after all, how many non-jurors see it.

Outside factors

The experts said the best venue for prosecutors would have been Oakland. But Judge Jacobson concluded that extensive media coverage of the shooting, provocative statements by civic leaders and the specter of violent protests made a fair trial impossible.

According to a 2008 survey by the U.S. Census Bureau, Alameda County is more racially diverse than its counterparts in Southern California.

Racial breakdown

Forty-eight percent of Alameda County residents are white and 12.7 percent are black. In Los Angeles, the split is 52.7 to 8.8 percent, and in San Diego, it is 73.1 to 5 percent.

Marshall Hennington, a psychologist and jury consultant in Beverly Hills, said he feared the defense would seek a jury with as few black people on it as possible, regardless of where the trial is held.

But others said it would be a mistake for attorneys in the case to emphasize skin color over life experience.

Gabriel, who worked for the defense in the O.J. Simpson murder case, said people often focus on the nine black jurors who helped acquit Simpson at his 1995 trial. Overlooked, he said, is that many of the jurors had negative experiences with police officers in their past.

Comparing Alameda with L.A., San Diego counties

Alameda
Population: 1,474,368

Median household income: $70,395

Percentage of residents who graduated high school: 85.8

Percentage with bachelor's degree: 39.3

Percentage white/black/Asian/Hispanic*: 48/12.7/24.7/21.8

Percentage of voters registered Democratic/Republican: 57.7/15.1

Los Angeles
Population: 9,862,049

Median household income: $55,499

Percentage of residents who graduated high school: 75.2

Percentage with bachelor's degree: 28.1

Percentage white/black/Asian/Hispanic*: 52.7/8.8/12.9/47.7

Percentage of voters registered Democratic/Republican: 52.2/23.6

San Diego
Population: 3,001,072

Median household income: $63,026

Percentage of residents who graduated high school: 85

Percentage with bachelor's degree: 34.2

Percentage white/black/Asian/Hispanic*: 73.1/5/10.3/30.9

Percentage of voters registered Democratic/Republican: 36.3/35.9

*The Census Bureau count of Hispanics, based on origin, includes all races, including white and black.

Source: 2008 American Community Survey, U.S. Census Bureau; county registrars of voters

E-mail Demian Bulwa at dbulwa@sfchronicle.com.

This article appeared on page A - 1 of the San Francisco Chronicle