I’m not going to talk about whether justice was done in the Oscar Grant case or go on about the larger issue of Black men, law enforcement and violence in America. There are plenty of folks online providing that kind of commentary and probably better than I could. Rather, I’m going to quickly touch upon a few points of law without contributing analysis of the case or speculating upon the outcome. I wouldn’t do that without having been in the courtroom or having read the transcripts. No promises, but maybe this will help folks who didn’t sell their soul to the devil go to law school some help they’re trying to understand how former officer Johannes Mehserle could have been convicted of involuntary manslaughter for killing Grant.

Watching the commentary on Twitter immediately after the verdict came down, there were a few main points that stood out: Jury selection; Homicide charges; and Sentencing.

Jury Selection

• @DBDR tweets: also, how in the hell was there not at least one black person in that jury? not exactly a jury of one’s peers.

You might be surprised to know that the phrase “a jury of one’s peers” does not appear in the Constitution. So where does it come from? Courts have sort of mashed up the Sixth Amendment right to “a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,” with the Equal Protection Clause of the 14th Amendment. That being said, cases over the years have recognized that in order to provide that impartial jury, the pool of jurors must be diverse in many ways.

A paneled jury, the 12 (or less in some jurisdictions) people who sit in the jury box, does not have to be representative of the community where the trial takes place. The jury does not have to be of the same race, class, gender, religion or political affiliation as the defendant OR the victim in the case.

To meet the standards of equal protection under the law and due process, all that is required is that the POOL of jurors is diverse. If you’ve ever been called for jury duty, you may recall the large group of all the folks called to duty that day. That group must be diverse. From there, attorneys have what are called peremptory challenges that allow them to dismiss a juror for pretty much any reason EXCEPT because of a potential juror’s race or gender. The number of peremptory challenges each party has varies by state. Other than that, the only way to excuse a juror is “for cause,” meaning the lawyer must explain to the judge why she believes that juror can’t be impartial. If the judge accepts, the juror is excused.

Homicide – Involuntary Manslaughter

• @joymichelle tweets: doesn’t understand how shooting someone in the back is involuntary manslaughter? no color or race involved…how is that a mistake?

Legally, murder is never just plain murder. The law recognizes different types or degrees of murder that give consideration to the defendant’s state of mind and/or contributing circumstances. The law has decided that there ought to be more punishment for crimes where the defendant had a specific intent to kill, killed after having deliberated over the killing, or acted with malice in their mind, also known as having an “abandoned or malignant heart.” There are also allowances for killings without intent or an especially villainous mind.

Involuntary manslaughter is sort of a misnomer because it doesn’t jibe well with our common sense idea of voluntariness. We think that if you chose to do something, it was voluntary. However, homicide laws are usually concerned with the outcome you desired. With the crime of involuntary manslaughter, one is said to lack the intent to cause the outcome. The defendant need only be criminally negligent in most jurisdictions to be convicted.

The idea here is that killing happened as a result of defendant’s severe negligence or elevated degree of recklessness. Basically, someone was acting way out of pocket and ended up killing another person. They didn’t mean to kill them, but they did and since they should have known better than to act so recklessly, they get slapped with involuntary manslaughter. Involuntary manslaughter is also referred to as: killing without caution and killing with reckless disregard.

To prove Involuntary manslaughter in California, the State must prove, beyond all reasonable doubt, that there was an unlawful killing committed during the commission of a lawful act which might produce death, in an unlawful manner, or without due caution. The Penal Code of California §192 (b).

Homicide – other types

The jury trying Johannes Mehserle was also given second-degree murder and voluntary manslaughter to consider. Briefly, here are the elements of those offenses in California (§§ 189-190):

Voluntary Manslaughter is the unlawful killing of a human being without malice upon a sudden quarrel or heat of passion. Punishable by 3-11 years in prison.

Second Degree Murder is defined by what it is NOT. In short, if there is intent but there is no deliberate and premeditated, committed in conjunction with a first degree felony (rape, arson, carjacking, kidnapping, burglary, etc), a drive-by shooting, or with an explosive, than it is 2nd Degree Murder. Punishable by a term of 15 years – life in prison.

Sentencing

• @Jonathan_Lowell tweets: 2-4 years for involuntary manslaughter? Fucking ridiculous.

Juries decide on the facts presented at trial by the state/prosecution and the defense. Then, if it’s a situation where the judge has discretion, she can take into account both the statutory requirements and extrinsic circumstances to determine the sentence for that particular defendant. The judge is limited, in a way, by the jury’s decision (unless their decision was tainted somehow or seeks to run around the actual charges). If they say involuntary manslaughter, the judge’s sentence must fit within the statutory range.

The sentence for any given crime is codified by state statute. In California, a conviction for involuntary manslaughter (a felony) is punishable by imprisonment in a state prison for 2, 3, or 4 years. The Penal Code of California §193 (b).

In addition to 2-4 range prescribed by the CA Legislature, the judge might consider mitigating circumstances including but not limited to: previously clean criminal record, a highly stressful situation, and reputation for good character.

In California, the judge can consider “enhancing” the sentence if a firearm was used as was in this case. It’s up to the defense to bring these facts to the judge’s attention. The state, however, will try to present aggravating factors that might elevate the sentence to its maximum. In some cases, the judge will hear from the victim’s family when deciding on a sentence.

I know folks are frustrated, sad, angry, pissed off and maybe even feeling a bit hopeless. This story has been told too many times with different protagonists and we know how it’s likely to end. I hope that with greater understanding of the issues at play – this is not just racism at play but how our laws operate and how Americans understand them – we’ll be able to take control to bring about real change.

Remember: Appeal and civil claims are still available.

Any of my fellow JDs or ESQs, if you see errors or would like to weigh in, you’re more than welcome!

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