The Verdict's In--Let's Riot

Two things happened this past Thursday that were absolutely predictable. A not-too-bright and poorly-trained Bay Area Rapid Transit (BART) cop was convicted of involuntary manslaughter in the death of career lawbreaker Oscar Grant. And Grant's supporters rioted (allegedly because they thought the white cop, Johannes Mehserle, should have been convicted of murder in the shooting of black arrestee Grant).

I discussed the shooting multiple times in my San Francisco Diary. Mehserle's supporters argued that the shooting was an understandable and forgivable error committed during the heat of a racially-charged and obscenity-laced arrest. They further argued that Mehserle mistook his gun for his taser. Grant's supporters claim the shooting was cold-blooded murder by a racist cop. Mehserle's supporters wanted him to get a free pass in an avoidable death. Grant's supporters wanted nothing less than the death penalty. The jury quite reasonably found Mehserle guilty of involuntary manslaughter. First degree murder with special circumstances was never on the table, so there was never the possibility of the death penalty. But a riot is rarely very logical, and most often an excuse for further lawbreaking.

The options for the jury ranged from second degree murder to involuntary manslaughter, with voluntary manslaughter as another option. I won't plague you with esoteric discussions of the various degrees of homicide, but I will remind you that one of the options not specifically included in the charges was acquittal (complete exoneration). The jury was smart enough to figure out that "oops, I made a mistake" is not a sufficient defense in matters where a deadly weapon was used, even if by accident, by a police officer to kill a defendant who was in custody, fully-restrained, and unable to do any serious harm to the arresting officers. Negligent homicide and involuntary manslaughter are essentially indistinguishable, and after hearing all the evidence, the jury made its decision.

In my earlier posts, I pointed out that Mehserle was the perfect example of why glorified security guards should not suddenly be raised to the level of police officers just to make the security guards feel better about themselves. BART only recently had gotten the legislature to raise the status of their security forces to full-blown police officers. Well--you can call them the Supreme Judiciars for all I care, and it doesn't change the fact that those security guards have neither the training nor the experience of real police officers. Mehserle was a horrific situation waiting to happen.

Let's not forget that criminal matters require proof beyond a reasonable doubt. The jury found reasonable doubt that Mehserle intended to kill Grant, and that meant they could no longer consider second degree murder--a specific intent crime. That left them only with involuntary manslaughter or acquittal. However stupid, negligent or incomprehensible Mehserle's action was, the testimony, including videos from both sides, showed a mystified Mehserle recoiling in horror and confusion after the shooting.

Let's look at another issue. The defense was successful in arguing change of venue based on pretrial publicity. For those who don't know it, the case was removed to Los Angeles. The defense was looking for a fair and impartial jury in a neutral court, not for an acquittal-minded jury. If they had been looking for the latter, they could have found a better venue than the one that found four police officers guilty of violating Rodney King's civil rights after a state jury had cleared them of all criminal charges. The verdict of involuntary manslaughter was not the result of a jury composed largely of white law and order types who were looking to let one of their own get away with the killing of a black man.

And that allows me to segue into the comparisons being made by both sides between this case and the Rodney King case. Yes, there are some similarities. Black arrestee, white cops. But that's about it for the comparisons. Rodney King was not in custody, but was being placed under arrest and violently resisted. Oscar Grant also objected to being arrested, loudly and physically, but he was on the ground in full restraint when the shooting occurred. King was tased and billy-clubbed multiple times (and amazingly kept getting up and advancing on the police officers after being told "stay down, we don't want to hurt you)." Grant was shot in the back.

Under the rules of engagement at the time of the Rodney King arrest, after the police officers ordered him to put his hands in the air and come slowly toward them, the officers were justified in using deadly force when King instead advanced quickly toward them while reaching into the waist band of his pants. Still, the police did not use deadly force, restraining themselves from doing so under orders from their commander who was later one of the officers sent to prison for violating King's civil rights.

Police officers have been much restricted in their rules of engagement with persons who physically resist a lawful arrest since the King case. It isn't based so much on good police work or any kind of solid logic as it is on political correctness and fear of bad press. Oh, and fear of riots. But there's a big difference between tasing a very large man with a violent criminal record who had only recently been released from prison and who is advancing menacingly on the police, and the shooting death of a low-level, rather smallish career lawbreaker who was already fully restrained. The jury was able to figure that out, even if Mehserle's supporters couldn't.

The people who stirred up the crowds in Oakland after the verdict repeatedly used the word "murder" to describe the killing. A jury found otherwise. And it wasn't a Ku Klux Klan jury from the 60s. Among the speakers at the daytime rally claiming murder were the gussied-up and cleaned-up parents of the thug that was killed. They managed to raise a lowlife who was constantly in trouble with the law, but now blame white society for their son's death. Well, a white man did it, not white society. And a racially-mixed jury found him culpable. Justice was served. But the parents need expiation for their own failures, so they wanted revenge, not justice. And a huge portion of the crowd wanted something even simpler. They wanted an excuse to riot.

It was a lame excuse for rioting (I might even have understood a riot, if not approving of it, if the jury had acquitted Mehserle). But after the parents cleaned up their own history as parents, and the white leftists finished making their fine speeches about racial oppression and police brutality, they went home, idiotically sure that the protest had made its point and nothing further would occur.

The rioters fooled them again. As soon as dark began to fall, and the police presence lessened, the thugs and gangsters took over the night. Once again, the political principle of "no justice, no peace" was demonstrated by a romp through the business district resulting in smashed windows, small fires, and the disappearance of wide-screen TVs, jewelry, clothing, along with the entire inventory of expensive running-shoes from the local Foot Locker store.

I predicted the verdict months ago, even before the trial was moved to Los Angeles. I predicted that anything short of a murder conviction would result in riots in Oakland. Now let me give you one more prediction (I'm not as sure of this one, but I'm fairly comfortable with the logic). This riot was nothing like the mayhem that followed the Rodney King case, and not even as bad as the riots that followed the actual shooting of Oscar Grant. But now the case will return to Oakland for the sentencing phase. This will no longer be a long-distance pronouncement from the court. The judge must weigh facts in aggravation and facts in mitigation to come up with a sentence. And no matter how much he may find all aggravation and no mitigation (a very unlikely result), the California provision for involuntary manslaughter with no prior record is two to four years in state prison.

If the judge imposes the maximum penalty, it will still not be nearly enough for the rioters-in-waiting. By nightfall on the day of the sentencing, Oakland (and probably a few other Bay Area communities) will be under siege. And that won't be the end of it. Lawlessness doesn't exist solely on the mean streets of Oakland. It exists at the very highest levels of government.

If the Rodney King case proved nothing else, it proved that rioting is an effective way of nullifying jury verdicts and spurring the cowards and race-baiters into high gear. In the Grant case, the mere threat of riots has spurred the Justice Department into "looking into the matter." Mehserle hasn't even been sentenced yet, and still the same Department that dismissed all the New Black Panther voter-intimidation cases is considering how it can slap both the jury and the judge in the face for not drawing and quartering Mehserle. State verdicts be damned. The feds are on the case!

As so often happens, what seems to be perfectly legitimate legislation can be perverted into another excuse for the national government to usurp the power of the states. The law under which the Rodney King police officers were convicted, and which Mehserle is likely to face, was designed for very different times and very different situations. The civil rights concurrent federal jurisdiction laws were written originally and justifiably to overcome the effects of Ku Klux Klan and white supremacist murders in the South that went unpunished by all-white local juries. In order to avoid the double-jeopardy provisions of the Constitution, the prosecutions were for an entirely different class of crimes. You got away with murder, boys, but you're not going to escape serious federal prison time for the ultimate method of violating a black person's civil rights. You didn't get the death penalty that you so richly deserved, but we're going to send you to prison for most of the rest of your lives as a substitute.

On the plus side, racial relations were improving dramatically over the decades since the Ku Klux Klan cases. Southern juries are no longer all-white, and murderers are routinely convicted by local juries regardless of race. So in order to justify their existence, Justice Department political lawyers have taken those statutes and turned them into a bludgeon to beat down the police no matter how egregious the behavior of the black defendant. Eric Holder's Justice Department is now likely to carry the King case one step further by finding that a conviction is not enough, we need a really tough sentence as well. Racial relations have gone backwards under Barack Obama's stewardship, and this pandering to the lawless will set relations back even more.

The Ku Klux Klan cases, and the subsequent Rodney King case proved the old legal adage: Hard cases make bad law. It also proved that there's nothing like a good healthy riot to motivate the fearful and cowardly into perverting the rule of law to obtain a result more in keeping with the wishes of the mob.