by Thandisizwe Chimurenga
The fifth day of testimony in the murder trial of Johannes Mehserle resumes Thursday, June 17, after a state-mandated furlough day on Wednesday, June 16, with former BART Officer Anthony “Tony” Pirone scheduled to take the stand.
Pirone, the first officer to arrive on the Fruitvale BART Station platform the morning of Jan. 1, 2009, was fired by the agency in April 2010, based on recommendations from a private firm that had been hired to investigate Mehserle’s shooting of an unarmed and prone Oscar Grant.
Pirone’s appearance comes after expert testimony given on Tuesday, June 15, by three police training officers from BART and one from the Napa Valley College police academy that Mehserle attended.
Paul Slivinsky, Paul Garcia and Eugene Wong testified as to the safety features of BART standard-issue service weapons, orientation and policies iterated to new BART hires, and defensive tactics and the proper methods for searching and handcuffing.
David Clark testified as to the firearms training of cadets at the Napa academy, such as the proper way to grip, draw and fire their weapons. “It’s not a simple act to simply draw a gun from a holster,” he told the court.
Upon questioning by Deputy District Attorney David Stein and cross-examination by Michael Rains, the testimony of all four expert witnesses concurred that Mehserle’s actions were out of line with his training.
Since the trial began, Rains has maintained that the movements Mehserle made in the seconds leading up to the shooting of Grant were consistent with the movements he would use to pull his Taser and not his service weapon.
Mehserle’s weapon, Taser and the holster they were contained in have all been entered as evidence to the court. Some of the expert testimony from Garcia included his hands-on demonstration to the jury on how to grip and release a service weapon from the ALS holster, which stands for Automatic Locking System. Such a system is designed to keep the weapon from falling out accidentally or having someone grab the weapon if they are unfamiliar with that particular type of holster.
Mehserle is not the only former officer whose actions that morning have been described as being out of line.
All five of the previous week’s witnesses who video-recorded the events of Jan. 1, 2009, say they did so because of Pirone’s actions, which included cursing and an excessive use of force.
Immediately prior to the start of the trial, Rains had sought to have Pirone’s use of a racial slur excluded from the testimony he will be asked to give when he takes the stand. The judge denied that motion but both Rains and William Rapoport, Pirone’s attorney, say that Pirone was responding to being called the slur first by Grant.
Videos show contact being made by Pirone and Grant twice. Stein argues that Pirone struck Grant unjustifiably, while Rapoport and Rains say that Grant attempted to knee Pirone in the groin twice.
Videos of the interactions between Pirone and Grant also show Pirone stepping out of view of the camera, presumably to confer with the BART train operator. Once Pirone comes back into the frame, he is pointing towards Grant, giving the order for him to be arrested.
Although Pirone does not give the order to arrest at the exact point of the alleged assault, that decision might not necessarily be out of policy, according to Linton Johnson, BART’s chief communications officer. “Assault on a police officer is against the law. Police are to enforce the law. How they choose to do that is dependent on the circumstances they face at the time,” he said
While Johnson declined to comment specifically on Pirone’s actions, he did say that the agency wants its officers “to exercise their best judgment, and we provide them with the tools and the training to do that, and after Jan. 1  we have increased the number of tools and amount of training we give these officers so they can make the best choice possible when confronted with any situation.”
Sophina Mesa, fiancée of Oscar Grant, and Carlos Reyes, who was with Grant on the Fruitvale platform, concluded their testimony earlier Monday, June 14. Mesa stated that she called Grant from the street entrance to the Fruitvale Station after they became separated. She said Grant told her that he was being beaten by BART officers for no reason and quickly hung up the phone. Grant also snapped a photo of Mehserle standing in front of him with his Taser drawn around the same time.
Mesa, who occasionally wiped tears from her eyes, also testified that Grant had confided to her that he had previously been tased and that he said he “wouldn’t wish it on anyone.” Rains attempted to find out under what circumstances Grant had told Mesa that information, asking if she knew that he had been tased after disobeying commands to stop running from a San Leandro police officer and then being tased and kicked for not giving up his hands fast enough. Judge Perry inserted his own objection at this line of questioning and Rains moved on.
Stein’s examination of Reyes’ was short and his testimony appeared credible. Rains’ cross-examination, however, began Friday afternoon, June 11, and continued through Monday, with the majority of Reyes’ testimony appearing inconsistent, particularly when checked against his testimony with investigators from BART, the Alameda County DA’s office and investigators from the private firm that investigated the shooting. The majority of his answers consisted of “I don’t remember” or “I don’t recall.”
At some point during the lengthy cross-examination, which had begun Friday afternoon, June 11, and ended Monday, June 14, Reyes, who appeared emotional on the stand, admitted that he had lied to BART investigators while in custody at BART police headquarters. When queried by Stein as to the reason why, he stated he was scared because he “just saw [BART police] shoot someone he was close to for no reason.”
Three other witnesses also testified earlier in the week. Pam Caneva, Lydia Clay and Lynda Kiersted, who had been traveling together on BART from San Francisco towards Hayward, said they saw an “angry” and “aggressive” Tony Pirone yelling, cursing and using excessive force with Michael Greer moments before Grant was shot by Mehserle.
Caneva misidentified Mehserle in court and stated he was the officer who had initially removed Grant from the train. She stated that she saw Mehserle attempting to handcuff Grant and thought, “Wow, he must be strong,” in response to what she perceived as Mehserle’s difficulty getting Grant’s arm.
All three of the witnesses also said they contacted BART police officials after learning of Grant’s death on the news because they said they were “angry and upset” about the incident. “It didn’t have to happen,” said Clay.
Testimony on Monday, June 14, also included a description by Dr. Alden Harken, chief of surgery at Highland Hospital, of the institution’s attempts to save Grant’s life. As Grant’s mother Wanda Johnson wept, Hanken testified that Grant “oozed and bled from everything,” saying the doctors were unable to stop Grant’s internal bleeding from the bullet which entered just left of his spine in the lower back, traveling upward to the right and lodging just over his breastbone.
Thandisizwe Chimurenga is a community journalist and a founder and host of Some of Us Are Brave, a Black women’s public affairs show on KPFK-Pacifica Los Angeles. She has worked with the L.A. Watts Times newspaper, the KPFK Evening News and Free Speech Radio News. She is currently covering the trial of Johannes Mehserle, the killer of Oscar Grant, for the Bay View and several other Bay Area news organizations. She can be reached at email@example.com. Follow @OscarGrantTrial.