Johannes Mehserle, the BART cop who killed Oscar Grant, claiming he meant to pull his Taser when he shot him instead as he was lying on the ground, handcuffed, surrounded by police officers, was sentenced.  According to the Los Angeles Times, Superior Court Judge Robert J. Perry realized that he wasn’t making any friends.

The judge finally issued an unusual apology, telling the courtroom that no one would be happy with his rulings.

“I well understand that my decision today will not be well-received by many people,” the judge said. “I’m sorry for that. But all I can say is I did my best.”

A curious mea culpa, given that his job was to follow the law and there should be no reason to apologize.  But his rulings indeed deserve more than the explanation that accompanied the sentence of two years imprisonment.

Los Angeles County Superior Court Judge Robert J. Perry said evidence in the racially charged case showed that the shooting was an accident caused when Johannes Mehserle mistakenly reached for a firearm instead of an electric Taser weapon he meant to use.

The former Bay Area Rapid Transit police officer faced up to 14 years in prison. But the judge sharply reduced the maximum possible sentence by dismissing a finding by jurors that Mehserle intentionally used a gun. Among the reasons Perry cited was that he failed to provide jurors with clear instructions on the gun allegation and that the evidence was insufficient to show that the officer used his firearm deliberately.

“The evidence that this was an accidental shooting and Mehserle did not intend to shoot Grant is simply overwhelming,” the judge said.

Here’s where the ruling and sentence get dicey.  Mehserle was convicted by the jury of involuntary manslaughter.  The key distinction lies in this part of the instruction:

An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.

The jury found that the evidence supported this, the lowest of available charges with which to convict Mehserle.  Ken at Popehat parses the various charges and their elements.  The judge, however, held that the evidence was insufficient.  For what isn’t exactly clear, based upon the report, but the court’s language, that this was an accidental shooting, that “the officer used his firearm deliberately,” creates the confusion. 

If Johannes Mehserle, poorly trained BART cop, strapping on a Taser  in whatever configuration was available that day, merely had a tragic accident, and the killing of Oscar Grant did not result from a willful act, but a horrible screw-up, then he’s committed no crime at all and should not be sentenced, whether to two years or two minutes. 

You can’t have it both ways.

The convoluted explanation in support of Mehserle’s accident, which blames the “hitch” on the claim that BART officers are handed Taser holsters in varying configurations, and may thus not realize in the heat of the moment that they are reaching to their left side rather than right for their “non-lethal” weapon, ignores one rather significant problem: Their handgun is in the exact same place as always.  The one thing a trained police officer should know is where he straps on his gun every shift.  In other words, if he grabs for a Taser, no matter where the Taser happens to be that particular day, he should know that it’s not in the spot where his firearm always is.

But the same new professionalism that is held up as an explanation for why we need not scrutinize police mistakes the way we did back in the bad old days gives way to the old saw that cops are only human.  Indeed they are, and humans with guns are supposed to not use them to unlawfully kill other humans.  “Oops” is too facile a defense.

In holding the evidence insufficient as a matter of law, and rejecting the jury’s verdict based upon his own deficient instruction, then what is the purpose of Judge Perry’s sentence?  He says that evidence that this was an accident was “simply overwhelming,” a bit of hyperbole from my remove, but nonetheless his conclusion.  So wish Mehserle well and send him on his shackleless way.  Sure, there would be protests, perhaps even riots in the streets of Los Angeles, but that’s not a judge’s concern.  If the defendant committed no crime, then the defendant deserves no sentence.

But Mehserle was sentenced.  He was sentenced to two years in prison.  And Oscar Grant is still dead.  And the judge says it was just an accident.

Sometimes people die as a result of an accident, and there is no crime to be charged, no criminal to be sentenced.  That’s a perfectly reasonable outcome when a death occurs by accident.  Tragic results do not mandate that a crime occurred.   So which is it?  Did Mehserle commit a crime or not?  If he did, then the sentence should be predicated upon the legitimate sentencing factors.  If he didn’t, then he should be allowed to go home. 

Judge Perry got one thing right.  Nobody is happy.  Worse still, nothing about this case makes any sense.

Addendum:  The New York Times report of the sentence provides a bit (but just a bit) more information:

In making his decision during the highly charged, 3½-hour hearing, Perry threw out a gun enhancement that could have added as much as 10 years in prison and said there was overwhelming evidence that it was an accidental shooting.

The significance is unclear, but the Bay Citizen offers some additional information.

The defense argued that jurors were not told that a gun enhancement could only be applied if they believed that Mehserle used the weapon with intent. Perry said he was troubled that jurors may have been confused and incorrectly applied that enhancement.

While still leaving much unexplained, this offers a little greater insight into the implications of Judge Perry’s ruling.  However, it leaves the big picture, how there can be an unlawful killing caused by a gun that is criminal, but that the use of the gun, and hence the killing, is purely accidental.