As expected, ex-transit officer Johannes Mehserle, 27, is claiming that he shot Oscar Grant by mistake in the infamous video from the BART station in Oakland, California. He insists that he thought that his gun was his taser when he shot Grant in the back.

This was the only practical defense that Mehserle could advance beyond insanity (which would not have been particularly viable). In fact, such cases have occurred before in California. As discussed here, Madera officer Marcy Noriega in 2002 sought a man who was handcuffed and confined in the back of a squad car. Twenty-four-year-old Everardo Torres was allegedly trying kick the windows out so Noriega grabbed what she thought was her taser and shot him in the chest. She faced no charges.

Another such incident occurred in Virginia when Frederick P. Henry was fleeing arrest and Somerset County Deputy Sheriff Robert Purnell fired what he allegedly thought was his taser. It turned out to be his Glock .40-caliber handgun. The United States Court of Appeals for the Fourth Circuit ruled that a trial was appropriate, though the official could argue mistaken use of the weapon as a defense.

It will be interesting if Mehserle’s taser was a Taser M26. The Torres family sued the manufacturer for making the taser resemble a real gun under a product liability theory. It was thrown out by the court.

The defense in Mehserle could be strengthened by the casual appearance of the officer in shooting Grant. His counsel is likely to argue that, unless Mehserle was insane, he could not realistically hope to execute a man in broad daylight, even without video cameras. One interesting question will be whether the jury will be able to view a new tape showing a second officer striking a man before the shooting without provocation, here. If the man was Grant, it would presumably be relevant and material. It would, however, likely work against the defense (though, if it was Grant being struck, it could be cited as proof that he was unruly). It will also be interesting if the defense seeks to call officers like Noriega to support its taser confusion argument.

I was a bit surprised by Judge Morris Jacobson statements during the bail hearing where he granted bail but expressed his skepticism that Mehserle appeared willing to “make up something that’s not true” to escape responsibility. That seems a pretty incautious and biased statement from a judge in a pre-trial proceeding.

For the latest story, click here.