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Tuesday, February 17, 2009

Video proof: Grant was in the process of swinging his own arm up onto his own back when he was shot

To justify their arrest warrant for BART Officer Johannes Mehserle, Oakland police claimed that Oscar Grant's hands were "restrained" behind his back when Mehserle shot him. Alameda District Attorney was only slightly more circumspect, asserting in his indictment that:
After careful analysis of the video, it is clear that both of Grant's hands were behind his back, a position hands are commonly placed in by police officers in order to handcuff individuals, when the shot was fired into his body.
On the contrary, however, frame by frame analysis of the shooting video proves that Grant's hands were NOT in a restraint position. How did they end up there immediately after the shooting? Grant himself was in the act of swinging his own left arm up behind his own back when Mehserle fired.

Start with the following frame grab (37;05 on KTVU's highlighted video), one half second before Mehserle shot Grant:

Location of Grant's Pirone's and Mehserle's hands at 37;05
Officer Pirone, in the foreground, has just gotten his right knee onto Mr. Grant's neck or shoulder. Pirone's left hand (circled in green) is holding Grant's head down, while his right hand has just gotten hold of Grant's right hand atop Grant's back. Officer Mehserle is standing semi-erect at Mr. Grant's feet. Mehserle's right hand, extended down towards Grant's back, holds his pistol.

From this starting point, the following animation gives a frame by frame look at the next 12/15ths of a second (1/15th of a second per frame, slowed to 1/2 second per frame). The first thing you see is Officer Pirone letting go of Mr. Grant's right hand. Watch the path of Pirone's hand as he pulls it away. Just after Pirone's hand disappears behind his body, Grant's arm appears from roughly the same spot. Grant moves his own arm out and up, then around onto his own back. The red circle highlights the muzzle blast in the frame where the muzzle blast first appears:

Fatal second, animation

Notice the timing. Grant's arm is in mid-swing, still in the air above his back, at the moment when Mehserle's fires. Grant, mortally wounded, then finishes pulling his arm up behind his own back. Here is a frame grab of the fatal instant (at 37;17), when Mehserle's muzzle blast first appears:

Moment of shooting, animated 37;17
Grant is about half way through swinging his left arm (circled in blue) around behind his back.

Why the sudden compliance from Grant, after 30 seconds of constant struggle to keep his arms away from the officers? In his statement to investigators, Officer Pirone says Mehserle told him he was going to tase Grant, and issued a warning to get clear. Grant would have heard this too. When he felt Pirone back off, it seems he swung his left arm onto his back in a last ditch effort to avoid getting tased. That left arm had never been under either officer's control.

Mehserle did briefly get control of Grant's right arm, just a few seconds before the shooting. He immediately used this control of Grant's right hand as an opportunity to start reaching for his gun/Taser, which he had first tried to access about 20 seconds earlier (at 14;13). While fumbling for his gun (an indication of taser confusion), Mehserle lets go of Grant's left hand, which Pirone then snatches up (the position at the beginning of the above animation).

A low-tech lynching

The Oakland Police investigators probably saw that Grant’s arms were tucked behind his back instants after the shooting and just assumed, without looking carefully, that they must have been there before the shooting too. This poor video analysis is excusable. I had to look frame by frame, specifically focused on the placement of everyone’s hands, before I saw the barely visible outline of Grant’s arm first shoot out towards his back at 37;15 (just one frame, or 1/15th of a second, before Mehserle’s gun went off). What is not excusable is the charges brought by Alameda District Attorney Tom Orloff.

Mehserle's motion for bail includes statements of the other officers at the scene, handed over to Mehserle during discovery. Officer Pirone's statement reports clear warning from Mehserle before the shooting that he was going to tase Mr. Grant:

Mehserle's bail motion, Pirone's statement
Screenshot of Pirone's statement, cited on p. 9 of Mehserle's bail motion.

Together with Mehserle's evident surprise when his gun went off, this makes Taser-confusion by far the most likely explanation for the shooting. That the shooting was an accident is not just a reasonable possibility. It is almost a certainty, making it grossly irresponsible for Alameda District Attorney Tom Orloff to file ANY charges against Mehserle, never mind murder charges.

There is no way that an honest jury could fail to find boatloads of reasonable doubt that the shooting was on purpose (Orloff's position). On the other hand, there is a very high risk of empanelling Alameda County jurors who believe, as most of Oakland does, that racial justice means any white accused of committing a crime against any black must be found guilty.

Orloff is fully aware of this local mind-set. Oakland streets are full of rioters demanding this outcome, and the so-called reasonable voices are not calling for the rioters to wait for the facts, but are calling for them to trust the system to punish Mehserle. Orloff knows that the facts cannot support conviction, and is just throwing Mehserle to the dogs. This is a purely political prosecution, a race-based lynching, perpetrated by the STATE. It is EVIL.

Given video falsification of his primary grounds for charging Mehserle with murder (that Grant's hands were in a restraint position when Mehserle shot him), District Attorney Orloff ought to withdraw charges. Here is a second chance for Orloff to do the right thing. Will he? It seems unlikely, when he was not interested in doing the right thing before.

The bail judge's concern about "inconsistencies"

Judge Morris Jacobson explained Mehserle's extraordinarily high bail ($3 million) by saying there were inconsistencies in Mehserle's statements. The obvious inconsistency is between his statement to Pirone about not being able to get control of Grant's hands, vs. the video evidence that Mehserle DID get control of Grant's hands. Close examination shows that they only got control of one hand--Jacobson is probably assuming, along with everyone else, that they got control of both--but either way, this is a significant inconsistency, and it comes from ALL the witnesses. Mehserle and Pirone and another witness at the scene all assert that no one ever got control of either of Grant's hands.

The confusion of Mehserle and Pirone on this point is easy enough to understand. They fought to for control of Grant's hands for about 30 seconds without success, then as soon as Mehserle got Grant's right hand, he transferred it to his left and started fumbling to unholster his gun. That fumbling lasted a full four seconds, and would have drawn Mehserle's urgent attention. His main recollection of those seconds must be of trying to get his damned gun/Taser to come free. It is not surprising at all that he does not remember catching and letting go of Grant's hand, or seeing Pirone take it up again. The video, however, shows this sequence clearly. Here are the two seconds before the above animation. Mehserle drops Grant's right hand, then Pirone grabs for it just a second before stepping away:

The penultimate 2 seconds, from 35;05 to 37;03
From 35;05 to 37;05 in KTVU highlighted video. At the beginning of this sequence, Mehserle has had Grant's right hand for about 3 seconds and has been fumbling for his gun for about 2.5 seconds. At 35;13 (the 4th frame) you can see Mehserle let go of Grant's right hand, which drops down Grant's back a bit, but does not fall to the ground. A second later (15 frames) Mehserle finally gets his gun unholstered, just as Pirone is getting hold of Grant's right hand. Mehserle starts to stand, and the fatal instant is a half second away.

None of this is at all damaging to Mehserle's defense. He first tried to access his Taser near the beginning of the struggle (at 14;13), after first failing to dig Grant's arms out from under his body. This is presumably when Pirone heard Mehserle say:
I'm going to tase him, I'm going to tase him. I can't get his arms. He won't give me his arms. His hands are going for his waistband.
Mehserle fought for Grant's arms for 20 more seconds, all the while looking for an opportunity to tase Grant, who he thought was going for a gun. Of course when he finally got one of Grant's hands and had an opportunity to go for his Taser, that is what he did.

There is absolutely nothing wrong with Mehserle trying to Taser Grant at this point. Even after Mehserle got Grant's right hand, Grant kept fighting with Pirone. Just before the above animation (at 34 seconds) Grant briefly managed to buck Pirone off of him, so that Pirone had to switch which knee he had on top of Grant, and when Mehserle was first getting control of Grant's right hand (at 32), Grant can be seen to kick Mehserle with his heel. This guy was FIGHTING, until the last second when he thought he was about to get tased, then he suddenly pulled his own arm up onto his back, but not before Mehserle had already pulled the trigger on what tragically turned out to be his gun.

Mehserle's lawyers need to know that their man DID have brief control of Oscar Grant's right hand

On the basis of the evidence, Mehserle's innocence is 99% certain, while the "beyond reasonable doubt" standard of guilt is sometimes described as translating into something like a 90% certainty of guilt. There is no way Mehserle should be convicted of ANYTHING for what was almost certainly an accidental shooting, prompted not by any recklessness on Mehserle's part, but by Grant's reckless resistance to arrest.

Still, as the Judge's suspiciousness shows, perceptions of guilt and innocence change dramatically if a defendant has inconsistencies or errors in his account of what happened. If Mehserle claims he never got hold of Grant's hands, and the prosecution shows video proof that Mehserle DID get hold of Grant's right hand, an innocent man could well be convicted of murder. If they haven't already, it is URGENT that Mehserle's lawyers understand and incorporate this information. They are up against some very bad people who are more than willing to railroad an innocent man. Mehserle and Pirone have GOT to get this right.

One more indication of Taser confusion: Mehserle's recoiling gun collides with his left hand, which is not yet in a support position when Mehserle fires

Take a look at Mehserle’s left hand in the first animation:

Fatal second, animation

At the start of this animation, Mehserle has already transferred control of Mr. Grant’s right arm over to Officer Pirone, leaving Mehserle's left hand free. You can see Mehserle starting to move his left hand towards his right hand, which is holding his pistol, but notice that he fires the pistol before his left hand gets into a supporting position.

When the gun goes off, it recoils. That is why the slightly reddish image of the muzzle blast (at 37;17) appears in almost the exact position where Mehserle’s right hand had been. The gun rocks up and back, so that to the camera, the muzzle now appears in the position of the hand. You can verify this by the angle of Mehserle's elbow, which bends up in frames 37;17-21. (You can also verify the timing of the discharge by listening to the original video with the audio turned on. The bang comes when Grant’s arm is in the middle of swinging up onto his back, indicating that the reddish glow is indeed the muzzle blast.)

When Mehserle fires, the recoil causes his gun to collide with his approaching left hand, which Mehserle immediately jerks upward toward his left shoulder (visible in the slowed down animation). As someone who occasionally finds time to practice shooting, I cannot imagine anyone bringing their support hand in towards their pistol but firing before the support hand is in a support position. The fact of recoil means you either fire from a two hand hold or from a one hand hold, never while in the act of reaching for a two hand hold.

If Mehserle realized he was shooting his gun, he would have shot with two hands or with one, not with his left hand about to come in. That would be the same for a justified shooting, or a murder. If there was intent to shoot a gun, that left hand would not have been in a position to be struck by the gun's recoil.

With a Taser, in contrast, there is no recoil. If Mehserle thought he was firing his Taser he would not have been worried about the position of his left hand, and might well have fired while bringing his left hand in. On this point as on all the others, Taser-confusion makes sense of the facts, while the prosecution's theory of an intentional shooting does not.

UPDATE: In a comment on the cross-post at Flopping Aces, The Bronze offers a better surmise about what the bail judge saw as "conflicting statements" from Mehserle. Maybe the judge had in mind Mehrserle's statement to Pirone immediately after firing: “I thought he was going for a gun.” That statement sounds like a justification for shooting Grant, not for Tasing him, so it seems to be in conflict with Mehserle's Taser-confusion defense.

Bronze also offers a plausible explanation for the "I thought he had a gun" statement: that realizing he had shot Grant instead of Tased him, Mehserle might have tried to rationalize the shooting. As Bronze put it:

"I think that Mehserle fully intended to tase Grant, but drew his pistol instead. Then, in a moment of sheer panic (realizing that he shot someone) told Pirone ' thought he was going for a gun' in order to justify shooting him." This could well be what happened, but I can also think of another possible explanation too.

Just before Mehserle Tases him, Grant goes into last-ditch compliance mode, presumably in a bid to avoid getting Tased. If Mehserle did think he had drawn his Taser, he might have had a thought at that moment that maybe he should forbear. He and officer Pirone still didn't have both of Grant's hands, but Grant was suddenly not struggling anymore, so maybe they could just cuff him without further ado.

Then suddenly Grant's left arm comes flying up towards Mehserle as Grant swings it around onto his own back. This sudden arm movement is also visible in the other cell phone video, from a little further right, and in that one Grant can be seen to swing the entire left side of his body up off the ground as he swings his left arm up onto his back. To Mehserle, who had been worried that Grant was going for a gun, this arm and body movement could have looked like Grant might be swinging a gun up towards him.

That would stop any thoughts Mehserle might have had about holding off on the Taser, shocking Mehserle into giving Grant an immediate Taser blast. This would explain why Mehserle told Pirone immediately after that he thought Grant "was going for a gun." We expect him to say that he thought he was using his Taser. But if he just thought he saw Grant swinging a possible gun up towards him, the adrenaline surge from such a sight would still be ful in his mind. That then becomes the natural thing to relate to his fellow officer, explaining why he pulled the trigger on his Taser.

The Taser turning out to be his gun is another shock, but maybe not as big as the shock of thinking he saw a gun coming at him. Perhaps a fuller account will come out at trial. What does not seem to fit the facts is any scenario in which Mehserle knew he was pulling his gun, since he told Pirone to get clear as if he was going to fire his Taser.

It certainly would be unfortunate if in a moment of panic Mehserle did what Bronze suggests and, even though he did not mean to fire his gun, offered a rationalization that makes it sound like he did. We all have some instinctive tendency to adopt rationalizations that make our actions look a little wiser than they really were. It's just spin. It shouldn't cost anyone their liberty.

I should also mention my first answer to Bronze’s suggstion that Mehserle might in a panic have tried to rationalize the shooting:
Why didn’t he say “I thought I was firing my Taser” instead of “I thought he had a gun”? The obvious explanation is that Mehserle had already told Pirone that he thought he was firing his Taser. He said he was going to fire his Taser, then just before firing he said: “Tony, Tony, get away, back up, back up.”

It is natural that in the aftermath he would want to go on and explain his motivation: why he had had felt such fear and urgency, as Pirone describes hearing in Mehserle’s remarks during the struggle.
It was right at the beginning of the struggle, before he went face down on the floor, that Grant first looks like he is going for his waistband. Thus Mehserle would have been struggling with Grant for almost 30 seconds, thinking that Grant could be going for a gun. Of course that was on his mind afterwards, and there is nothing wrong with saying it.

Thinking that Grant was going for a gun does not mean that Mehserle intended to shoot him. Mehserle had already stated his planned response to thinking that Grant was going for his waistband: that he was going to Tase him.

One might counter that Mehserle SHOULD have drawn his gun if he thought Grant was going for a gun, but that is premature. Mehserle did not know what Grant was doing, making Tasing the appropriate course, and the evidence says that this is what he intended to do.

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