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Alameda DA Reopens Investigation Into Oscar Grant Killing, Nearly 12 Years Later

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Protesters carry signs demanding justice for 22-year-old Oscar Grant III during a demonstration at Oakland City Hall on Jan. 14, 2009. Grant was shot in the back by then-BART police officer Johannes Mehserle as Grant lay face down on the Fruitvale Station platform on New Year's Day, 2009.  (Justin Sullivan/Getty Images)

The Alameda County District Attorney's Office is reopening a criminal investigation into the slaying of Oscar Grant, nearly 12 years after a BART police officer fatally shot the 22-year-old as he lay face down on the Fruitvale Station platform.

In a written statement released Monday afternoon, District Attorney Nancy O'Malley said she's assigned "a team of lawyers to look back into the circumstances that caused the death of Oscar Grant."

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Although previous Alameda County District Attorney Tom Orloff initially charged former BART officer Johannes Mehserle with murder, O'Malley took over and oversaw the prosecution.

O'Malley noted that the court granted a defense request to move Mehserle's trial to Los Angeles.

"Unfortunately, the Los Angeles jury only found Officer Mehserle guilty of Involuntary Manslaughter," O'Malley wrote. "We are re-opening our investigation."

Mehserle was convicted in 2010 and sentenced to a two-year prison term, of which he served 11 months. He was released in June 2011.

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New charges against Mehserle face high legal hurdles, according to Stanford law professor Robert Weisberg.

"There are two obstacles here," Weisberg said. "One would be statutes of limitations and the other would be double jeopardy."

Mehserle's previous conviction, Weisberg said, precludes a new prosecution based on a criminal homicide charge — from murder to involuntary manslaughter. The former officer could face new charges for a non-homicide offense, but only if the statute of limitations hasn't lapsed.

But other officers on the BART platform that night have different circumstances. Double jeopardy wouldn't apply, because no one besides Mehserle was previously charged in Grant's death.

"The fact that Mehserle's case may be over doesn't in any way bar them (other officers) from being charged," Weisberg said. "And for all we know, they may have had different degrees of criminal intent."

An internal investigation commissioned by BART, and hidden from public view until May of last year, was heavily critical of officer Anthony Pirone, who was found to have "started a cascade of events that ultimately led to the shooting."

Witnesses described Pirone as the "crazy cop" who was "very agitated," shouting orders speckled with profanity as he rushed onto the platform in response to reports of a fight on the train.

The investigation found that Grant didn't fight back when Pirone rushed over to him, shoved him against a wall and punched him in the head.

After Grant sat down, Pirone kneed him in the face, a strike the internal investigation found to be "punitive" and unjustified.

Pirone used a racial epithet during a back-and-forth with Grant, reportedly repeating the words "bitch-ass n----."

The former officer continued to struggle with Grant and was kneeling on the back of Grant's head and neck until shortly before Mehserle stood up, drew his gun and fired a single round into Grant's back.

The investigation also found that Pirone lied repeatedly about the events that led to Grant's death.

The investigation concluded:

"Pirone’s repeated, unreasonable and unnecessary use of force; his willful and reckless conduct that endangered the safety of the public and his fellow officers; his failure to be forthcoming about the true events; his changing and shifting stories; his manifest lack of veracity; his professionally inappropriate demeanor; his use of a racially offensive word; and his excessive use of expletives, warrant a recommendation that Officer Pirone be terminated from his employment with BART."

BART subsequently fired Pirone, and an arbitrator upheld his termination in 2014.

Grant's family and their supporters have recently renewed calls for another prosecution in the historic case, focusing largely on Pirone.

"That report states that Tony Pirone created the chaotic atmosphere on that platform," Cephus 'Uncle Bobby X' Johnson, Grant's uncle, said in an interview Monday. "It cites everything that he did that created the volatile situation that caused the murder of Oscar Grant."

Johnson said Pirone should be charged under the felony murder rule, which allows prosecutors to charge accomplices to felony crimes with murder, even if they lack the intentional motivation to kill that's required for typical murder charges.

"He was an accessory to that murder because he was the one that created that whole atmosphere," Johnson said.

Weisberg said a charge under the so-called felony murder rule is unlikely. But, he said, it's entirely possible that Pirone could face some kind of murder charge if he acted in a way that he knew could lead to Grant's death.

"There's nothing unusual in criminal law about essentially accomplices being prosecuted," Weisberg said. "The odd thing here is, of course, the accomplices if that's what they are, being prosecuted so many years after the case ended for the principal."

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