BY THANDISIZWE CHIMURENGA

The May 7 hearing for Johannes Mehserle, the former transit cop who fatally shot Oscar Grant on New Year’s Day of 2009, settled several key issues prior to the beginning of the trial scheduled for June. The waters have been somewhat muddied, however, due to much of the media coverage surrounding this case, both before and after the May 7 hearing.

Firstly, did Mehserle “shoot” and “kill” Grant?

Mehserle did, in fact, shoot and kill Grant. That is not a disputable fact; it is completely accurate to state such.

Every video of the incident that has surfaced thus far shows the indisputable fact that Mehserle shot Grant.

Mehserle’s defense is that he meant to pull his Taser and not his gun when he shot Grant, but he does not deny shooting him.

Michael Rains, Mehserle’s defense attorney, stated in his proposed instructional brief to the court that, “There is no doubt that Mehserle fired the shot that killed Grant …”

The only doubt seems to exist in the many media reports of the case.

These many reports, possibly due to confusion of legal terminology and/or laws concerning libel, or in furtherance of society’s leanings to give cops the benefit of the doubt, state that Mehserle “allegedly shot.”

But Mehserle did indeed shoot Grant in the back as Grant lay on his stomach on an Oakland train station platform.

Mehserle’s shooting and killing of Grant is not an allegation; it is an indisputable fact.

What is disputed is whether Mehserle did it on purpose or not. If he did intentionally shoot Grant, that would be murder.

Mehserle was indicted for murder June 4, 2009, in Alameda County, Calif., with Superior Court Judge Don Clay ruling that Mehserle should stand trial for murder.

The purpose of the trial, scheduled to begin with jury selection on June 1, is to determine if Mehserle is indeed guilty of murder. According to the Judicial Council of California Criminal Jury Instructions, effective Aug. 14, 2009:

“Homicide is the killing of one human being by another. Murder and manslaughter are type[s] of homicide … If there is no legally valid excuse or justification, the killing is unlawful and, depending on the circumstances, the person is guilty of either murder or manslaughter.”

There are “degrees” to murder, namely first or second degree. To be convicted of murder in the first degree, “malice aforethought” must be present.

“Malice aforethought” is defined by West’s Encyclopedia of American Law as, “A predetermination to commit an act without legal justification or excuse; a malicious design to injure. An intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life; but malice aforethought does not necessarily imply any ill will, spite or hatred towards the individual killed.”

This is what the jury will be deciding in June, and until it does, this is what the media should be careful in reporting.

Thandisizwe Chimurenga is a freelance writer in Los Angeles. She can be reached through her Web site, thandisizwe.net.