Ex-BART cop's lawyers press case against D.A. BART POLICE SHOOTING

Johannes Mehserle, right, appears in the East Fork Justice Court on Wednesday, Jan. 14, 2009, in Minden, Nev. Mehserle is being held on charges related to the New Year's day shooting of an unarmed man on an Oakland, Calif., train platform. Mehserle, 27, waived extradition to California early Wednesday during a brief court appearance in Minden, Nev., and was being held without bail on a warrant charging homicide. Douglas County Sheriff's Deputy Ron Mills is at left. less Johannes Mehserle, right, appears in the East Fork Justice Court on Wednesday, Jan. 14, 2009, in Minden, Nev. Mehserle is being held on charges related to the New Year's day shooting of an unarmed man on an ... more Photo: Cathleen Allison, AP Photo: Cathleen Allison, AP Image 1 of / 3 Caption Close Ex-BART cop's lawyers press case against D.A. 1 / 3 Back to Gallery

Lawyers for a former BART police officer charged with murdering an unarmed passenger pressed their case to disqualify the district attorney's office Wednesday, after the state acknowledged that two Oakland policemen had tried to question the officer without a lawyer but argued it was not illegal.

The volley of legal filings came as both sides prepared for Monday's preliminary hearing in Alameda County Superior Court to determine whether there is enough evidence to try Johannes Mehserle for murder in the Jan. 1 shooting death of Oscar Grant.

Grant, 22, of Hayward, was shot in the back while lying on the platform at BART's Fruitvale Station in Oakland, where officers were holding him after an early morning fight on a train. Mehserle's lawyers say the 27-year-old officer thought he was firing his Taser stun gun. He is free on $3 million bail.

A hearing is also scheduled Monday on a request by Mehserle's lawyers to remove District Attorney Tom Orloff and his office from the case because of Orloff's attempt to interrogate Mehserle in jail. If Orloff is disqualified, state Attorney General Jerry Brown's office would take over the prosecution.

Mehserle was charged with murder Jan. 13 and arrested later that day in Douglas County, Nev. According to police records cited by Mehserle's lawyer, Michael Rains, Orloff sent two Oakland officers to Nevada to arrest and question Mehserle. When they were unable to locate him, attorney Christopher Miller, who was then representing him, arranged Mehserle's surrender, Rains said.

Miller then visited Mehserle in jail. After he left, the two police officers arrived, read Mehserle his rights, and departed when he invoked his right to remain silent, the officers' notes said.

In a motion filed April 28, Rains argued that Orloff had knowingly violated Mehserle's right to his lawyer's presence during interrogation.

The U.S. Supreme Court ruled in 1964 that once a suspect is charged and has a lawyer, prosecutors and their representatives can't question the suspect outside the lawyer's presence.

Defendants usually rely on that ruling to exclude evidence of any statements they made. In this case, Rains argued, Orloff's actions amounted to a criminal conspiracy as well as a violation of State Bar ethical standards.

Orloff has declined comment, citing a judge's gag order on lawyers in the case, and is relying on arguments submitted this week by Brown's office opposing disqualification.

Gerald Engler, a senior assistant attorney general, agreed with Rains' version of the facts but said the prosecutor had acted legally.

"It does not violate the Constitution to ask a charged defendant if he would like to talk to the police," as long as the officers tell him he has the right to a lawyer, Engler wrote.

He acknowledged that the Supreme Court has forbidden such contact after the prosecutor knows a defendant has a lawyer. But in this case, Engler said, although Miller had repeatedly told Orloff that he represented Mehserle, the prosecutor didn't have to take the lawyer's word for it.

Rains derided that explanation in papers filed Wednesday. He said prosecutors and police knew from the day of the shooting that Mehserle had a lawyer and was unwilling to talk to investigators.

In his eagerness to get a confession, Rains wrote, "Mr. Orloff has proven time and again that he is more concerned with winning than with doing justice, more focused on appeasing the public than on conducting this prosecution with the highest degree of impartiality and integrity."