BART officer has yet to give account in shooting OAKLAND Delay in getting report worries lawyer for victim's family, who wants officer charged criminally

A copy of a portrait of Oscar Grant taken last month was on display as attorney John Burris, representing the family of Oscar Grant, slain by a BART police officer New Year's Day, held a press conference near his office in Oakland, Calif. on January 4, 2009. less A copy of a portrait of Oscar Grant taken last month was on display as attorney John Burris, representing the family of Oscar Grant, slain by a BART police officer New Year's Day, held a press conference near ... more Photo: Courtesy Of Johnson Family Photo: Courtesy Of Johnson Family Image 1 of / 9 Caption Close BART officer has yet to give account in shooting 1 / 9 Back to Gallery

Five days have passed since a BART police officer shot and killed an unarmed rider on a station platform, but the officer has not given a statement to investigators about what happened and the transit agency has apparently not forced him to do so.

The delay comes as witnesses emerge with their accounts of what happened, some with video footage of the incident recorded on cellular phones. The hold-up is one reason why BART officials - even in the face of public outcry - have said little publicly about the shooting, including whether they believe it was justified.

BART has not released the officer's name, but The Chronicle has learned that the officer is two-year BART police veteran Johannes Mehserle, who turned 27 on Monday and whose first child was born within a day or two of the shooting - an event that may be a contributing factor to why Mehserle has not yet explained the shooting to investigators.

Mehserle could not be reached for comment on Monday.

Officials have only said that Mehserle's gun discharged, killing 22-year-old Oscar Grant of Hayward. He had been detained and forced to lie chest down on the ground at Oakland's Fruitvale Station after 2 a.m. in the chaotic aftermath of a fight on BART on New Year's Day. BART has promised a thorough probe, and Alameda County prosecutors are investigating as well, as is standard in officer-involved shootings.

But the delay is troubling to John Burris, the Oakland attorney who is representing Grant's family and who plans to file a $25 million damage claim today against the transit agency, a legal precursor to a civil lawsuit. Burris is also calling for the officer to be charged criminally.

Burris, who has represented clients in more than a dozen officer-involved shootings, said he had never seen such a long delay before an officer makes a statement to investigators. He said it raises the possibility that the statement could be affected by the video footage and by loss of memory, among other things.

"It's pretty shocking to me," Burris said. "When you delay like this, it raises questions about the integrity of the investigation. It raises the question, 'What has BART been doing?' You want to prevent collusion. You want to prevent people from tailoring their statements to the evidence."

BART spokesman Linton Johnson said Monday that Mehserle had not yet given a statement, but did not provide further details. David E. Mastagni, an attorney for Mehserle, declined to comment on Monday.

Michael Rains, a Pleasant Hill attorney who has represented officers in use-of-force cases and taught courses on internal investigations, said the public should not read anything into the officer's motives without knowing exactly what happened on the platform and what efforts BART investigators and prosecutors have made to arrange or compel an interview.

Rains also said he did not believe Mehserle's statement would be tainted by a delay, even if he had seen video footage of the shooting.

However, Rains said police agencies typically move fast to probe officer-involved shootings that are generating controversy. Often, he said, an officer will be asked to give a statement on the same day as the shooting.

Officers, like anyone else, have a right to remain silent when questioned in connection with possible criminal charges. Rains said lawyers sometimes advise officers not to talk immediately due to their emotional state.

But police agencies can order an officer - under threat of firing - to speak to internal affairs investigators during a separate administrative probe. Those investigators must decide if the officer should be disciplined for breaking agency rules.

"Typically when you have something that is controversial, agencies are in a hurry to get the investigation done," Rains said. "They want to get some answers out there. They will usually rush into an administrative investigation."

Rains added that he and his clients had "walked out of an interview room with (criminal) detectives only to be greeted by internal affairs investigators."

Statements that officers make to internal affairs investigators cannot be used in criminal court, Rains said. However, it is possible that the statements may be shown to prosecutors, who could gain an advantage even if they can't directly use the statements.

"No one can fault the officer and say he's done something terrible because he invokes a constitutional right," Rains said. "If a law enforcement agency isn't compelling a statement right away, that's not the officer's fault either."

While BART has said little publicly, a source familiar with the investigation said the agency is looking into many leads, including the possibility that the officer had intended to fire his Taser stun gun instead of his gun.

Don Cameron, a former BART police sergeant and weapons expert who now teaches police officers about proper use of force, said Monday that he had watched footage of Grant's death and was convinced that the officer had meant to fire a Taser - a device that he said BART began using recently.

Footage taken from inside a BART car by a phone camera, first shown by KTVU television, shows officers forcing Grant to the ground and trying to hold him down. One officer appears to try to put cuffs on him before drawing his weapon and firing. In the video, Grant appears to struggle with the officers, though it is unclear exactly what he was doing.

Cameron said he made his conclusion based in part on the officer's stance, and the fact that a second officer moved away from Grant just before he was shot, perhaps trying to avoid a second-hand shock.

"If someone was actively resisting, which it appeared this guy was, the device to use would be the Taser, to overcome his resistance," Cameron said. "The Taser is a great controlling device. But if you grab the wrong device, you kill somebody."