The family of Oscar Grant and the Justice for Oscar Grant Coalition are on a drive to get Alameda County District Attorney Nancy O’Malley to reopen the case and file felony murder charges against former Bay Area Rapid Transit (BART) Officer Anthony “Tony” Pirone for his alleged role in the death of the young, Black man on the Fruitvale station platform in Oakland, Calif.
The Justice for Oscar Grant Coalition has hired a forensic specialist to evaluate the pathology report and review remains to determine whether the initial autopsy was inadequate or unfairly misrepresented what really happened, according to family attorney John Burris. The January 1, 2009, slaying of Oscar Grant still resonates with his family, friends and the Black community.
“Twelve years ago, feels like today that my son was killed. The pain that my son, my family, and the community continues to feel has not changed,” Reverend Wanda Johnson, Oscar’s mother, told The Final Call by phone.
“We are continually crying a divine cry for justice. The wheels of justice have been turning, and yet, there are so many who have been killed by police, and the officers have not been held accountable,” she stated.
Responding to reports of an alleged fight on a subway train, cops apprehended Oscar and others, forcing them onto a train platform. Officer Anthony Pirone kneed Oscar in the head and made him lie face down. Then transit officer Johannes Mehserle joined officer Pirone in holding Oscar down.
With Oscar under his control, Mr. Mehserle drew his gun and shot Oscar in the back. Oscar was unarmed. He was pronounced dead later at Highland Hospital in Oakland. The shooting was captured on cell phone video and cameras and sparked nationwide outrage. The film “Fruitvale Station” is based on the story of Oscar Grant.
Rev. Johnson wants Mr. Pirone charged and convicted for his actions and said he should never have been let off the hook when her son was killed.
In June 2010, former BART officer Mehserle was convicted of involuntary manslaughter with a gun enhancement charge, which would have meant a 12-14 year prison sentence. Judge Robert Perry overruled the jury’s verdict and Mr. Mehserle served just 11 months in L.A. County Jail. Mr. Pirone was fired in 2010.
The fight continues
District Attorney O’Malley reopened the investigation after meetings with Oscar’s family members and the coalition, which includes three civil rights attorneys. But right before a third meeting, she announced she would not file any charges.
Mr. Pirone can be guilty of murder only if he personally killed Mr. Grant, or if he aided and abetted the actual killer, and there is no evidence that he did so, argued District Attorney O’Malley. She cited an initial autopsy ruling the gunshot wound inflicted by Mr. Mehserle as the cause of the death. “We condemn Pirone’s conduct, but we cannot charge him with murder or any other crime,” she said.
That information and decision was not revealed to Oscar’s family ahead of the third meeting where they were prepared to present their case to Ms. O’Malley, explained Cephus “Uncle Bobby” X Johnson, Oscar’s uncle. “She stated that the autopsy report that she has states that Oscar suffered only superficial wounds, and there was no contusion, no brain damage, no cracked, fractured face. There was no this, no that, and based on their conclusions there could be no charges filed,” said Mr. Johnson.
“She ultimately said that she was not going to prosecute because the statute of limitations had run on most of the assault charges, and so we thought that the case really wasn’t at this stage about the assault charges,” said Atty. Burris.
“It was a question about whether this is a felony murder, and that is that he had been killed unlawfully by Mehserle and that his (Off. Pirone’s) contribution to that was he not only aided and abetted, but he was part of the overall effort to commit the homicide and so that’s felony murder,” Atty. Burris told The Final Call.
The Grant family and the coalition heavily disputed the decision and D.A. O’Malley said if the family has evidence that will support a charging of felony murder, they could bring it to her and she would strongly consider it, according to Atty. Burris.
“Where it is now is that we have made arguments to the effect that we think that the way that he was assaulted was either like torture or mayhem or an attempt to commit great bodily injury. Because he did have a lot of injuries on him that might be consistent with great bodily injury or assaultive conduct,” stated Atty. Burris.
The coalition hired forensic pathologist and neuropathologist Dr. Bennett Omalu to conduct an independent autopsy, said Atty. Burris. Also, said Atty. Burris, other efforts to bolster the case and see if murder charges can be brought are underway.
Ms. O’Malley based her decision on trial transcripts, incident videos, statements from witnesses, and other legal research, according to her Jan. 7 report. However, her decision did not include newly revealed evidence contained in an independent report by Meyers Nave law firm dated July 31, 2009 and commissioned by BART, argued the Justice for Oscar Grant Coalition.
“Meyers Nave made some conclusions that Pirone should have been charged. Now, they didn’t say murder, but they said he should have been charged with all those batteries that he conducted against these guys,” stated Atty. Burris.
Meyers Nave found Mr. Pirone used force against Oscar as a first resort and even then, it wasn’t for any purposes recognized by law. The force did not appear provoked, reasonable, justifiable, or excusable, concluded investigators.
“That’s where we are today. But, I feel that we’re dealing with a system that is still, no matter what, even with the blatant evidence that we see, will search for some loophole to justify not filing charges of felony murder against Tony Pirone,” argued Atty. Burris.
Mr. Johnson said he’s not holding his breath but is “cautiously optimistic.” “I’ve learned over the years that this system will pull a number of tricks out of a bag to delay time, to cause confusion, or even come up with a reason to justify why they can’t,” stated Mr. Johnson.
Until SB 1421 passed in 2018, the evidence in the Meyers Nave report was hidden, noted Mr. Johnson. The report was released on May 1, 2019, resulting from the police transparency bill introduced by state Sen. Nancy Skinner (D).
Mr. Johnson and his wife, Beatrice X, worked with state Sen. Skinner and others to pass the legislation through California Families United 4 Justice, a campaign of their Love Not Blood Campaign organization which works to support families impacted by police and other violence.
“It has an impact, though we haven’t gotten every piece of the (Meyers Nave) document. That’s why I’m working with Sen. Skinner now to amend SB 1421, so that these denials can no longer happen,” said Mr. Johnson. By denials, he means antics law enforcement has been using since coming under the new state transparency law to keep families of loved ones in the dark about killings and misconduct by rogue officers.
“Part of the denial was the shredding that began to take place when 1421 was first passed. The other denial was that they were charging families $2,000 or $3,000 to provide these redacted documents that were being requested. The other problem was that they were arguing that it was not retrospective, but was prospective, therefore, we weren’t able to get the history,” stated Mr. Johnson.
Also, law enforcement agencies would purposely, constantly delay the process, he charged. He expects a new law introduced by Sen. Skinner in December to alleviate the problem. If passed, SB16 would take effect July 1, 2022, and would require agencies to provide records no later than 45 days from the date of a request. It would also impose a fine up to $1,000 per day for each delay beyond 30 days.
Despite many excuses given by the City of Alameda, BART, and law enforcement—which allowed Mr. Pirone to escape accountability for his role in Oscar’s death—continued community pressure played a part in gaining momentum, said Mr. Johnson.
Meanwhile, the family and the Justice for Oscar Grant Coalition have been gaining support for an online petition to charge Mr. Pirone at www.justiceforoscargrant.com, which has garnered over 61,000 of its 100,000 targeted signatures.
“Mr. Pirone slammed Oscar against the concrete wall causing significant brain injury; punched Oscar causing ‘trauma’ to his face; jumped down on Oscar with his full, 250-pound body weight, pushing Oscar’s face-down onto the concrete platform and pressing his knee on Oscar’s neck,” reads the petition, highlighting details of the investigative report concealed for 11 years. Mr. Pirone also admitted to calling Oscar a racist, derogatory expletive.
The district attorney’s wrong decision not to charge Mr. Pirone 12 years ago was political, and focused only on Mr. Mehserle, said Atty. Burris. “The worst thing that they said by not charging him in the beginning is that they ran out of money. They didn’t have enough money to charge him, and that was kind of ridiculous,” he stated.
“We were always saying that he should be charged … he clearly was, in my view, criminally responsible for his attacks on all the young men on the platform. And Oscar, (Mr. Pirone) clearly was responsible there, because he started the whole thing and he was the one that was beating up on Oscar, and then summoned the shooter over to him,” argued Atty. Burris.
The coalition is reviewing the contents of all material, some of which the D.A. did not consider and evaluate at the time of initial charges, according to Atty. Burris.
“In light of what happened to George Floyd a few months earlier, when we look at the knee of the officer on the neck of our brother, which was a horrifying sight, it caused us to go back and review the circumstances on videotape surrounding our brother and son, Oscar Grant,” stated Abdul Rashidullah Muhammad, Nation of Islam student minister of Muhammad Mosque No. 26 in San Francisco.
Mr. Floyd, 46, died on May 25, 2020, in the custody of former Minneapolis police officer Derek Chauvin.
“We noticed that the officer, Tony Pirone, had his knee on Oscar’s neck, which meant to us that that was just not an effort of Tony Pirone to try to control Oscar and hold him down, but it was actually a military trained technique similar to what was used on George Floyd,” said Student Minister Muhammad, chair of the Justice for Oscar Grant Coalition.
They want Mr. Pirone charged with felony murder for aiding and abetting Mr. Mehserle. Mr. Mehserle ultimately fired the shot, but the scene and circumstances were orchestrated by rogue officer Tony Pirone, Min. Muhammad argued.
“The D.A. agreed to reopen the case, but she did not vigorously investigate the reopening, but used warmed-over reports from the coroner’s office, who rushed to give cover to the police by making the autopsy report very watered down and weak,” continued Student Minister Muhammad.
Though D.A. O’Malley reconsidered her position, the coalition is calling on her to look carefully into findings they argue contradict what the coroner and the sheriff’s department concluded, he said.
Other organizations who have joined in the fight to charge Mr. Pirone include 100 Black Men of the Bay Area and America and the NAACP Oakland Branch. Federal, state and local officials and others have also joined the effort, including BART board members, such as former president Lateefah Simon, who wrote a resolution supporting the call for felony murder charges. Oakland Mayor Libby Schaff wrote a similar letter, and the Oakland Police Commission and the Oakland City Council unanimously passed resolutions to reopen the case and seek maximum penalty for crimes upon conviction.
“The evidence is overwhelming and the support for this cause is overwhelming, because this is a cause bigger than Oscar, but through the martyred blood of Oscar, we’re able to offer hope to families all over America whose hearts are crying out for justice,” said Student Minister Muhammad.