Johannes Mehserle loses bid for bail during appeal

(12-03) 16:50 PST LOS ANGELES --

A Los Angeles judge denied bail Friday for Johannes Mehserle, the former BART police officer convicted of involuntary manslaughter for fatally shooting an unarmed passenger.

Mehserle, 28, will remain behind bars while he appeals his conviction and two-year prison sentence for shooting Oscar Grant in the back while the 22-year-old Hayward man lay face-down on the platform at Oakland's Fruitvale BART Station early Jan. 1, 2009.

"That's terrific," Oakland attorney John Burris, who represents Grant's family, said after hearing of Judge Robert Perry's decision in Los Angeles County Superior Court. "We were concerned that this, frankly, would be pouring salt in an open wound, so I'm glad it didn't happen."

Cat Brooks, co-chair of the Onyx Organizing Committee, said at a news conference in downtown Oakland, "It is a bittersweet victory, as in too little, too late. We know that this will not bring back Oscar, this will not stop police brutality in our communities. But as a community, we are going to stand up and celebrate this victory."

Brooks and members of the Coalition for Justice for Oscar Grant called on Alameda County District Attorney Nancy O'Malley to appeal Mehserle's sentence. Through a spokeswoman, O'Malley declined to comment Friday.

Mehserle's attorney, Michael Rains, had argued that the former officer would pose no danger while on bail and had legitimate grounds for overturning the July 8 guilty verdict, such as jury instructions that the defense called confusing.

The trial was moved to Los Angeles from Alameda County because of pretrial publicity in the Bay Area.

In convicting Mehserle of involuntary manslaughter rather than murder, the jury accepted a defense argument that the officer, responding to chaotic conditions on the platform after a fight on the train, thought he was using his Taser shock weapon instead of his pistol when he shot Grant while arresting him for allegedly resisting police.

The jury also found that Mehserle had personally used a gun, a verdict that normally would add three to 10 years to his sentence. But Perry dismissed that finding last month before he sentenced Mehserle, saying no reasonable jury could have concluded that the officer had intentionally used the gun.

In court papers, Alameda County prosecutors said a convicted felon is eligible for bail only if defense lawyers show a substantial likelihood of a successful appeal. They said the defense had failed to do so in this case.

With credit for time served, Mehserle could be eligible for release in about seven months.

After the sentence was announced Nov. 5, police arrested 152 protesters on a street near Lake Merritt. Most of them were cited for misdemeanor unlawful assembly and released pending court dates Monday.

One protester, Stephanie McGarrah, has been charged with felony arson for allegedly setting a trash can on fire.

E-mail Henry K. Lee at hlee@sfchronicle.com.

This article appeared on page C - 1 of the San Francisco Chronicle