Oversight or coverup? BART police Chief Gary Gee, left, announces Jan. 12 that the transit agency completed its investigation into the Jan. 1 shooting death involving an officer. Gee said only the shooter was being investigated, but an amateur video, inset left, shows that another BART officer may have punched Grant before he was killed. Examiner file photo OAKLAND – BART’s initial probe into the fatal shooting New Year’s Day of an unarmed passenger by a transit agency police officer is under fire after recently released footage of the incident shows another officer punching the Hayward father in the head prior to the shooting.

On Jan. 12, BART announced it had completed its internal investigation into the death of 22-year-old Oscar Grant III. That afternoon, police Chief Gary Gee said only the shooter, former Officer Johannes Mehserle, was being investigated in connection with the incident. The other six officers on the Fruitvale station platform that morning had followed proper police procedure, Gee said.

But an amateur video clip that aired Friday on KTVU presents a different scenario, legal experts say. A second officer identified as Tony Pirone is shown punching Grant moments before the shooting in what appears to be a clear act of excessive police force, said Peter Keane, a police expert and professor at Golden Gate University Law School in The City.

Mehserle, 27, is accused of murder, but no other officers are facing disciplinary or other charges. The Alameda County District Attorney’s Office, which is prosecuting Mehserle, did not return calls for comment Monday. Mehserle is being held at Santa Rita Jail in Dublin and has pleaded not guilty.

The footage of Pirone punching Grant seems new to the case, but KTVU’s news director said Monday that the same clip has been available for viewing in full on its Web site since Jan. 6, less than a week before Gee publicly exonerated Pirone and the other officers present on the Fruitvale platform.

The question now is whether BART had missed seeing the footage of the punching incident during its investigation or had chosen to ignore it in order protect Pirone, experts say.

“If the police chief made that statement having seen this video … the chief should be fired,” Keane said.

He also said if it’s discovered that officers witnessed the punching and chose not to report it to investigators, they “at a minimum” should lose their jobs.

“This is the most revealing of all the videos, the most damning,” he said.

Grant’s killing has sparked social unrest and led to rioting in Oakland.

Attorney John Burris, who’s representing Grant’s family in a $25 million claim against BART, said he’d “like to believe” BART investigators missed the punching incident while reviewing the available video footage.

“If they saw it, that’s a cover-up,” Burris said.

BART officials said they will conduct a “rigorous” internal-affairs investigation into Pirone’s actions. Repeated e-mails and phone calls asking whether the transit agency had missed seeing the punch during its initial investigation have not been returned.

Timeline of events following shooting death

Jan. 1: Oscar Grant III fatally shot on Fruitvale BART station platform

Jan. 7: Officer who shot Grant, Johannes Mehserle, resigns from BART

Jan. 13: Mehserle arrested in Nevada on murder charges

Jan. 15: Mehserle pleads not guilty to murder charges

Jan. 23: KTVU airs footage showing a second officer punching Grant prior to shooting; BART officials launch internal-affairs investigation into second officer’s involvement in shooting

Friday: Mehserle, who is being held on a no-bail warrant, is due in Alameda County Superior Court for a bail hearing.

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Examiner wire services contributed to this report.
Published on: January 27, 2009


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