AILSA CHANG, HOST:

NPR and member station KQED have obtained never-before-heard tapes from the investigation into the police killing of Oscar Grant. These tapes provide new details about the missteps made by investigators in the early hours and days after a Bay Area Rapid Transit police officer shot Grant on New Year's Day in 2009. It was one of the first times that cellphone videos of a police shooting went viral. Millions saw the footage of Officer Johannes Mehserle firing a single gunshot into Grant's back as he lay face down on the train station platform.

But until KQED sued the transit agency to force the release of the files, no one, including Grant's family, had heard how the shooting was investigated.

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UNIDENTIFIED INVESTIGATOR #1: So we want to figure out what happened.

JACK BRYSON: Y'all already know what happened. (Unintelligible) shot him. Y'all know exactly who shot him. If it was the opposite way, it wouldn't be no questions and all that. It'd be in jail.

CHANG: NPR and KQED took a deep look at this case for the final episode of the podcast On Our Watch.

Sukey Lewis hosts the show and joins us now. Hi, Sukey.

SUKEY LEWIS, BYLINE: Hi, Ailsa.

CHANG: So what were the big questions in this case that you were hoping to find answers to in these recordings? What were you looking for ultimately?

LEWIS: So there were actually these two different investigations that BART did into the shooting of Oscar Grant. One was their own criminal investigation to see if officers were criminally liable. And there was another one that was done later that was under immense pressure from the public. They hired this outside law firm called Meyers Nave to do an internal investigation and look at policy violations.

And out of these two investigations, we got out 60 hours of tapes and have been going through them, trying to understand how they were done and also how they were different. We'd known for years that there were significant issues in how the agency itself went about its initial investigation. And we found that they missed all these opportunities to really clarify what happened early on. You know, they failed to ask the officers difficult questions and made choices that limited the scope and the outcome of the accountability process.

And we also found that the investigation that was done later by that outside law firm really did ask much more, you know, tough questions and interrogated systemic issues within BART in a way that the agency itself didn't do. And so they focused not just on Johannes Mehserle, the officer who shot Grant, but they also focused on another officer who was named Tony Pirone.

CHANG: Right. Oscar Grant's family has been pursuing charges for Tony Pirone. What do these tapes show about Pirone's role in the incident?

LEWIS: So Tony Pirone was the first officer to respond to the platform. There was this call about a fight on the train. It was New Year's, 2 o'clock in the morning. The train was completely packed. And once Pirone arrives, things just keep escalating. He's very aggressive. He homes in on Oscar Grant's group of friends. He starts swearing and using force in a pretty brutal way. And the crowd also reacts and gets involved. And when he goes to arrest Grant for resisting arrest, Pirone is the one who holds Oscar Grant down with his knee in his back near his neck. And Grant was shouting to his friends and to the officers that he couldn't breathe. Now, Mehserle is behind him, and he's trying to handcuff Oscar Grant. And it's when Mehserle can't get Oscar Grant's hands that he stands up and he fires the fatal shot. And this comes up in the tapes that we obtained, and here are the Meyers Nave investigators from that outside law firm asking Pirone about this very moment.

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UNIDENTIFIED INVESTIGATOR #2: Do you know if Officer Mehserle was ordering him to take his hands out?

ANTHONY PIRONE: I remember Mehserle saying a lot of things. Exactly when and what he said - at that time, that's when he started yelling that I can't get his hands. I can't get his hands; they're in his waistband; I can't get his hands.

UNIDENTIFIED INVESTIGATOR #2: OK. Did you ever think that your weight on Oscar Grant may have inhibited his ability to get his hands out?

PIRONE: I don't know.

UNIDENTIFIED INVESTIGATOR #2: OK.

LEWIS: So the outside law firm, Meyers Nave, found that Pirone's weight actually did prevent Oscar from giving up his hands. And they found that his erratic and aggressive behavior set the stage for the shooting. They also found that his story about what happened that night kept shifting and changing. Pirone was ultimately fired, but that report was still kept secret for 10 years. And once it finally came out under a 2019 police transparency law, Oscar Grant's family decided to make a new push for the DA to bring charges against this officer.

CHANG: And what happened when the district attorney took another look at this?

LEWIS: So she said, you know, she looked really closely at this case from every angle. You know, multiple lawyers in her office worked on it. But they found that the only thing that Pirone could have been charged with was assault under color of authority, and the statute of limitations had run out. In California, if a police officer abuses their authority to beat someone up, it's just a misdemeanor. At most they'd get a year in jail. The DA said her office made a strategic decision not to charge him back in 2009 because they wanted his testimony in order to try and get a murder conviction for the officer who shot Grant, Johannes Mehserle.

But this is also something that we've found over and over again in our reporting is that it's really rare that police officers face criminal charges even for criminal misconduct.

CHANG: And Mehserle, the officer who was criminally charged in this case, the theory in his defense was that he actually meant to use a taser, not his gun. Do these records give us any more insight into Mehserle's claims?

LEWIS: Well, the fact that Mehserle's defense is still somewhat in question also comes back to choices that were made by BART command staff. And first of all, they let Mehserle and his lawyer view bystander video of the incident before they interviewed him. After watching the video, he refused to talk and invoked his Fifth Amendment rights.

Now, his bosses could have still ordered him to do an interview. That's not admissible in court, but these kinds of interviews are done all the time. And instead, in this case, he said he was tired, and BART leadership just let him go home. He resigned shortly after that, and he never gave that statement. So his explanation that he mistook his gun for his taser didn't come out until a month after the shooting. At his trial, the jury believed Mehserle's explanation, and they convicted him of involuntary manslaughter rather than the murder conviction sought by the DA. He spent 11 months in jail.

CHANG: Well, I'm wondering, Sukey - what was it like for Oscar Grant's family to hear these tapes for the first time?

LEWIS: It was really emotional and intense, you know? We played selections for them. You know, we didn't want to overwhelm them with the 60 hours of tapes that we went through. But I think that they felt very vindicated that a lot of this stuff was things that they had suspected for a long time, but it felt like proof. And while it doesn't change their outcome in their case, Wanda Johnson, Oscar Grant's mother, says it's really important that these things come out.

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WANDA JOHNSON: Maybe not for me or my family, but what it can do is if people hear the tapes, change the perception of how they may have felt concerning policing.

LEWIS: So what Wanda is saying is that transparency is really bigger than any one case. Now that we can at least start to see inside the system, it better allows everyone, from advocates to policymakers to average citizens, to understand the legal protections that police officers have and how secrecy and self-protection act as incentives against accountability.

CHANG: Sukey Lewis is the host of On Our Watch, a podcast that examines the shadow system of police accountability in California. The final episode examining new details into the shooting of Oscar Grant is out today. Thank you so much for your reporting, Sukey.

LEWIS: Thank you.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.