Challenge to judge in BART attack

The San Francisco judge hearing the case of an African American man charged with battery and resisting arrest in connection with a confrontation with BART police is refusing to let defense lawyers ask prospective jurors about the Black Lives Matter movement or Oscar Grant, a black man shot to death by a white BART police officer.

Public Defender Jeff Adachi cited Superior Court Judge Anne-Christine Massullo’s rulings in arguing that she is biased and asking her to remove herself from the case.

Massullo’s pretrial rulings and comments “demonstrate her lack of knowledge about or sensitivity to the issue of race relations and excessive force by police,” Adachi said last week in a request that

Massullo step down from the case of Michael Smith. If she declines to do so, another San Francisco judge will decide whether she should remain on the case.

A spokesman for District Attorney George Gascón, whose attorneys are prosecuting Smith, declined to comment. Prosecutors can file arguments supporting Massullo if the judge denies that she was biased.

Smith, 22, was arrested July 29 by BART officers at Embarcadero Station who were responding to a report that an armed man had tried to rob a passenger on a train. Cell-phone footage taken by bystanders appeared to show an officer punching Smith while he was in handcuffs and lying on the station platform. Prosecutors have said police body cameras showed Smith kicking and spitting at BART officers.

Adachi said that Smith, who was unarmed, had not tried to rob anyone and that another passenger concocted the story after insulting Smith’s pregnant girlfriend on the train. Smith is charged with battery on four BART officers — one white, one Latino, one Asian American and one black — and with resisting arrest.

Adachi said he plans to offer an unusual though not unprecedented defense: that Smith had the right to defend himself because he thought the officers were using excessive force.

Trial judges for new cases are chosen at random. Adachi removed Judge Gail Dekreon, who was initially assigned to Smith’s case, a right that each side can exercise once. The case was then reassigned to Massullo, a former federal prosecutor and deputy city attorney appointed to the bench by Gov. Arnold Schwarzenegger in 2006.

Adachi said Massullo repeatedly ruled against the defense during a three-day hearing last week, barring the defense from offering trial testimony by other train passengers and an expert witness, and laughing and looking at the clock while Adachi was arguing his case.

He said he had told the judge he planned to ask prospective jurors if they knew about Grant, who was shot to death on New Year’s Day 2009 while lying face-down in handcuffs on the platform at Fruitvale Station in Oakland. Johannes Mehserle, a BART police officer, was convicted of involuntary manslaughter by a jury that credited his testimony that he thought he was firing his Taser stun gun.

Massullo replied, “I don’t want any mention of Oscar Grant,” Adachi said. He said the judge had also told him, in response to another request, that he could not ask the jurors about Black Lives Matter or issues of police brutality. “I don’t want you to psychoanalyze the jury,” he quoted the judge as saying.

Adachi said the U.S. Supreme Court ruled in 1981 that jurors could be asked about racial bias if the circumstances of the case showed a “reasonable possibility that racial prejudice would influence the jury,” particularly in cases where a defendant is accused of a violent crime against members of another racial or ethnic group.

“Possible racial bias is a big issue in this case,” Adachi said. “They got a report of a young African American man, and immediately they used extreme force against him . ... It’s very similar to what happened in the Oscar Grant case, where you had a man who was taken down in handcuffs.” Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@ sfchronicle.com Twitter: @egelko