OAKLAND (KRON) -- Johannes Mehserle's decision not to testify at a preliminary hearing left the judge hearing the case of the shooting of unarmed passenger Oscar Grant with no choice but to put the former BART Police Officer on trial for murder.

Judge C Don Clay told the court, "this case boils down to the state of mind of Mehserle at the time of the incident."

Since Mehserle didn't testify, Judge Clay says he couldn't determine the defendant's state of mind at the time of the shooting.

Mehserle shot and killed Grant while investigating a fight on a BART train early on New Year's morning.

The former officer’s attorney, Michael Rains, tells KRON 4 he’s not happy with how things turned out, “"We are going to take a look at things and move forward to the next arraignment and see if we need to challenge the basis on the ruling. We need to get transcripts from the prelim, and than with utmost certainty we will look into if we need to challenge the way that the judge conducted himself during the entire case. We will be figuring out our plan of action over the next couple of days and will most likely have a decision soon if we are going to file any sort of appeal."

Judge Clay said it was clear to him that Mehserle shot Grant, that the victim was unarmed, and that manslaughter can't be determined without knowing Mehserle's state of mind.

The judge also says he found a conflict in reports of Mehserle's behavior immediately before and after the shooting.  Officer Tony Pirone testified Mehserle told him to stand back because he was going to shoot Grant with a taser.  However Judge Clay says that doesn't square with the former officer's remarks that he thought Grant had a gun.  The judge says if Mehserle is going to argue a case of self defense, he would have to acknowledge the shooting was intentional and not an accident.

"There is no doubt in my mind that Mr. Mehserle intended to shoot Oscar Grant with a gun and not a Taser." the judge said.

As to whether Grant was cooperating with officers, the judge said the victim "did nothing to warrant deadly force."

Witnesses did say Mehserle said "Oh My God" several times after the shooting but Judge Clay says he didn't know what that meant.  He noted no one reported the officer as saying he made a mistake.

The judge said he wasn't sure he trusted the testimony on Pirone.  He did credit another officer's statements that Mehserle's mood was "elevated" following an earlier chase involving a man with a gun at the West Oakland station.

Mehserle is due to return to court June 18th for a formal arraignment.  He could then learn a trial date in the case.

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