Mehserle’s defense team claimed during his trial that he mistook his revolver for his yellow X-26 Taser moments before fatally shooting Grant has he laid on the Fruitvale BART station platform in the early hours of Jan. 1, 2009.

In his closing argument and during cross-examination of Taser experts, prosecutor David Stein repeatedly told the jurors there had never been such a mishap in the millions of times Tasers had been discharged by police officers nationwide.

The 100-page document, filed by Mehserle’s attorney Michael Raines late Friday, the defense claims the prosecution was convincing but incorrect when telling jurors that such an accident had ever happened.

Raines cited the case of Kentucky police Lt. Billy Jones who mistook his revolver for his Taser and accidentally shot a suspect in 2008.

“Five times Mr. Stein told the jury that in a million Taser draws, an accident like the on Mehserle claimed had occurred here had never happened.

The DA placed particular emphasis on the color, asking the jurors why the manufacturer made the Taser yellow, and then answered his own question: ‘They make it this color so that the officers can distinguish between the two,” the filing claimed.

Raines called Stein’s argument extremely convincing and added that he did not believe the prosecution knew about the Kentucky case.

The defense claimed if the jurors had known of the case at least one may have voted for an acquittal.

Deputy District Attorney David Stein, who is prosecuting the case, did not return calls seeking comment Monday.

Mehserle is set to appear in court for sentencing on Nov. 5 and could face between two and 14 years in prison, Rains said. He said the judge would likely rule then on the motion for a new trial.

Mehserle was convicted by the jury of involuntary manslaughter in Grant’s fatal shooting. The jurors had rejected the prosecution’s claim that the slaying was murder. He is currently being held without bail pending his sentencing.

Perry has a tremendous amount of discretion in handing down punishment against Mehserle anywhere from probation to 14 years. There's also the possibility he could get probation for time served.

Involuntary manslaughter carries a sentence of two to four years, but since jurors found guilty on an extra gun charge, three to ten years could be added to the sentence.