134 pages, one reason defense attorney mike rains is asking for a new trial is because of the newly discovered case he says is almost identical to that of the bart shooting new years day 2009. >> meheserle was found guilty of involuntary manslaughter for shooting in the back and killing oscar grant. jurors rejected a murder agreeing with defense he mistook his gun for a taser. a lieutenant in kentucky has an affidavit said he did the same thing the year before seriously injuring a man. the kentucky officer was briefly suspended but not charged with a crime. >> so why would that make a difference at this point? >> the district attorney said so this has never ever happened

before. ever in a million times police officers have fired their tasers it has never happened before. guess what, it has. >> rains also argues the judge made errors in instructions to the jury and asked him to order a new trial. >> to have a judge reverse himself, it is very unlikely. >> it is hard but it is not impossible. >> the district attorney had no response to the motion yet but the attorney representing the family of the victim, oscar grant did. >> the jury has decided this case, on the evidence that was there we don't agree with that decision but they were not the kind of errors to justify a new trial. now if the judge rejects meheserle's motion for a new trial he will sentence him november 5th defense is asking for probation, oscar grant's family wants the maximum, 14 years in state prison. reporting live from the newsroom. rita williams, ktvu channel

news. >> for the latest be sure to view ktvu.com click on the meheserle case tab. >> residents near walnut creek don't feel safe after yet another assault at their apartment complex this weekend the the fifth since june. contra costa sheriff's department made an arrest in connection with the first three arrests at park regency but now two more cases sexual assault less than two weeks ago and now an attack saturday night. some tenants want to leave but they are having a hard time getting the complex to waive fees of $3,000 or more. >> today i decided they can take me to small claims court if they want to i am moving for my own safety. the suspect in saturday's assault is a white male between 5'8" and 5'9" brown hair and facial hair. a driver of a stolen van runs down a veteran police officer and investigators say he did it on purpose. the driver ended up getting

away officers are searching for him tonight. ktvus maureen nailor is live in san jose at the hospital where the officer who was hit is recovering from surgery. >> officer brower had that surgery this evening regional medical center in san jose he is a husband, father of three said to be in stable condition he was conscious after being hit and dragged and able to tell investigators what happened. armed officers in fremont canvassed this industrial complex, helicopters hovered searching for a man who stole a stolen delivery van at a fremont motorcycle officer pinning him underneath. >> it was an intentional act this suspect intentionally ran into our officer we are searching for him now. >> reporter: police were called about the stolen van 10:30 a.m. this morning. soon after patrick brower spotted it and stopped in the center divide the van sped up and hit the officer dragging

him across two lanes before collide being a pole. >> at first it looked like it was up on the pole and when we went out the back we saw the back offend the motorcycle was sticking out and up 4 feet in the air. >> he was still alive they had a mask on him, oxygen mask on him and he did have his -- one arm here and the other was completely covered. >> fremont's police chief said the officer has been on the force 10 years and injured his leg. >> doctor indicated the left leg, the shin bone had been broke none several places, and they would have to go in surgically and insert a rod. >> the suspect still has not been caught he is described as hispanic between 25 and 30 years old, 6'0" tall, medium build last seen wearing a reddish sweat shirt and blue jeans. richmond police say a story unktvu helped lead to an arrest

in an unusual scam that exploited an autistic boy. investigators say miranda attempted to set up donation boxes at several -- admitted to setting up donation boxes at several local stores to raise money for sid's funeral but he is alive and well the suspect's girlfriend said she was watching ktvu news, recognized her boyfriend in the surveillance video and called police he volunteered at the boy's school and got his picture off a bulletin board. >> state controller may have to issue ious if they don't issue a budget by the end of the week. the legislature is not expected to vote on the budget until this thursday. ious must be approved by several. a major victory for governor schwarzenegger today the california supreme court

upheld his ordered to furlough state workers to cut the state's budget deficit workers unions claim it violates collective bargaining agreementthe governor didn't have the power to furlough state workers but today the court order said the order was validated bypassage of a budget bill. with a budget deal about to be voted on this week, just shy of 100 days late, the furlough fight may not be over. >> we don't know, if the legislature will include those savings in the budget or not that is kind of an unknown issue that we can litigate separately and you know something that is out there for us to thing about. furlough fridays began in february last year, 200,000 state workers are being made to take 2 to 3 unpaid days off a month. a different kind of furlough started today, san jose's unified is on a self-

imposedded furlough to avoid layoffs. halting education is difficult. live in san jose to explain, robert. >> reporter: julie we are here at one of the very quiet come puss of san jose -- campuses of san jose unified school district. today you didn't see much going on although that doesn't necessarily mean nothing was getting done. >> go. >> lincoln high school cross country team still had practice even toe the unified school district started a five day furlough some runners and quite a few students are taking the week long break-in stride >> i think it is cool i get a break, but i am just going to stay at home and rest because i ran the half marathon here yesterday so i am tired. >> i think study and catch up maybe get ahead of the teachers and stuff. >> reporter: that might be difficult especially with teachers like jennifer thomas who spent the afternoon at her

favorite coffee shop grading papers. >> i thought about taking a vacation, but the reality is i got up at 7 instead of 5, ate my breakfast and said i have work to do. >> reporter: those teaching high level college prep courses held voluntary study sessions. >> we actually did have class but our teacher didn't get paid for it and i also have a whole bunch of projects that i amount going to be doing not very much time to hang out. >> i am glad we got to catch up on what we were missing because then we are not behind when it comes to tests and stuff we have to take. now the main reason teams can play is because san jose unified competes against other districts and officials didn't want the interfere with schedules for staff and students a furlough is not necessarily a vacation. robert honda, ktvu channel 2 news. >> californias seem to agree on one thing, a new exclusive ktvu field poll shows 93% of voters

surveyed say the state is in bad economic times only 26% expect california's economy to improve in the coming year. more than half of those questioned said their own personal finances declined during the past year. 89% called unemployment a very serious problem. gubernatorial candidates gerry brown and meg whitman found something they can agree on they decided to cancel a radio dibait they were scheduled to appear tomorrow morning kgo radio, owen said he is quote beyond disappointed. the two campaigns state plans had never been finalized. >> early voting began in san jose election officials say they could see big numbers. overall turn out for the november election could be bigger than the last two elections a few people were weighed in at city hall elections office for doors to open at 8:00 a.m. this morning so they could cast their votes. >> san jose metro newspaper

apologized for what some are saying is a racist reference to a county supervisor. >> this is great. >> let me say something to you. >> i apologize. i apologize. okay. it was a poor word choice i want the apologize to you [ applause ] >> yeah >> i want to snow you respect. >> executive editor of the paper came out this morning interrupting a briefing and protesting a column the paper ran last week demonstrators were there alongside former san jose city councilman williams who was the subject. he used the word slavish to describe him. >> in the future we can be more sensitive it was not meant in any way that was derogatory or racial context of the word strictly politics. >> it has significant connotations from a cultural perspective and it is hurting from where we've come from and what we have done and where we

are going for the future. >> williams accepted the apology he said he has long been a supporter of civil rights and it was an unthinking error that should not have happened. the paper agreed to print an apology as well. >> health officials say three adults contracted west nile virus, one man and one woman from east county, and one man from west county are recovering. five people in contra costa came down with west nile virus last year the number was the same the year before. there were four cases in 2007. the last death from west nile virus in the county were two people in 2006. state department of fish and game continue working to limit damage from a fuel spill over the weekend in san jose crews placed booms to contain any diesel that made its way into the water saturday. the fuel came from a tank on top of at&ts corporate building. most of the 1300-gallons had

been cleaned from the street yesterday but some also entered the storm drain the booms will stay in the river until any fuel evaporates. >> the reason why one california jail is banning hugging and kissing. >> plus. >> near death experience of a high school athlete brings donations of life saving equipment but months later, most of it is not being used. they are back the telltale sign fleet week is about to return to san francisco. >> believe it or not i am tracking showers, green on live storm tracker 2. i will let you know if those will enter your neighbourhood

a near death experience on a basketball court prompted an east bay path tore take action but efforts to give school officials a life saving tool are going nowhere. what is being done to fix the problem. john. >> reporter: frank, this is the football team because of a recent addition it is arguable these players are safer than last season but not all schools can say the same thing. educators want to keep students safe and healthy but some say the west contra costa school district has been dragging its feet. >> seems like it is about money and opportunity if they would donate it why were they not put in lace. >> reporter: his son davie almost died in a school basketball game from sudden cardiac arrest. his father fought to get aeds donated to the district. but now more than 6 months late

we are we found these new aeds are stacked up in a district storage closet waiting to be installed at schools. >> as a father, as a father figure we have to lookout for not just our children but others as well. >> reporter: district officials admit they dropped the ball. >> we slipped out of the gate we have stabilize we are hitting the ground running yeah, we take personal responsibility for failing to get them for the first four months. >> call for help now. >> reporter: the district now plans to train staff how the use aeds next week and each mid- edle and high school should have them installed in the next month. >> we want them installed and people trained as quickly as possible and done right absolutely. >> reporter: davie is glad to hear the news. >> difference between life or death really. just take off the wall and use it in case anybody needs it. >> the school recently hosted a heart health screening for

students and residents and 10% of the 300 people who came found they had some heart problem they didn't know existed. ktvu channel 2 news. a new report shows nearly $69 million in california welfare money is being spent in places like hawaii, las vegas, caribbean cruise ships. the largest chunk of that money was spent at casinos or with drawn at atms in las vegas. out of state spending on welfare aid cards was less than 1% of the total amount spent by recipients, january 2007 to may 2010. >> a prison in bakersfield has a new ban on hugs and kisses. they may be using signs of e following the accident to pass contraband to inmates in august alone, four visitors were found with contraband including a knife, handcuff key, marijuana,

meth and drug paraphernalia. >> travel alerts from u.s. state department about possible terror attacks in europe on the rise. but the fear of terrorism in foreign terrorism is not a big problem, the long time owner of a bay area travel agency said bookings are not down cancellations not up. >> people are tired of these threats and are determined to live their lives, and complete their travels. >> none the less united states, japanese, canadian, swedish and british governments are aall righting their citizens about possible terror attacks, in germany, france or sweden. europe now joins 31 countries on the state department's global alert list. >> well, when it comes to weather, another cool day around the bay area, different than last week let's check with bill martin. you said it julie big difference last week record

heat. 100s. live storm tracker 2. showers showing up with winter weather advisory in the mountains rotation is like this. everything is coming around this low. so my concern tonight is some of the shower activity could bleed into our area it would be light and not a big deal then again on wednesday similar set up occurs, so be prepared for a slight chance of a sprinkle overnight lows cool, 46 santa rosa, 47 napa, low pressure center, winter weather advisory lake tahoe that is a big deal they get snow up there. low pressure center, not enough to bring us real rain but enough to be a nuisance for the next 48 hours. main thing it is going to do is giver us cloud cover, windy conditions, snow in the mountains, snow level obviously high, winter weather advisory none the less, a half foot of snow in higher elevations forecast, clear lake, 75, 74 napa, here is the up shot of that system i wish it would drop an inch of rain. but the up shot to it is you

are taking the fire danger here october that is usually the lead story, not tomorrow, 75 in walnut creek, 75 danville, not again on wednesday either cool then as we go through the end of the week it will warm up. 72 camel, milpitas, forecast highs, low 60s. fog breezy ocean beach the great highway sand blowing across the highway you know how that gets bad today won't be as bad tomorrow but wind on the highway. sand piles up. the forecast, a little sprinkle on wednesday not a big deal, nuisance stuff but boy, great news if you are a firefighter in the northern california, and warmer as we head towards the weekend. >> thanks bill. blue angels are back roaring across the skies of the bay area they landed in san francisco international airport for fleet week. faa hornets will get a tune up before taking off for practice runs thursday and friday they are scheduled to perform

synchronized ail stunts thursday and friday depending on weather conditions they have to have a certain amount of visibility. giants fever running high in san francisco why city officials say the playoffs could not have come at a better time.

with the giants headed for the playoffs for the first time in 7 years pennant fever is sweeping much of the bay area. giants take on the braves thursday at at&t park for the first if best of five series, giants officials say the playoff games could generate tens of millions in food, merchandise and ticket sales city officials say timing of the playoffs is perfect this week's home game, as the city gears up for fleet week. >> what do you think of the braves? >> a lot of people are trying to get their voices back after yesterday. thrilling to say the least. and the atlanta braves do present a problem for the giants. but they are still basks in the glow of yesterday's victory as you will again see the final, wilson doing it just the way posey wanted it. the strike out. final out, let the celebration

begin braves will be without one of their top players jones has not been announced officially by tim will start. >> a lot of nervous butterflies, just waiting to see what will happen we hope they will shut that one down just obviously stellar this year but i mean, i am just substituterring my words i am so -- substituterring my words, i am so excited. >> a lot of people were stuttering their words. they lead wire to wire down in atlanta, until this play set up victory for the falcons, nate clemens with a beautiful interception gets greedy instead of going down, could have run off the clock has the ball stripped from behind atlanta recovered if fumble, went down marched in for a game winning field goal, 49ers, 0

and 4 but singletary feeling his job is still secure. >> you know i won't worry about who do i need to talk to. am i okay? you know what, these guys that is my responsibility you go out there on sunday you do your job you win football games the last thing i am thing about is my job security. >> time to vote for the high school game of the week. get the ktvu.com ... those are your choices again ktvu.com and the team or schools with the most votes at the end of the week we will highlight that game come friday here at channel 2. and the euros have beaten united states ryder cup highlights tonight at 10. julie. >> thank you. we are following breaking news in hayward where police are conducting a search south

hayward bart station authorities are looking for the suspect who ran over and seriously injured a fremont police officer earlier this morning right now bart tells us there are no southbound trains running past there, down the union city and fremont. we will have the latest on the situation in a live report bay area news at 7 in 30 minutes tv- 36 that is our report for now i am frank summerville. >> i am julie hainor. good night