Law & the Courts

Walter Scott’s Death Doesn’t Mean We Should Abandon the Presumption of Innocence

Our system allows for miscarriages of justice, but what’s the alternative?

Since the video of Walter Scott’s disgraceful murder began to careen around the Internet on Tuesday afternoon, the value of surveilling the police has been discussed ad infinitum. If there were no footage of the shooting, Scott’s father contended on NBC yesterday, the authorities would likely “have swept it under the rug, like they did with many others.” This was a view that has been broadly expressed by the commentariat. “A video,” Robinson Meyer noted in The Atlantic, “is one more assertion made about what is real,” and is therefore an invaluable — if not a failsafe — tool in the search for truth. Reason’s Jacob Sullum agreed: “Video footage,” Sullum wrote, “while not necessarily decisive in cases where police use deadly force, can make a crucial difference.”

Other commentators have been a touch more pointed. “If the video had not surfaced,” ThinkProgress’s Judd Legum suggested, the officer’s story would have been taken at face value. Indeed “without the video,” Balloon Juice’s Zandar added, “Scott’s death never would have been questioned, and certainly we would have been in a familiar position of ‘not enough evidence to warrant a trial’.” And then? Michael T. Slager would have walked.

RELATED: A Camera Will Mean Justice for Walter Scott

Insofar as they make the necessary case for the increased use of cameras and for a general skepticism toward the state, such appraisals are timely and reasonable. And yet I have noticed an unpleasant subtext creeping into this complaint. Writing at his “alicublog” yesterday, Roy Edroso concurred with my own asseveration that the video had made the difference, but then took me to task for my supposed refusal to “learn” broader lessons from that conclusion. “A number of journalists,” Edroso proposed, “have been making the point that without the fortuitous video, Scott would be dismissed as another lawbreaker who got, if not quite what he deserved, then at least no more than he had a right to expect.” This, he noted, was a good thing. And yet he was disappointed that many among them — myself included — have not taken the next step: to conclude that the Scott case is typical, and that the skepticism that has been aired during previous controversies was misplaced. “Are you wondering why” conservatives who are condemning this killing remain “so sure about Brown and Martin, even though ‘witness reports’ can be ‘wholly incorrect’?” Edroso inquires. ‘I’m not.”

Such critiques have started to creep in elsewhere, too. “Someday,” CNN’s Sally Kohn hoped aloud on Twitter, “more white people will be upset when cops kill unarmed black men EVEN WHEN THERE ISN’T A VIDEO.” “‘Black lives matter’ here,” Sharon Grigsby wrote yesterday in the Dallas Morning News, “because the facts of what unfolded during that chase are indisputable thanks to video evidence.” From the right, meanwhile, radio personality Michael Graham has asked, “Why are conservatives relatively quiet in this case? I know why: The videotape.” “If there were no video,” Graham added, driving his point home, “conservatives would be rallying around a cop who shot an unarmed guy in the back eight times and then lied about it.”

RELATED: Why Obama’s DOJ Should Stay Out of South Carolina

Graham is right to suggest that there are some on the right who will defend the police no matter what. Frankly, I have neither time nor use for these people, and I will not waste my energy defending them. But, this small clique to one side, I think that he is confusing conviction for humility. Pace Roy Edroso, I am not at all “sure” what happened in the cases of Michael Brown and Trayvon Martin. On the contrary: I have written repeatedly that I do not — and I cannot — know what happened in those instances, and that, in all likelihood, nor can a jury. It is feasible that the forensics report would ultimately have undone Officer Slager: Film or no film, that a cop shot a man repeatedly in the back from a distance would have undoubtedly provoked outrage. But it is also feasible that the incompatibility of the physical and verbal evidence would have led only to confusion. Really, it should not be too difficult for us to imagine a situation in which, as a result of a cleverly crafted police report, a set of misleading witness statements, and a forensics report that explains the what but not the why, a jury found it wholly impossible to divine what had happened in North Charleston and let Slager go. For the want of a body camera, a murderer could indeed have walked free – a travesty, on anyone’s terms.

But what, pray, would have been the alternative if that had indeed happened? In order to placate those who believe that miscarriages of justice are quotidian and that this simply had to be another such example, should our authorities in this scenario have merely presumed that Slager was guilty, and condemned him despite a jury’s reasonable doubt? Or should they perhaps have taken another course, electing to trust the police on principle and concluding inevitably that Scott deserved to be killed? Clearly, they should have done neither of these things. Rather, the powers-that-be should have hewed to the usual principles of reason and of due process and treated this as an individual case, with individual characteristics, particular evidence, and a complicated set of available facts.

It is frustrating for us to acknowledge that we live in an imperfect world, and that terrible people are often able to get away with doing terrible things. But live in an imperfect world we do. This being so, critics of the status quo should recognize that when they insist that bystanders such as myself “pick a side,” they are in fact requesting that we make confident determinations that we cannot possibly make. In almost every circumstance, I am capable of watching a video and comprehending what it shows. Ceteris paribus, I am not, however, able to examine an apparently 50/50 case from afar and conclude beyond reasonable doubt that one party is guilty. To ask me to do so based primarily upon my impression of how America operates writ large is not enlightened, it’s barbaric.

#related#All of which is to say that unless we wish to do away with the more virtuous presumptions of our judicial system, the advantage will often go to the living and the public will typically say, “I don’t know.” If a cop unreasonably shoots a civilian, it is he, and not that civilian, who gets to provide the narrative in court. Sometimes, there being a number of mitigating factors, he will get away with his crime. Likewise, if a trigger-happy private citizen uses lethal force when he should have declined to do so, it is on the state to demonstrate that he behaved outside of the rules. That this is the case does not, of course, mean that killers invariably enjoy carte blanche. Indeed, when their guilt is obvious — and, now, when they are caught on tape — no amount of dissembling can possibly save them. But it does mean that if we hope to preserve our commitment to the presumption of innocence, we are going to see miscarriages from time to time.

Drawing on ancient, gradually evolved principles of justice, the jurist William Blackstone famously proposed that “all presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.” This maxim was subsequently expanded ten-fold in the colonial American imagination, Benjamin Franklin arguing in 1749 that “it is better 100 guilty Persons should escape than that one innocent Person should suffer.” A century later, Otto von Bismarck offered an inverted, perverted submission: to wit, that “it is better that ten innocent men suffer than one guilty man escape.” When we ask onlookers to react to mystery with certainty, and to pick a side in individual cases on the basis of one’s broader fears, we are siding with Bismarck, not with Blackstone, and we are urging the citizenry to punish not only those whose guilt is abundantly clear, but those whose motivations and history were unknowable. That’s not justice; it’s revenge.


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