Law & the Courts

How Could a Jury Not Convict the Man Who Killed Walter Scott?

Slager (middle) with his defense team in the Charleston, S.C., courtroom, December 5, 2016. (Photo: Grace Beahm/Post and Courier/Pool/Reuters)
Jurors couldn’t agree on a verdict in the trial of Michael Slager — but that doesn’t mean that justice has been denied to Walter Scott.

It seems incredible. A South Carolina jury just deadlocked in the trial of North Charleston police officer Michael Slager, the cop caught on tape last year shooting Walter Scott, a fleeing, unarmed black man, in the back. Even worse, that same recording appeared to show Slager planting evidence by Scott’s dying body, moving his Taser to place it beside Scott. It seemed like an open-and-shut case. Slager was one of those rare cops who actually gunned down a suspect in cold blood. Prosecutors will certainly try the case again, in front of a different jury, but in the meantime Americans are left wondering how the prosecution failed to convict.

To police critics, the mistrial was further proof that the system is broken, that white cops can kill black men with impunity. In the words of the Huffington Post’s Julia Craven, Slager wasn’t convicted because “black lives don’t matter.” In a thoughtful piece over at The Atlantic, Conor Friedersdorf called the mistrial “the latest evidence that the system as it now exists does not reliably punish cops for even egregious killings.”

Initially it appeared that a lone juror was the cause of the deadlock. Early reports indicated that eleven jurors were ready to convict, but one juror could not “in good conscience approve a guilty verdict.” Yesterday, however, it seemed that a “majority” of jurors were undecided. Prosecutors charged Slager with murder and voluntary manslaughter. It could be the jurors were not only split between guilt and innocence but also between murder and manslaughter.

If you know the law, and if you know juries, this result is surprising but not shocking. First, let’s deal with the law. To find a cop guilty of murder in a case like this, it’s not enough for the prosecution to prove that Scott wasn’t actually a threat to Slager. Instead, the prosecution must prove that Slager couldn’t reasonably believe Scott was a threat. This rule applies to any defendant — not just police officers — who claim they acted in self-defense. The jury instructions in the case explain the standard clearly:

The defendant does not have to show that he was actually in danger. It is enough if the defendant believed he was in imminent danger and a reasonably prudent person of ordinary firmness and courage would have had the same belief. The defendant has the right to act on appearances even though the defendant’s beliefs may have been mistaken. It is for you to decide whether the defendant’s fear of immediate danger of death or serious bodily injury was reasonable and would have been felt by an ordinary person in the same situation.

In his trial testimony, Slager told the jury that in the struggle that occurred just before the shooting, Scott had taken the Taser from Slager and tased him, and appeared ready to use it against him again. He said, “In my mind was fear. I was scared. With everything leading up to this . . . it was total fear that Mr. Scott was coming toward me.”

Scott, of course, wasn’t coming at Slager when Slager fired, and Scott didn’t have the Taser. Slager later planted the Taser near Scott’s body. Moreover, the prosecution pointed out that Slager hadn’t told fellow officers that his Taser had been used against him, and he initially said that he had put his Taser in his holster after handcuffing Scott. Slager countered by claiming that he believed that Scott still had the Taser when he opened fire.

Ultimately, the individual jurors had to decide whether they believed Slager.

Ultimately, the individual jurors had to decide whether they believed Slager — whether they believed that his professed belief was reasonable in light of all the available evidence. Apparently, at least one juror (and possibly more) did. It’s not the conclusion I would have reached based on my understanding of the evidence. I don’t believe that a “prudent person of ordinary firmness and courage” would have believed his life was in danger when Scott was running slowly away. With Scott retreating, Slager had time to make a correct judgment about the level of threat.

But that brings me to the next point — juries can be wildly unpredictable. It is entirely possible that one of the jurors was racist. There are racists in this world, and they do sometimes end up on juries. It is also possible that one or more of the jurors was simply unreasonable or irrational. Experienced trial lawyers can fill an afternoon telling crazy juror stories. I’ve worked on cases where the jurors later reported that their deliberations went off on the wildest of tangents. Then there are the people who carefully consider exactly the same evidence you do, think through the facts and law rationally and reasonably, and then come to conclusions that will confound and confuse you.

Never forget that juries know simultaneously more and less about cases than critics do. Because they’ve seen all the admissible evidence and have seen witnesses react under pressure, they’re intimately familiar with all the facts they’re permitted to know. At the same time, however, they’re barred from reading or considering any outside commentary, and barred from considering (or typically even hearing) inadmissible evidence even if it’s relevant, and they don’t hear the vast majority of the lawyers’ arguments about the case. Reporters and members of the public see all these things, and it inescapably colors their conclusions.

#related#Reasonable rules and virtuous systems can sometimes yield unjust results. We can’t fairly ask police or civilians who claim self-defense to have a God’s-eye view of the facts when they’re locked in a struggle and reacting in the moment. Moreover, no one should think that judges will always yield better results than juries. There is no foolproof method of dispensing justice, there are only good-faith efforts, made by fallible people. In Walter Scott’s case, it looks like justice has been delayed. We don’t yet know if justice will be denied.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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