What Went Wrong in the Case Against Walter Scott's Killer?

Reformers and experts point to the makeup of the jury and a history of police escaping accountability in America.
December 7, 2016, 5:00am

On Monday, a South Carolina jury could not agree that a cop shooting a fleeing, unarmed man in the back multiple times from well over a dozen feet away was murder. After a weeks-long trial, days of deliberations, and prodding from a judge for jurors to reach a verdict, Michael Slager, the white former police officer who killed Walter Scott, escaped conviction—at least for now—via mistrial.

The killing took place on April 4, 2015, in the midst of a national conversation about police brutality and the role race plays in determining when deadly force is meted out against citizens. But unlike some high-profile shootings of black men by white cops, Slager's actions were captured in a video that seemed to make the case against him airtight. The jury's refusal to convict, coupled with an incoming US attorney general some fear will refashion the civil rights division of the Justice Department, casts a pall over the future of police reform in America.

So what went wrong?

One plausible culprit observers quickly latched onto is the makeup of the jury. With 11 white members and one black one, the group seemed oddly skewed in favor of the defense in a region with a history of racially charged trials. Now, lawyers can dismiss potential jurors "for cause" (for reasons like being biased or related to the defendant), or use one of a handful of "peremptory" challenges that don't require a reason for dismissal. But as Colin Miller, a law professor at the University of South Carolina explains, the Supreme Court ruled in 1986 that the one reason lawyers aren't allowed to dismiss people is their race.

So if potential jurors who said they would not be biased in such a high-profile case happened to be white—as they (almost all) were here—the state had to make do.

Even with a demographically favorable jury, at the outset of the trial, it was tough to divine how Slager's attorneys could push back against such a seemingly damning video. But among other things, the lawyers ended up filing some creative motions; one brought the jury out of the courtroom and to the scene of the crime, where the attorneys may have had some luck suggesting there was more to the video than met the eye.

"I cannot in good conscience consider a guilty verdict," an anonymous white juror wrote in a letter to Judge Clifton B. Newman on Friday. The juror added in his note, which was read aloud in court, that it was unlikely the unanimous consensus needed to result in a conviction would be reached.

According to Miller, the reason that the judge didn't immediately declare a mistrial then and there is because he could issue what's known as an Allen Charge. Essentially, it's a command for jurors to keep trying to reach consensus. The order is sometimes referred to as a "dynamite charge" or a "nitroglycerin charge" by critics who think it amounts to bullying or at least influencing the jury.

"There are these two competing schools of thoughts," Miller explains. "The state of South Carolina said the goal is unanimity, while other states have said that's not the goal, and that we shouldn't try to force square pegs into round holes."

In an attempt to balance those two philosophies, Miller adds, Judge Newman gave the jurors a little bit of time to reconsider, but ultimately didn't push too hard. By Monday afternoon, it was all over.

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For his part, Eric A. Johnson, a law professor at the University of Illinois, wonders why that lone juror wasn't dismissed given that other panelists reportedly suggested he was ignoring key evidence and testimony. Johnson pointed to the case against the right-wing militia's takeover of a wildlife refuge in Oregon earlier this year. One juror apparently said at the outset of deliberations that he was "very biased" because he used to work for the Bureau of Land Management and was ultimately replaced with an alternate.

Apparently, Johnson says, any bias in this instance wasn't as overt.

The jury ultimately failed to convict Slager of murder, for which they would have needed to agree that he acted with malice. But jurors also failed to agree he was guilty of manslaughter, for which they would have only needed to conclude the ex-cop was acting out of passion. Then again, that the case even went to trial is pretty remarkable––since 2005, thousands of people have been killed by police and only 78 of cops involved in those shootings have been charged with either murder or manslaughter; convictions remain extremely rare, according to the Washington Post.

"It saddens me, but I am not shocked," Howard Friedman of the National Police Accountability Project told the New York Times. "The fact that out of 12 people you would find one person so prejudiced in favor of police is saddening, not shocking, because I know that kind of prejudice in favor of police is out there."

For what it's worth, prosecutors in the Slager case have promised to try the cop again. South Carolina governor Nikki Haley, who was just nominated for a job as UN ambassador by President-elect Donald Trump, said she expects to see Slager back in court as well. If nothing else, her renewed call for "justice" suggests the case remains a relatively nonpartisan one.

That's good news for police reformers, as Slager still faces federal civil rights charges in a separate trial next year. Although the Department of Justice will have a new political boss and could vastly change its priorities under Trump, Professor Johnson, at least, can't conceive of the case being dropped entirely. The criticism would just be overwhelming.

"I guess its conceivable that a new prosecutor appointed by President Trump could make the decision to dismiss the prosecution," he said. "But it seems unlikely to me based on the basis of watching the videotape that anyone would think that would be an appropriate decision."

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