The jury foreman, the only black person on the jury, got right to the point: “It’s just one juror that has the issues.” His note was to tell Judge Clifton B. Newman that the jury was deadlocked. Hung is what we call it. They were hung on Slager’s killing of Walter Scott. How could this be possible?
But confusion reigned in the courtroom as the jury wavered about whether it was hopelessly deadlocked about the killing, which was recorded on video and became a symbol of the nation’s heated debate about race and policing.
Slager’s lawyer, Andy Savage, did his best to present a defense that Slager feared for his life. It’s the go-to defense for cops, although there is an industry dedicated to manufacturing excuses for cop shooting with some tricky explanations available to police and no one else. But Savage stuck to the tried and true Graham v. Connor defense.
Mr. Slager, whom North Charleston fired after the shooting, testified that he had become involved in a physical struggle with Mr. Scott over his Taser device, leaving him in “total fear” and causing him to open fire in a lot behind a pawnshop in the city of about 108,000.
“He didn’t shoot him because of the brake light,” Andrew J. Savage III, Mr. Slager’s lead defense lawyer, said of the former officer during his closing argument. “He shot him in fear of his life.”
This was palpable nonsense. The video showed Slager pump five bullets into Scott’s back as he was running away. It would have been equally plausible that Slager killed Scott because of voodoo or space aliens, it was that ridiculous. Except to one juror, who wrote a note of his own.
What it means is clear and unclear. The juror says he* “cannot in good conscience consider a guilty verdict.” The juror is entitled to hold dear to his belief, even if the other eleven jurors disagree, and, indeed, if that is his sincere belief, then it is his duty to do so. But it’s inexplicable how that could be in this case.
Is it because Slager was a cop? Is it because Scott was black? Is it because the prosecution failed to prove its case beyond a reasonable doubt?
Slager was charged with murder, requiring the element of “malice aforethought” in South Carolina. The judge also submitted the lesser included charge of voluntary manslaughter. Absent evidence of purpose that’s almost always missing in a cop shooting case, murder is a stretch. Manslaughter, on the other hand, should be a slam dunk.
In advance of trial, Elie Mystal contended that it wasn’t possible to find twelve jurors in South Carolina who would convict a cop for killing a black man. Elie has been hurting lately, and prone to hyperbolic rants. But then, it’s inconceivable that a juror in this trial wrote this note. The evidence here is overwhelming. It’s on video. It doesn’t get any more conclusive than this, and yet, here was the twelfth juror saying he just couldn’t do it. He just couldn’t convict.
In response, Elie wrote a line that speaks volumes:
It’s your veneer of civility that is being stripped away.
What stops a person, especially a black man, from pulling out a gun and killing a cop? It’s the belief that the social contract, civility, the platitude of “protect and serve,” will allow him to survive the encounter. And if he does not, it’s the belief that the criminal justice system will work and convict the cop for the killing as it would any other killer.
Without this belief, Walter Scott’s only option would be to kill Michael Slager first. Every black man stopped by a cop would have no option but to do the same. No person has a duty to allow himself to be murdered for no reason by a cop. No society can trust a system that would allow this. The alternative is open war, kill before someone kills you.
Given the notes, Judge Newman could have declared a mistrial, a hung jury. He didn’t. He gave them an Allen charge instead:
Shortly after lunch on Friday, the jury sent a note indicating it was at an impasse, prompting Judge Newman to deliver what is known as an Allen charge, a set of legal instructions intended to break deadlocks during deliberations.
“You have a duty to make every reasonable effort to reach a unanimous verdict,” the judge told the jury of seven men and five women as he read the Allen charge, named for the 1896 Supreme Court case that enshrined such guidance.
“The majority should consider the minority’s position, and the minority should consider the majority’s position,” Judge Newman told the jurors before ordering them to resume their deliberations in hopes that they would come to one of three conclusions: a conviction for murder, a conviction for manslaughter or an acquittal.
There are hard Allen charges and soft ones. The hard charge pushes the jurors as far as possible to reach a verdict, and is often deemed coercive in forcing a recalcitrant juror to let go of his sincerely held belief. This was, from reports, a tepid charge, perhaps out of fear of creating reversible error by pushing too much for a verdict from the one juror who refuses to convict.
Perhaps Judge Newman wanted to scream at the holdout, “What the hell is wrong with you, you blithering idiot? How can anyone be so insane as to not vote for guilt?” But that would produce a worthless verdict. At least he didn’t pull the plug. Not yet.
People need to believe in cops. It’s an irrational belief, borne of their own compulsion to make sense of the world, because if an otherwise ordinary police officer had a random killer hiding beneath his badge, there would be nothing to stand between our desire for safety and the insanity of random violence that could take our life, our children’s lives, for no reason at any moment. It would be like living in The Purge, and no one would ever be able to sleep at night if that was the case.
But as Elie says, the failure to convict in this case, with this evidence, rips our comfort blanket of civility from our clutches. Whether it’s because Walter Scott was black or Michael Slager was a cop isn’t clear. What is clear is that any result other than guilt in this case tells us the system is a failure and we are left to our own devices to survive.
*The jury is comprised of seven men, five women. Whether any of them identify otherwise is unknown, as is the preferred personal pronoun of the juror who cannot convict. I have used the pronoun “he” because I default to standard English in the absence of information to the contrary.