On brink of mistrial, jurors opt to try again to reach verdict in Michael Slager case
On the brink of hopelessness that their deliberations would end without a verdict, jurors stepped back from their impasse Friday, resolving to discuss further whether a white North Charleston policeman committed a crime when he fatally shot Walter Scott, a black man.
They sent notes to the judge throughout the afternoon, at a time saying they were deadlocked. Their messages pointed to a lone holdout, a juror who refused to convict the former patrolman, Michael Slager, of either murder or manslaughter. There are 11 other jurors. The jury's other option is acquittal.
Whatever their decision, it must be unanimous. But through nearly 18 hours of deliberations, they still had not found one. The judge was prepared to declare a hung jury and order a mistrial.
Their desperation was apparent, as the holdout wrote to the judge, sidestepping the usual procedure that tasks the jury's foreman — a sort of spokesman — with such communication. The resulting letter was a rare look into the closed-door workings of a jury grappling with a case that the whole world is watching.
“I regret to say we may never reach a unanimous decision,” the holdout juror wrote, a sentiment echoed in other notes from the foreman.
The juror seemed resolute, yet conflicted in the letter that the judge read in the courtroom.
“We all struggle with the death of a man,” the juror wrote. “My heart does not want to have to tell the Scott family that the man who killed their son, brother and father is innocent. But with choices, I cannot and will not change my mind.”
By the end of the day, the judge brought the jury back into the courtroom that was filled with loved ones of Scott’s and Slager’s and with journalists, community advocates and police officers, many of whom fully expected the trial to be ended without a verdict. But asked if more deliberations would help, the foreman said yes. Exhausted, they chose to return Monday and start fresh with a weekend of rest.
Slager, 35, huddled with his attorneys and talked after hearing news of the jury’s dilemma. The former lawman's family sat quietly in the wooden pews behind him.
A team of prosecutors looked ahead, chatting occasionally. Among Scott's family members and the community advocates who came to the downtown Charleston courthouse to support them, many put their hands to their foreheads. Some closed their eyes, lifting their faces toward the ceiling.
Outside, cameras from national TV networks and cable news stations crowded in a courtyard. Evening newscasts featured the scene on live television. Anthony Scott, one of Walter Scott’s brothers, stepped into the fray, pointed a finger to the sky and praised God.
“It’s been a long day. It’s been a tough day," he said. "But it’s not over."
As the judge asked the jury twice if it was deadlocked, Slager’s lead attorney, Andy Savage, repeatedly sought a mistrial. The judge himself noted a past case that the S.C. Supreme Court tossed out because jurors said further deliberations wouldn’t help. They were ordered to come back on another day, when they reached a verdict.
Savage also voiced concerns that the juror refusing to vote for a conviction in Slager’s case would feel coerced by his fellow panel members. But the defense motions were denied.
"It's been that way for 18 months," Savage said, declining to comment further. "It's just another day."
The presiding circuit judge, Clifton Newman, said a mistrial would not be appropriate, given the jury’s willingness to keep working. But he acknowledged the difficulty of the predicament.
“We have a situation,” he said. “Obviously, it doesn’t occur often.”
Robby Robbins, former 1st Circuit solicitor, said the issue could fuel an appeal if Slager is convicted.
“Saying that they were deadlocked and (going) back in for just a little while and then asking off for the entire weekend, that just doesn’t happen all the time,” Robbins said. “Maybe they’ll all go home and think about it and come back with a fresh perspective on Monday and figure it out.”
'It will not change'
The jury first announced its trouble after lunch early Friday afternoon.
Its members were nearly 13 hours into their deliberations and had already asked three questions of the judge when the foreman, who is black while the rest of his cohorts are white, handed a court official a note.
"It is clear that jurors will not be able to come to consensus," Newman said in quoting the message.
They had prefaced it with a note 12 minutes earlier that sought a copy of testimony from Feidin Santana, one of the 32 prosecution witnesses who had taken the stand in the month-long proceeding. Twenty-three people had also testified in Slager’s defense.
But in a follow-up, the jurors said it wouldn't matter.
"If we do listen to this," their note said of Santana’s account, "it will not change based on (the) juror."
In a procedure known as an “Allen charge,” Newman implored the jurors to rethink their views, for any jurors in the minority opinion to reconsider their fellows’ takes, and poll themselves a final time. But he said they must stand fast to their beliefs unless they're convinced otherwise.
"Every one of you has the right to your own opinion," he said. "You should not give up your firmly held opinion just to be in agreement."
The holdout juror wrote the letter in the mid-afternoon, saying, "I cannot in good conscience consider a guilty verdict." It was accompanied by a note from the foreman: "It's just one juror that has the issues. ... That juror needs to leave."
'Supposed to struggle'
The judge had refused earlier Friday to answer a question from the jury about the difference between "fear" and "passion,” two elements central, respectively, to self-defense claims and the manslaughter charge.
But Newman was not bound by law to answer, and he said that this one is so entwined with the issue at hand that answering it would amount to revising the jury's deliberation instructions. He told them to press on, and they did — for a few more hours before issuing the first notice of their dilemma.
Many legal experts agreed with the judge’s decision, saying any effort to define the terms could be problematic upon appeal of any conviction.
"We can see, perhaps, what they're struggling with,” Newman said, “but they're supposed to struggle with it.”
While the question showed that some jurors had focused on manslaughter, the lesser of the two charges, the judge cautioned about reading into it any further.
Murder carries a higher standard that required prosecutors to prove some sort of malice, or ill will, in Slager's mind when he pulled the trigger. Manslaughter is a killing in the "heat of passion," or uncontrollable emotion, after the killer is somehow provoked.
Fear is also a common expression of a self-defense claim; Slager said he was in "total fear" after Scott took his Taser during a fight and turned it on him. But precedent in South Carolina also sees fear as a component of passion, though it does not solely make up the proof needed for a manslaughter conviction.
Slager stopped Scott's car April 4, 2015, for a broken brake light. Scott ran, and Slager ran after him. When Scott yanked away his Taser in the confrontation that followed, the former lawman testified this week, Scott came toward him twice.
But Santana started filming them when Scott broke free. His video showed Scott turn and run away again. Slager opened fire, hitting Scott with five of the eight shots.
Slager was fired and arrested on a murder charge three days later, when the bystander's video surfaced.
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