In a courtroom full of green ties, lead defense attorney Andy Savage began last week’s St. Patrick’s Day hearing by wishing a sardonic “top ‘O the morning” to U.S. District Judge David Norton. Drawing a polite chuckle from those seated in the courtroom, Norton responded by saying it was better to have the attorneys in the courtroom on a holiday than the following morning. It was just after Thanksgiving last year that Slager took the stand during his state murder trial to provide his account of the shooting of Walter Scott. Fleeing from a traffic stop for a non-functioning taillight, Scott was shot five times in the back by Slager, who claimed that he feared for his life after Scott seized control of his Taser. Scott would draw his last breaths the day before Easter, lying facedown in an empty trailer park as ants swarmed his body.
Since 2003, the Bureau of Justice Statistics has maintained a count of potential deaths that occur during arrests by a state or local law enforcement agency in the United States. Between June 2015 and March 2016, that number totaled almost 1,400 deaths across the country. Breaking down the more than 400 arrest-related deaths identified in the three months following Scott’s death, the agency found that 64 percent were deemed homicides, which includes justifiable homicide by law enforcement officers, with 18 percent resulting from suicides and 11 percent deemed as accidents. Of those 425 deaths taking place during June, July, and August 2015, seven occurred in South Carolina. A 2016 investigation by the Pittsburgh Tribune-Review
found that over the previous 10 years federal prosecutors only pursued charges in 4 percent of cases where law enforcement officers faced allegations of civil rights violations.
Finally laying to rest any uncertainty regarding the Justice Department’s efforts to pursue a conviction against Slager under the new presidential administration, federal attorneys assured Judge Norton last week that two administrations fully support the prosecution and intend to go forward with the case. During the Obama administration, 25 investigations into police departments were opened by the Justice Department, but current Attorney General Jeff Sessions indicated earlier this year that the Department of Justice would “pull back” on suing law enforcement agencies for civil rights violations. While Slager’s state trial focused on the charges of murder or voluntary manslaughter, the former officer’s federal trial stems from an indictment alleging deprivation of rights under the color of law, use of a weapon during the commission of a violent crime, and obstruction of justice. Slager faces a maximum penalty of life in prison.
Much like the previous state trial, Slager’s attorneys again attempted to have eyewitness video of Scott’s shooting excluded from evidence, arguing that the recording was incomplete and the only perspective jurors should consider is that of the officer. Prosecutors opposed the defense’s motion to exclude the video, saying that the video not only shows that Slager shot an unarmed man, but also refutes statements he made shortly after the shooting when he claimed to have provided CPR to Scott. Reviewing the cellphone video, the circumstances of the struggle that occurred immediately before the shooting remain unclear. Judge Norton denied requests from the defense to exclude the video.
With Slager’s federal trial set to begin May 15 in a Charleston courthouse directly across the street from where his mistrial was declared, several key issues related to the case remain unresolved. A future hearing has been scheduled to examine evidence surrounding statements that Slager made to SLED investigators just days after the shooting before learning of the existence of the eyewitness video. Slager provided his account of the shooting to investigators on April 7, 2015, while sitting in the office of his former attorney, David Aylor. Attorneys for the defense now ask that these statements be excluded from the trial on the grounds that SLED agents failed to inform Slager’s attorney about the existence of the video.
“They have the right to mislead Slager, but not the lawyer he had been told to rely on,” Savage told Judge Norton last week.
Prosecutors responded by saying that Slager’s interview with investigators was voluntary and had he been informed about the existence of the video at that time, he would have either refused to provide a statement or “lied differently.”
During a meeting shortly following this initial round of questioning, Slager and his former attorney were shown the video of the shooting. According to Slager’s current legal counsel, Aylor then told Slager that he would no longer represent the officer. As a part of their request to exclude the SLED interview with Slager from evidence in the federal trial, the former officer’s attorneys filed copies of email exchanges that took place between Savage and Ninth Circuit Solicitor Scarlett Wilson, as well as Aylor.
In an email exchange from October, Wilson, the lead prosecutor in Slager’s state trial, wrote that SLED agents may have been “intentionally vague and perhaps misleading” when initially asked about the case by Aylor, adding, “They told Aylor that his client needed to tell the truth.”
In response to Wilson’s message, Aylor wrote to Slager’s current attorneys, “Peterson wasn’t vague, she lied.”
This matter along with several other undecided issues are set to be discussed during an upcoming hearing scheduled for April 4, 2017 — two years to the day since Walter Scott was killed.
On the morning of May 9, in a Columbia courthouse, it will begin again. Individuals from all over the state will be sworn in and questioned as to why they can or cannot serve on the jury tasked with determining the fate of Michael Slager. While a state jury was unable to arrive at a unanimous decision regarding the guilt or innocence of the former North Charleston police officer last December, perhaps 12 new arbiters culled from throughout South Carolina can provide some form of resolution.