A Mistrial is Not an Acquittal

There are many people who are angry, disappointed and upset by yesterday’s mistrial. I am disappointed former Charleston, SC patrolman, Michael Slager was not found guilty for the murder of Walter Scott. Yet I am hopeful for a number of reasons and concerned for others.

1) A Mistrial is Not an Acquittal — In the case of Mr. Scott, this trial did not leave us with the notion his death was justified. Michael Slager’s actions were not absolved and his conduct was not determined to be appropriate. A mistrial simply means there wasn’t a unanimous decision by the jury. It’s a high burden and only 2 states allow for dissent amongst the jurors in non-death penalty criminal cases (Oregon and Louisiana allow criminal convictions by a vote of 10 to 2). However, we must keep in mind that a mistrial doesn’t mean Michael Slager is innocent.

2) It only takes one — Any defense attorney will tell you it only takes one juror to “win” a case. While Slager didn’t win in that the charges have been dropped, a defense attorney will take a mistrial over a conviction any day of the week. Especially a mistrial when there is only 1 holdout. 1 holdout out of 12 is not a mandate of innocence.

3) Crisis of Conscious? — It appears on Friday the jury was split 11 to 1 in favor of a murder conviction. The one holdout sent a letter to the judge indicating their unwillingness to find guilt on any charge: “I cannot in good conscience consider a guilty verdict.” This is problematic for a number of reasons.

First and most importantly, given the language in the note the juror was already pre-disposed to not find the former officer guilty. I’m sure during jury questioning (voir dire) jurors were asked if they were “capable” of finding the officer guilty. Capable didn’t mean you had to, but you were open to doing so if the evidence warranted a conviction. The language in the note leads me to believe otherwise.

Secondly, if in good conscious the juror could not “consider” a guilty verdict, then the honorable thing to do would have been to admit during voir dire he/she may have a problem convicting a law enforcement officer. I’m 100% sure the prosecution would have gladly used a strike on that juror and relieved him/her from their “crisis of conscious.”

Lastly, the “conscious” stand of one juror nullified the decision of 11 other jurors. The burden of proof in a criminal trial is beyond a reasonable doubt. That burden has greater weight when you’re faced with a trial involving the taking/ loss of life. It becomes even more complex when the accused is in law enforcement.

4) Try the Case You Have, Not the Case You Want — 9th Circuit Solicitor Scarlett Wilson “tried the case she had.” She tried it so well, by Friday she had 11 jurors on the side of a murder conviction. There are many who feel prosecutors will not go all out against law enforcement in police shooting cases because of the intimate relationship between prosecutors and law enforcement officers. Solicitor Wilson could have easily gone for a manslaughter charge, but given the evidence she tried the case she had.

Things got muddy on Monday when the judge allowed the jury to consider the lesser charge of manslaughter because considering the lesser charge created doubt and doubt is the friend of the defense. She had a murder case. She tried a murder case. But for the “crisis of conscious,” she would have won a murder case.

5) Truth Behind the Dangerous Narratives — By Friday, Solicitor Wilson convinced 11 jurors (10 white) of Slager’s guilt. These jurors were willing to face potential scorn or ostracizing for delivering a verdict in opposition to law enforcement. Given today’s divisive climate, they were willing to render a verdict based on the evidence they heard and not on the potential blowback they might receive.

In my opinion, that is incredibly encouraging. If you listen to the rhetoric and at times vitriol on talk radio and news outlets, the divide on police shootings runs explicitly down racial lines. They would have us believe African Americans are the only ones in opposition to police shootings involving unarmed African American men, women and children.

The narrative often peddled by talking heads and “experts” is: African-Americans who speak out against police violence are against “all” law enforcement officers. Their voices undermine law enforcement.

The converse narrative is: Whites are in favor of all law enforcement, regardless of their actions or behavior. So in their support of law enforcement, they are also in support of police shootings.

This all or nothing narrative is divisive, destructive and honestly hinders the ability of our country to live up to its highest ideals. More than anything people want accountability. They want people in authority to be held to higher standards of care because of the impact of their actions.

This is why it’s so troubling when District Attorneys fail to being charges against police officers. There are often questions of fact that need to be determined in these shootings. However, it’s becoming more and more apparent that jurisdictions are heading off the march for justice by either not filing charges or half-heartedly bringing a charge before a grand jury. This unwillingness to bring these actions to the light of day hinders the job of law enforcement and it compromises their standing in the communities they serve. We all want transparency and accountability and that is what will create a better relationship between law enforcement officials and all communities, regardless of race.

The jurors sat in courtroom. They weighed the evidence. They listened to the testimony. 11 of them decided to render a verdict based on the facts that were presented. The 12th probably held onto a non-existent, moral edict that officers cannot be guilty in shootings.

Am I disappointed? Yes. But a mistrial is not an acquittal.

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