The announcement last week of a “global plea agreement” in which Michael Slager resolved both his federal and state criminal prosecutions was surprising. Readers may recall that Slager is the former North Charleston police officer who was caught on video killing a 50-year-old man named Walter Scott on April 4, 2015.
Slager is white; Scott was black. Scott was unarmed and his crime was that one of the brake lights on his car was out. He ran away when Slager pulled him over. Slager gave chase, caught up with Scott, tased him, and knocked him to the ground. Scott got up and ran away again. Slager drew his gun, spread his feet in a stable shooter’s stance, took careful aim, and shot Scott five times in the back from 50 feet away.
Slager then picked up his Taser, carried it over to Scott, and planted it next to the dying man. He handcuffed Scott’s hands behind his back, stood over him, and watched him die. He made no attempt to offer any first aid. Finally, he lied about what happened, saying that he shot Scott during a struggle for the taser.
In case you had forgotten the incident, you can watch the vimeo here.
In June 2015, the state charged Slager with murder. The case went to trial in November 2016, and back in December, the jury hung (meaning the jurors could not agree on a unanimous verdict). News accounts of juror interviews suggested that the split was 11-1 or 10-2 for conviction on at least the lesser-included offense of manslaughter.
The jury foreman (the sole black juror) said that there was one juror who simply refused to consider convicting Scott of anything. When asked to elaborate, he demurred, saying “I’ll leave it at that.”
The specter of race loomed large, obviously, over the shooting, the trial and the jury deliberations.
While the state case was pending, the federal government charged Slager with violating Scott’s civil rights (18 U.S.C. section 242) along with obstruction of justice (18 U.S.C. section 1512) and using a firearm to commit a crime of violence (18 U.S.C. section 924).
The federal case had been on hold pending the verdict in the state case. Now, when a case ends with a hung jury, the court declares a mistrial, and sets the case for a retrial. Most observers, myself included, assumed that the state would retry Slager, and that he’d be convicted. He shot Scott five times in the back from 50 feet away on camera, for God’s sake.
Then, this week, rather than retry the state murder case, the State agreed to dismiss it entirely in exchange for Slager pleading to a single federal civil-rights charge.
The plea agreement is strange and troubling, and I want to explain why. Let’s start with the plea agreement itself. It’s available here.
Take a look and read along. In the appendix, I list specific features that I find unusual. You can read them first, or wait to the end.
Let’s start with the big-picture questions.
1.Why on Earth Did South Carolina Agree?
Say you’re a prosecutor. You have a high-profile murder case. The murder was caught on video, in broad daylight. The defendant calmly shot the unarmed victim five times in the back as the victim was running away. The defendant, who didn’t know that his actions were caught on video, then lied about the facts and planted evidence at the scene.
Your office deliberates, decides it’s a murder case, charges it, and takes it to trial. The jury hangs; the split was, according to news reports, 10-2 or 11-1 for conviction. Prosecutors are not in the habit of just dropping hangers. Call any prosecutor in the country, right now, and ask: you just hung 10-2 for conviction. Would you retry? I challenge you to find a single “no.”
So why did South Carolina just drop this one? Was the state afraid of getting an acquittal on retrial? No, I very much doubt it. Watch the video: Walter Scott ran away from Michael Slager. When Scott was 50 feet away, Slager calmly pulled his gun, took a careful shooter’s stance, and shot Scott in the back five times. No prosecutor worth his or her salt would be afraid to take that case to trial.
Leaving aside all the other reasons to stick with this case—your community is up in arms, trust in the police is dangerously eroded—there’s the simple fact that this is a case in which the facts and law support a murder charge. You try it through to a verdict. If that takes a retrial, so be it. You do not drop it out of fear that you’ll draw a racist juror who refuses to convict a white police officer. And you do not drop it simply because the guy agreed to plead guilty to federal civil-rights charges.
(If it helps to get the point across, try reversing the facts: You’re a prosecutor and you have a state murder charge against a defendant who shot a cop in the back from 50 feet away, and you hang the first trial. Is there any chance that you’d drop the case just because the defendant agrees to plead guilty to a federal gun-possession charge? No, there is not. Not a snowball’s chance in hell.)
So what changed between December 2016 and April 2017, to make the state willing to just toss aside its murder case? Well, we have a new administration in Washington. But it’s not clear to me why that should have made the difference.Obviously, the new President and his new Attorney General are no friends of the police reform movement. They have ordered the DOJ to reduce federal oversight of police abuse, have terminated a DOJ scientific advisory panel on forensic evidence, and have tried to scuttle existing consent decrees with problem police departments.
But so what? Why should that matter to the state of South Carolina? I want to know who made this decision for the state. I don’t believe that in our federalist system, a sovereign state would dismiss a murder charge to curry political favor with a new administration in Washington. I hope the state gives us a public explanation, telling us who made the decision, and why.
2.Why Did the Federal DOJ Agree?
It’s not clear to me that this is a great deal for the federal government either. A guilty plea is a guilty plea, you might say. Well, no, not really. You don’t give away the store just to get a plea. And this one is weird. As I said, I listed some specific oddities at the bottom of this essay. But let me focus on three here.
First, it leaves sentencing completely open, with no agreement about base offense level, adjustments, how it’ll be calculated, what the ranges are for each side to waive appeal, etc. As readers know, federal sentencing is governed by the Federal Sentencing Guidelines, which is a detailed manual for calculating sentences. Virtually all federal plea agreements require the defendant to agree to some basic framework for how the sentence will be calculated. This one doesn’t have anything.
I have worked on hundreds of plea agreements, from both sides, and I don’t recall doing one that left the calculation completely open. Obviously, you can write them that way—there’s nothing illegal about that—but it’s odd. The point of a plea agreement for the government is that you’re getting some predictability about the sentence and avoiding the uncertainty of a trial. In exchange, you give something up: you drop additional charges, or agree to a lower sentence than what you’d ask for after trial.
Here, the government is giving up the state murder prosecution, the federal obstruction charge, and the federal gun charge, and gets no agreement from the defense as to the parameters within which the sentence should be calculated. I can tell you that in my old office, if a defense attorney called up and said, “I want a plea agreement where you drop three of the four charges, including the most serious one, and I get to argue whatever I want at sentencing,” the response (from every AUSA in the building) would have been: “And I want a pony.”
Second, the “factual basis” section of the plea agreement makes no mention of mens rea whatsoever, except to say that Slager acted “with the intent to do something that the law forbids.” There’s not even any admission that he intended to kill Scott.
Come on, DOJ—if you think this is a murder case, treat it as one: Make Slager stand up and say in open court: “I shot Walter Scott in the back and I intended to kill him.” If you don’t think it’s a murder case, then have the guts to come out and say so.
Third, I want to emphasize one more time that the provision requiring the state to dismiss the murder charge is weird. The state is not a party in the federal case; there is no legal interest or benefit for the federal government in the state dismissing the charge. Is it conceivable that the federal prosecutors were worried about an acquittal? Did Slager’s attorneys play chicken with the feds, and dare them that they couldn’t get a civil-rights conviction in South Carolina?
And were the feds so worried about their case that they decided to take any plea they could get?
No, I refuse to believe that. Clearly the defense didn’t think that a civil-rights acquittal was a slam dunk, or they wouldn’t have pled their guy to a charge with a potential life sentence.
So why? Why not do what the feds normally do, and postpone federal proceedings until the end of state trial? Then if the defendant is convicted, you have the option of either deciding that justice has been done, and dismissing, or proceeding on the federal charges as well. And if the defendant is acquitted, then your federal trial is a fallback for seeing that justice is done. (That’s what happened in the Rodney King case.)
Why agree to a deal that torpedoes the murder case? The state case should not have been part of this deal. As I said, I just cannot believe that the state called up the U.S. Attorney, and said “Please cut a deal so that we can drop this murder case.” There had to have been some push from the feds to get South Carolina to join.
The depressing theory is that this is naked political theater, a chance for the Trump Administration to give the finger to the Black Lives Matter and police reform movements. I truly, truly hope that’s not it.
Once again, to the state: Please give the public a full and truthful explanation of the decision-making process that went into this.
3.Did Slager Have Some Sort of Leverage?
This is a great deal for Slager; he got the state murder charge dismissed. The deal is so good for him that you have to ask whether he had some sort of leverage to make it happen. I have a tentative theory about what that leverage might have been. It’s at least possible that the State was worried that the murder charge might be dismissed.
Here’s why. At the close of evidence in the state trial, the state moved (over Slager’s objections) for a lesser-included instruction on manslaughter (SC Code § 16-3-50). A “lesser-included” instruction is when the court tells the jury that if they vote to acquit the defendant on the charged crime, they can still convict on a lesser crime. Defendants sometimes roll the dice (as Slager did) on an “all or nothing” strategy.
The Court ordered the jury not to deliberate on manslaughter unless they unanimously agreed that Slager was not guilty of murder. The jury subsequently sent out several notes that—the defense argued—arguably indicated that they were thinking about manslaughter. The defense argued that the notes meant that the jury had already unanimously rejected murder.
Slager’s attorneys made that argument in a motion in state court to dismiss the murder charge. The motion is still pending. Is that motion, then, maybe the leverage Slager had?
Maybe. On the one hand, the jury questions are pretty weak tea. For example, one note asked: “Why was manslaughter offered as an alternative?” As the judge pointed out in court, the fact that the jury sent that note does not entail that the jury had unanimously decided to acquit on murder. The note could be a single juror’s question, and/or have little or nothing to do with the substantive deliberations. Juries send all kinds of notes.
Moreover, the judge also pointed out, if the jury in fact unanimously voted to acquit on murder, but were split on manslaughter, they could have returned their verdict that way (“Murder: not guilty; Manslaughter: deadlocked.”). They didn’t; they came back and said they were deadlocked, period.
On the other hand, though, the jury foreman went on TV and told the nation that the jury “decided he wasn’t guilty of murder.” The interview is short, but pretty definitive, it seems to me. Watch it for yourself: It sounds like the foreman is saying the whole jury rejected the murder count.
Now, does the foreman’s TV interview mean that, as a matter of law, Slager couldn’t be retried for murder? No, of course not.
The jury did not return a verdict on the murder count, and post-trial juror interviews are almost never admissible evidence. I would predict that the trial court would deny the motion and order a retrial. But still… the judge hasn’t ruled on the motion yet, and the “implicit acquittal” argument definitely creates a viable appellate issue. So if you’re the state, is that why you jump into the federal plea agreement? Because you’re afraid that an appellate court will later find that the jury implicitly acquitted Slager on the murder count, thus precluding retrial?
I’m still not buying it. I know prosecutors. I used to be one. I talk with them almost every day. I have prosecutor friends and former students all over the state. I just don’t buy it. If you’re a prosecutor with what you believe is a righteous case, you try it. You don’t wilt and dismiss at the first sign of a potential appellate issue. Every trial creates appellate arguments. If you think you have a righteous murder case, you try the case until you get a verdict—guilty or not guilty—on the murder charge.
Crime Report readers will be aware that Sessions, taking his cue from Trump, is trying to scuttle most if not all of the Civil Rights Division’s police oversight cases. He’s ordered a “review” (read: termination) of pending police consent-decree cases, and he even sent a lawyer to Baltimore to try to undo the already-agreed upon consent decree there.
Sessions and Trump have sent many messages that the federal government is getting out of the business of investigating police brutality and racism. What better forum to do that than in than the Slager case, probably the most blatantly unjustified police shooting of the past five years?
What About Sentencing?
As noted, the plea agreement leaves the guidelines calculation open, so to evaluate the possible sentence, we have to do the calculation ourselves. It’s pretty straightforward. You look up the charged offense (18 U.S.C. § 242), and you get 2H1.1 as your guideline. Section 2H1.1(a) tells you to use the base offense level applicable to the underlying criminal act. Then 2H1.1(b) tells you to increase by 6 if the act was committed under color of law (which it was). Then you take off 3 for acceptance of responsibility.
So what’s the underlying act? The government says it intends to ask the court to use the guideline for second-degree murder (section 2A1.2). That’s a base offense level of 38. Add 6 and subtract 3 and you’re at level 41: 324-405 months. (324 months is 27 years.) The government also says it wants to ask for the obstruction-of-justice adjustment, which would add another 2 levels. That would take us to level 43, which is life.
But the plea agreement does not specify any agreement by the parties as to what the predicate offense (and thus the base level) should be. Slager will no doubt argue vigorously that the Court should use manslaughter, not murder, for the reasons given above.
That would make a huge difference. If the judge agrees with Slager, and uses the manslaughter guideline, and not the murder guideline, to set the base level, then we’re at a base level 29 (2A1.3). When we add 6 for “color of law,” and subtract 3 for acceptance, we’re at a level 32. At Criminal History Level I (where Slager is), that’s 121 to 151 months. So a low-end sentence would be ten years and one month, of which he’d do 80%. Meaning he’s out in 96 months, or eight years.
Slager could even go further, and argue that his conduct was merely “reckless,” and thus the underlying predicate offense should be involuntary manslaughter, and the base offense level should be only 18. 18 plus 3 is 21, which gets you a range of 37-46 months. Add 3 levels for obstruction and you’re still only at 51-63 months.
I think it’s unlikely that the court would go all the way down to involuntary manslaughter. But Slager could certainly argue for it—the factual basis, recall, does not include any admission that he intended to kill Scott. But I think voluntary manslaugher is a real possibility. That means there’s a real possibility that we see a 121-month sentence.
Under the plea agreement, the State is bound to dismiss the murder charge when Slager pleads—not when he’s sentenced. So if the federal sentence is low, the State will be powerless to take any steps to get a stiffer sentence. I don’t understand why the state agreed to that.
Until some South Carolina public official comes forward and says otherwise, this is a crime that the State of South Carolina believes was first degree murder, punishable by life in prison or execution. If the State thought that a life sentence, or death, was appropriate in its murder case, and the judge only gives Slager ten years on the civil rights case, then the State has thrown away any opportunity to retry the murder case and get the justice it believes it is due.
Is the State willing to say publicly, right now, that it thinks eight years is enough time for this crime? If not, they shouldn’t have signed onto this deal.
Which makes you wonder how committed the state government was to the Slager prosecution. I’m sure at some point we’ll get some inside leaks about the decision-making process in DC and South Carolina. Time will tell.
Editor’s Note: For ‘eight oddities’ worth noting in the plea agreement, click on the attached
Caleb Mason is a partner at Brown, White and Osborn in Los Angeles, a former federal prosecutor, and a regular contributor to TCR. He welcomes readers’ comments.