Defense attorneys for the North Charleston officer who killed Walter Scott want to tell jurors that Scott was cursing the police during a struggle with the lawman.
Their evidence is based on an expert’s interpretation of the sound featured in a video showing patrolman Michael Slager firing eight times as Scott ran away.
But the defense case revolves around what happened before the shooting, and the lawyers contend that Scott’s alleged words portrayed his animus toward law enforcement and could explain his conduct that drew the officer’s gunfire in self-defense.
The officer’s words, refined in other audio recordings, also support his account that Scott had gotten control of his Taser, the defense said.
“Let go of my Taser,” Slager said, according to the expert’s version, “or I’ll have to shoot you.”
Jurors, though, had not seen those words by Thursday, the second day of defense testimony in Slager’s murder trial in downtown Charleston. A judge revealed the language publicly in discussions about whether a defense witness would be allowed to feature the words in captions during a video presentation. The jury was not in the courtroom, and the judge, Clifton Newman, barred the phrases’ use, though lawyers could bring them up during closing arguments.
The development came as the defense narrative of Scott’s death and the earlier confrontation with Slager began to take shape. A witness posed other evidence, taken from an enhanced version of bystander Feidin Santana’s video, that showed Taser wires tying the men together, as the stun gun bounds behind the officer.
The jurors were set to return Monday after a three-day weekend.
'Perception is everything'
Former Houston police officer David Hallimore had set the stage for the defense Wednesday, describing how he removed background noise from audio recordings in police radio transmissions and Santana's video. The task was to isolate the men's voices.
His work captured Slager ordering Scott to get on the ground after Scott ran from an April 4, 2015, traffic stop along Remount Road. The officer reported that Scott fought back when he tried to handcuff the man.
Hallimore played the refined recordings, which were accepted as evidence, but for many listeners, they are not clear enough to confirm what else Scott and Slager said.
The jurors already had heard a suggestion of what the clips contained. In earlier questioning of prosecution witnesses, defense lawyer Andy Savage alleged that Scott had made a disparaging comment about police during the encounter.
Hallimore never was asked to say what he thought Scott and Slager were shouting, so when a different defense expert sought to use his interpretation in a video presentation Thursday, the judge declared the information hearsay and wouldn't allow it. Hearsay is evidence or testimony taken from a source and relayed by someone else.
The prosecution had used captions of Slager's words during its own witness' presentation earlier this week, so the defense argued that its own version should be permitted.
But 9th Circuit Solicitor Scarlett Wilson said it would be “extremely suggestive” for jurors to see the interpretation. Someone else might hear something different in the audio, she noted.
“It is completely unfair at this juncture for the jury to be shown that,” she said.
The judge’s ruling meant that a defense witness, forensic video analyst Grant Fredericks, had to remove the words from a presentation.
Fredericks, a former policeman who also teaches at the FBI National Academy, was hired by the defense. But he mentioned that he had just testified for Ohio prosecutors in former officer Ray Tensing's murder trial, which ended last weekend in a hung jury. The University of Cincinnati policeman who fatally shot a man during a July 2015 traffic stop said he feared for his life when the motorist’s car started dragging him. Authorities said video evidence contradicted that account.
When Fredericks was offered Thursday as a defense expert in Slager’s trial, he labeled as flawed a prosecution witness’ visual portrayal of how far Scott had distanced himself from Slager when the gunshots went off. The prosecution's diagram depicted a sequence of Scott’s positions at each shot, but Fredericks said it had been stretched out by 133 percent to fit a slide in a PowerPoint presentation.
The witness, Bill Williams, had acknowledged the mistake, but the defense on Thursday asked the judge to strike his testimony from the jury’s consideration because of the “very basic” error that misrepresented the shooting. The judge, though, didn’t agree.
“Perception is everything,” Fredericks said Thursday. “This is purporting something that didn’t happen.”
A view of the struggle
But the prosecution's measurement of the time and space between the men at each gunshot has yet to be disputed.
To drive home that point, Chief Deputy Solicitor Bruce DuRant used the defense witness to unreel a tape measure in front of the jury to 17 feet, the distance at the first shot, and to 55 feet, the point where Scott fell — almost the length of the courtroom. It was the second such display in as many days.
“The jury knows what 17 feet looks like,” Wilson added in defending her expert’s work. “That’s what the issue is.”
The defense, though, hopes to focus its case on what happened before that, during the struggle between the men.
Fredericks’ primary task was enhancing the eyewitness's video to make that clearer.
Examining the opening moments of the video frame by frame, Fredericks told the jurors that he could tell at one point that Scott had his arm “around the upper body of officer Slager.” Scott, meanwhile, is on his right side with his feet in the air. Fredericks said he couldn’t say what that meant.
When the men are standing again, Fredericks said the officer’s Taser is visible only when it’s near the ground. The device hits the dirt and bounces behind Slager.
“This video doesn’t provide us with any of the detail as to where it came from,” he said. "It cannot be tracked before this reliably.”
But the defense contended before the trial that the motion of Scott’s arms suggests he had thrown down the Taser. The locations of Slager’s hands, meanwhile, indicate that the officer didn’t have the stun gun, the defense said.
Fredericks paused the video when the Taser first appeared. In that frame, he testified, Slager’s right hand is reaching for his holstered pistol while his left hand is grabbing Scott’s arm. But the witness offered no opinion about what that meant.
A prosecutor who questioned Fredericks contended that the Taser “is moving in the same direction” as Slager’s leg. But Fredericks said he couldn’t say that either.
As Scott turns away and starts running, the video clearly shows Taser wires tethering the men together.
“They’re wrapped around the officer’s hand,” Fredericks said. “They obviously connect with Mr. Scott as well, so the wires are connecting both of them.”
While the first 12 seconds of the footage offer glimpses of the struggle, Scott and Slager are in the frame for only half that time.
Even as the defense hoped Thursday that they would focus on what happened during that span, the jurors again saw and heard the 2.7 seconds of Slager shooting at a man running away.