Michael Slager’s defense team on Tuesday used evidence not allowed during his murder trial in an effort to convince a judge that the former North Charleston officer felt threatened when he fatally shot Walter Scott.
An audio expert contended that an eyewitness video captured Slager shouting, “Let go of the Taser, or I’ll shoot you,” moments before the patrolman pulled his .45-caliber pistol and fired eight times. Slager has said he did so because Scott took the stun gun.
While the divided jury from Slager’s trial last year in state court heard the same recordings, a judge barred them from seeing captions containing the experts’ analysis of what Scott and Slager might have said during the April 4, 2015, encounter.
It’s up to U.S. District Judge David Norton to decide this week what evidence to believe before delivering Slager’s sentence for violating Scott’s civil rights during the shooting that fueled a national conversation on police use of force against black people. Slager pleaded guilty to the federal charge in May.
Five witnesses for the defense took the stand Tuesday, following three who testified for the government the previous day. But the proceeding was not finished. More defense testimony is expected Wednesday before Norton will weigh what he has seen and heard in the downtown Charleston courtroom.
The importance of evidence indicating that Scott had the Taser at any point was not lost on the judge, who during a defense video presentation pointed out the caption of Slager’s purported words before lawyers offered testimony to back it up.
“I have never seen that before,” Norton said.
Scott’s family sat quietly during Tuesday’s proceeding that again greatly focused on Scott’s actions instead of the defendant's. At times this week, his mother has stepped from the courtroom before the video of her son’s death was played.
“How much more can you attack somebody when he got shot in the back five times?” family attorney Justin Bamberg said before the hearing. “I’ve watched that tape probably 200,000 times, and all I see is a man trying to get away from an officer. … We disagree with any notion that Walter Scott did anything but that.”
Slager faces between no prison time and life behind bars, though a pre-sentencing report drafted by a probation officer recommended a sentence between 10 and 13 years. But if Norton rules Slager's underlying offense in the shooting to be murder instead of voluntary manslaughter, the former lawman could face a lengthier term.
Slager, now 36, stopped Scott’s car for a broken brake light, but the 50-year-old driver later got out and ran.
During a foot chase, the officer fired his Taser, but Scott kept trying to escape.
Slager said that Scott stole the Taser during a scuffle on the ground and that after they rose to their feet, he fired in self-defense.
But the bystander video showed the Taser falling and bouncing behind Slager as Scott turned away. From the moment the officer fired the first shot, Scott was running away. Five bullets hit him from behind.
Slager was arrested three days later, and when he was tried on the murder charge last year, the jury listened to the same clarified audio that was played in the federal courtroom. The recordings were taken from the eyewitness video, a camera mounted in Slager’s cruiser and dispatch communications.
But the jurors were left on their own to interpret exactly what they heard. They ended up not agreeing on a verdict; members have said they rejected the murder charge and deadlocked on a manslaughter count. A mistrial was declared Dec. 5, 2016.
Exactly a year later, the same defense expert who isolated voices in the recordings was allowed on Tuesday to discuss the transcript he drafted. Former Houston police investigator David Hallimore contended that Scott can be heard during the confrontation cursing, “(Expletive) police!” A microphone on Slager’s uniform captured the words.
Hallimore acknowledged to prosecutors that an average listener might have difficulty discerning those words without the aid of suggestive captions.
“It was very difficult to hear,” he said.
But he and another defense expert, video analyst and former Canadian police officer Grant Fredericks agreed Tuesday that the evidence adds up to indicate a struggle in which Slager quickly grew exhausted and fearful.
"Clearly," Fredericks said, "a fight was going on.”
Their testimony, along with a 3-D rendering of the shooting made by defense witness Eugene Liscio, also pointed to Scott as the one who last had the Taser before the device fell to the ground. Some of the experts showed video frames of Slager pulling his pistol with his right hand and grasping Scott’s arm with his left, a finding that the defense said indicates the officer could not have had the Taser.
"There could be a couple of things that happened," Liscio said. "One is that Mr. Scott threw the Taser, and it could have bounced … on the ground."
Prosecutors have asserted that Scott never fought or took the Taser. Slager had the weapon the whole time, they said.
"It's possible that the Taser was in his hand," Washington-based civil rights prosecutor Rose Gibson said in questioning one of the the witnesses, "and he threw it behind him."
That would mean, the prosecutors said, that the Taser fell from Slager's right side — not his left, as the defense believes.
At one point Tuesday, Norton gave his opinion on what he saw.
"It looks to me," the judge said, "like the Taser is coming from the right side" of Slager.