Prosecutors should not be allowed to retry Michael Slager for murder because a jury had apparently acquitted him of that crime in his first trial, his attorney said Thursday.
The defense team made the argument in asking a judge to dismiss the former North Charleston policeman's murder count in Walter Scott's shooting death.
From notes they sent during the proceeding last year and from follow-up interviews, lawyer Andy Savage said it was apparent that the 12 jurors agreed that Slager wasn't guilty of murder. But they deadlocked on the lesser offense of voluntary manslaughter, prompting a judge to declare a mistrial.
Savage cited double jeopardy provisions prohibiting someone from being retried for a crime they have already been acquitted of.
"The mistrial on the murder charge must be deemed an acquittal," he wrote Thursday in the motion, "thus barring reprosecution on that charge."
While the request is considered a long shot — particularly with thin legal authority for it — the case continues to show the difficulty of proving murder in Scott's death despite the stark video evidence that some say supports the most serious charge. Slager, 35, isn't set to be retried until August and, in the meantime, faces a federal proceeding on civil rights charges designed for the prosecution of officers alleged to have used excessive force.
He would face up to life in prison if convicted in either case of the most serious charge.
But 9th Circuit Solicitor Scarlett Wilson, the lead state prosecutor, said Thursday that the defense team's portrayal of the jury's findings could have been exaggerated.
"In our view and based on our conversations with several jurors," she said, "Mr. Savage has overstated some of the jurors' positions regarding murder."
Slager stopped Scott's car on April 4, 2015, for a broken brake light. Scott ran, and Slager chased him. The patrolman used a Taser to subdue Scott, but he said the motorist fought back, grabbed the stun gun and tried to use it against him. That's why Slager said he pulled his pistol and opened fire.
The eyewitness video, though, showed the Taser bouncing on the ground as Scott turned and ran away. Slager started shooting when Scott was about 17 feet away, and five of the eight bullets he fired hit Scott from behind.
Toward the end of Slager's month-long trial, Circuit Judge Clifton Newman told the jury to first consider the murder charge. But if the panel couldn't agree on a conviction for murder, it had to resort to discussing the lesser-included manslaughter charge. Prosecutors had successfully argued to add that charge despite a defense objection.
Though the jurors never recorded their vote tally on the murder charge — an acquittal must be unanimous — Savage said their actions showed evidence that all agreed that Slager wasn't guilty of the crime.
When they moved on, 10 jurors couldn't agree to a verdict on manslaughter and two were committed to acquitting Slager altogether, Savage said in Thursday's motion.
Savage implored Newman to poll the jurors on their murder vote, but the judge refused.
"The jury must be deemed to have reached a consensus on the murder charge," the motion stated. "The trial court should have inquired about such verdict as suggested by defense counsel and accepted a partial verdict before declaring a mistrial."
South Carolina has no law specifically allowing such "partial verdicts," Savage noted, but no law prohibits them either.
Other criminal defendants whose trials ended in hung juries have made similar pleas.
An Arkansas case was appealed to the U.S. Supreme Court, which rejected such double jeopardy argument. But that state, Savage argued, didn't allow partial verdicts. Savage cited the dissenting justices in that 2012 case, titled Blueford v. Arkansas, in saying that Newman should have allowed a partial acquittal for Slager.
But the argument could be moot if a jury in Slager's federal case reaches a guilty finding. Wilson, meanwhile, has indicated no plans to lessen the charges against him.
"We are continuing to monitor this case in federal court," she said Thursday, "and stand ready to pursue the state charges, if necessary."