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Why we shouldn't be surprised if the Slager jury fails to convict

Bracing for the Hit

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Part of the difficulty many Clinton supporters are no doubt having with accepting Donald Trump's upset victory in the recent presidential election is the surprise nature of his electoral win. For readers of Politico, FiveThirtyEight, and The New York Times, it's hard to reconcile the shocking Trump victory, with months of predictive polls that forecasted the chances of a Clinton victory at anywhere from 80 to 90 percent. Certainly the shock of the actual outcome and the unexpectedness of the result has intensified the feelings of grief, anxiety, and despair that many diehard Hillary supporters now feel.

If anticipation of a traumatic event helps one deal with an otherwise unexpected tragic outcome, then the people of Charleston who want to see justice done in the Michael Slager case would do well to brace themselves. The likelihood of a guilty verdict in the ongoing murder trial may be as unlikely as the Electoral College reversing Trump's win and belatedly handing the presidency to Hillary Clinton.

Why is that? Well, it's not because of the racial composition of the jury. Although black jurors might have been more likely to sympathize with Walter Scott and his family, we have to assume that jurors of any race will evaluate the evidence as it's presented. That is the sworn oath jurors took, and the justice system requires that honorable, duty-bound jurors comply. Observers who assume that a mostly-white jury will exonerate Slager just because he's white are giving our legal system little credit. Although there once was a time when an all-white jury in the South would refuse to convict a white defendant for the killing of a black man, we should hope for the most part that those days have long passed.

The reason a guilty verdict will be so hard to achieve in the Slager case is not because of the jury composition, but because of the exceedingly high standard the prosecution needs to meet in proving the required state of mind for murder. A conviction in a murder case does not simply require that the prosecutor prove that the defendant killed the victim. A murder conviction also requires that the state prove the state of mind which the defendant had while killing the victim. In the case of murder, required mental state, or mens rea, is that the defendant acted with malice and that the killing was premeditated.

Therefore, a defendant who kills accidentally, when only trying to disable a victim might be guilty only of negligent homicide, while a defendant who recklessly kills in an emergent situation may only be guilty of voluntary manslaughter. It is not enough that a victim was killed, the state also must prove that the state of the mind of the defendant was sufficiently culpable to warrant the more severe charge.

In this case, the Solicitor's Office chose to bring the more serious charge of murder against Slager which also happens to be the most difficult charge to prove. If even one juror refuses to convict, since any verdict must be unanimous, the result would be a hung jury. While not as disheartening for those seeking justice as a not guilty verdict, the result would essentially be the same in the short term: Slager would continue to walk free while the state decides whether to try the case again or to offer a much lesser plea.

The riots and protests we see in other parts of the country usually come when despondent citizens are blindsided by what they feel is an unjust outcome. If Slager walks free when his trial is over, Charleston residents might understandably be despondent, but they shouldn't be blindsided. Based on the charges which the prosecution chose to file against Slager, they should have seen the result coming from a mile away.

Dwayne Green is an attorney practicing in downtown Charleston. He received a bachelors degree in Politics from Princeton University and his law degree from the University of Iowa. He is the former Assistant Corporate Counsel for the City of Charleston and a past chair of the Charleston Board of Architectural Review.

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