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With so many eyes on the street, justice today might rely only on a video

Little Brother

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Judy Scott leaned into her husband, a bright red sweater pulled over her shoulders, as Circuit Judge Clifton Newman declared a mistrial in the case against the man who shot her son. After more than 22 hours of deliberations, the final word from the jury would come in the form of a brief letter, which Newman read aloud to a packed courtroom at 3:33 p.m. Monday afternoon. With a mention of regret, the jury had written to inform the court that despite their best efforts, they were unable to come to a unanimous decision regarding the guilt or innocence of Michael Slager, the former North Charleston officer charged with the death of Walter Scott. Summoning the jury for a final time, Judge Newman acknowledged the difficult task placed before the jurors. The son of a reverend, Judge Newman was inspired to pursue a career in law after playing the role of an attorney in a high school play based on the 1954 desegregation case of Brown v. Board of Education. Elected circuit court judge in 2000, he told the jury that this was the longest deliberation of his career.

A female juror seated in the second row continued to wipe tears from her eyes with a wadded tissue as Ninth Circuit Solicitor Scarlett Wilson told the jury to ignore comments from anyone claiming that they had not lived up to their responsibilities. "You have sacrificed more than any of your peers," Wilson said. The solicitor delivered her opening arguments more than a month earlier. After thanking the jury, Wilson turned her attention to the Scott family who looked on from across the courtroom. The solicitor's voice chocked with emotion as she said she was thankful to have the Scott family in her life and thanked them for being an example to the community.

"The Scotts have been a sterling example of dignity and grace in extraordinary circumstances. This is a very difficult time for them, but I have no doubt that they will continue to support our efforts to find justice for this case. I have no doubt that they will continue to show their faith in the criminal justice system," said Wilson in a statement released following the trial. "While I cannot overstate our disappointment that this case was not resolved, I commend those who sacrificed so much time, energy, and effort to serve on this jury. We will try Michael Slager again. We hope the federal and state courts will coordinate efforts regarding any future trial dates, but we stand ready whenever the court calls."

Judge Newman officially adjourned court at 3:49 p.m. Monday afternoon. As rain threatened, the Scott family gathered outside the courthouse to issue a statement on the mistrial and pending retrial.

"I know that justice will be served because the God that I serve is able. He told me to wait on the Lord and be of good courage," Judy Scott said in a blistering declaration of faith.

Family attorney Justin Bamberg followed Mrs. Scott's sermon with an acknowledgement that those he represents would have welcomed a different outcome, one that placed Michael Slager behind bars, but he was steadfast in the belief that the case is far from closed.

"We know that at the end of the day, justice will be had," said family attorney Justin Bamberg just before a long rain opened up over Charleston. "Because oftentimes what is done in the dark comes to the light. And thanks to Feidin Santana, we've seen the light. And there is no way, at the end of the day, that former officer Michael Slager can escape what's coming to him. And that is a conviction. And that is prison."

Solicitor Scarlett Wilson shows jurors images from the video of the Walter Scott shooting. - GRACE BEAHM/POST AND COURIER
  • Grace Beahm/Post and Courier
  • Solicitor Scarlett Wilson shows jurors images from the video of the Walter Scott shooting.

The Video

The light that Bamberg referenced would be the eyewitness video of Scott's death that would change the narrative of what happened April 4, 2015. Santana woke up late for work the morning Walter Scott was shot. Taking a back route to his barbershop, the 25-year-old says he froze out of fear when he noticed a man running toward him, followed soon after by Slager.

"The first thing that caught my attention was the electric sound as I approached there," Santana told the court during the first week of the trial.

Immediately after Scott's death, Slager's account of a struggle in which Scott allegedly wrestled away his Taser would be the sole narrative of what happened that day until Santana stepped forward with the video of the shooting that he had recorded with his cell phone. Showing Scott turning away from Slager and fleeing as the officer opened fire, the video proved to be the key piece of evidence in gaining an indictment against Slager, as well as the most analyzed piece of evidence during his trial.

Approximately 85 percent of Charleston County residents had watched Scott's death prior to the trial, according to a survey arranged by Slager's attorneys. Prior to the trial, the defense had petitioned Judge Newman to have the video removed from evidence, calling it "unreliable, technically inadequate, limited in scope, and extremely unrepresentative of the events at issue." Of the pool of almost 190 potential jurors questioned before the trial, only nine said that they had never heard anything about the case through the media, through seeing the video, from friends, or from discussing the case in any way. For the prosecution, the case hinged upon proving that the definitive account of Scott's death was presented in the video, which shows Scott approximately 18 feet away from Slager when the officer opened fire. For the defense, the trial would come down to casting doubt on Scott's actions immediately before the camera comes into focus. As lead defense attorney Andy Savage would say during his closing arguments, the jury was asked to consider the things they have seen and the things they haven't.

"In an instant, in a nanosecond, he makes a decision," Savage said regarding Slager's use of deadly force to stop Walter Scott. "And because of the video, he's become a posterboy for all the other events that transpired in 2014, in 2015."

Michael Slager (middle) sits with his defense team as they await Judge Clifton Newman's announcement of a mistrial in the former officer's state case - GRACE BEAHM/POST AND COURIER
  • Grace Beahm/Post and Courier
  • Michael Slager (middle) sits with his defense team as they await Judge Clifton Newman's announcement of a mistrial in the former officer's state case

The Revolution

Before Walter Scott, there was Levar Jones, an unarmed African-American man who was shot in the hip by a South Carolina state trooper during a traffic stop for a seat-belt violation on Sept. 14, 2014. Dash-cam video from Lance Corporal Sean Groubert's patrol car showed the former trooper open fire on Jones as he reached into his vehicle for his driver's license.

"The video was very powerful. Just a year ago, we were in the immediate days of Ferguson. The focus on police was starting to get a lot of interest. The Trooper Groubert video played into that and certainly emphasized the importance of camera footage in incidents like this," University of South Carolina Law School Assistant Professor Seth Stoughton told The State newspaper in September 2015. "This is the type of incident that if you just had the officer's verbal description and that of Mr. Jones, who thankfully survived, you might say it was a mistake, but it was a reasonable mistake. The video in this case really drove home the importance of objective evidence in situations that can be incredibly ambiguous."

Unlike the video of the Walter Scott shooting, the footage recorded from Groubert's car was a steady, unblinking look at Jones reaching into his vehicle before gunshots rang out. Groubert pled guilty this March after he was arrested and charged with assault and battery for the shooting, joining an increasing number of criminals caught on tape.

According to Jay Stanley, senior policy analyst with the ACLU Speech, Privacy, and Technology Project, a revolution is underway in terms of video evidence, the first element of which being the growing expectation among Americans that any public event will be captured on video. While dash-cam footage has long been the standard and officer use of body-worn cameras is now widespread, it is the rise in cell phone footage that has proven to be an equalizing factor in modern criminal cases. Under the South Carolina state law pushed into legislation after Walter Scott's death, all state and local law enforcement agencies were required to implement the use of body-worn cameras, but data recorded by a body-worn camera is not a public record subject to disclosure under the Freedom of Information Act. This means that although footage of alleged police abuse or proof to the contrary may exist, there's no guarantee that it will ever see the light of day. This also means that video evidence gathered by officers is more likely to be used against citizens in communities with higher rates of crime and a higher police presence — namely low-income and minority areas such as the Charleston Farms neighborhood where Walter Scott was killed. Cell phone cameras and the ability to widely disseminate video online through YouTube, live-streaming, and social media platforms now serves as a way to democratize what evidence is gathered and released to the public. With the presence of dash-cams, cell phone recordings, and body-worn cameras, Stanley predicts that the lack of video evidence will itself become increasingly suspicious.

"Sure enough, in the wake of Michael Brown's shooting in Ferguson, we saw much discussion of video, or the lack of it. The result of this trend is that, like it or not, the actions of police officers will increasingly be photographed," Stanley writes. "Officers or departments can fight mandates to wear body cameras, they can try turning them off when they don't want their actions recorded, they can refuse to release video to the public, they may allow mysterious technical 'accidents' to swallow up video that has been captured, they can try to intimidate citizens into not photographing them, they can even try to steal cameras or memory chips (or seize them as "evidence") in an effort to prevent video from coming to light. But as the police (along with the rest of us) become increasingly enveloped by video cameras, none of these measures will ultimately withstand the pressure of public expectation."

According to Shaundra Scott, executive director of the ACLU of South Carolina, technology has placed the ability to collect clear-cut evidence in the hands of the everyday citizen in a way that was never before possible. While it is her experience that aggressive police practices have long gone ignored by the greater population, those in communities subject to such abuse are now able to share their experiences on a massive scale.

"Everyone should use what they have at their disposal to make sure that they are adequately protected," says Scott, who believes that a conviction in the case of Michael Slager would go a long way to healing the distrust that exists between law enforcement and some communities. "Some sentence needs to be maintained to ensure that there is trust in the community. This isn't the first time an officer has acted this way. This is just the first time that it was recorded. This has been going on for as long as I can remember, but now we have social media. We have cell phones. We have cameras in our pockets," says Scott. "It would restore some level of confidence in the justice system. Something needs to bridge that divide. The community and the police will need to come together at some point."

Eyewitness Feidin Santana reenacts Scott’s attempt to flee. - GRACE BEAHM/POST AND COURIER
  • Grace Beahm/Post and Courier
  • Eyewitness Feidin Santana reenacts Scott’s attempt to flee.

Room for Questions

Although video evidence has proven to be a reliable tool in ensuring justice is carried out, it is still subject to human perception. As was seen with the mistrial of Michael Slager, the eyewitness video that was once believed to be damning was insufficient to sway the deadlocked jury to a unanimous decision, be it the former officer's guilt or innocence on the possible charges of murder and voluntary manslaughter. After viewing the video multiple times in court, examining the footage frame by frame, the jurors still returned with more questions regarding the letter of the law as it related to what they had seen. This was especially the case for at least one juror, who penned a letter to Judge Newman detailing his or her inability to arrive at a guilty verdict.

"Judge, I understand the position of the court, but I cannot with good conscience consider a guilty verdict. I respect the position of my fellow jurors, some of which oppose my position. I expect those who hold opposing views not to change their minds because I seen them as good, honest people. Therefore I regret to say we may never reach a unanimous decision," the juror wrote days before a mistrial was declared. "As you stated, we must follow the instructions you have given us and the law. We all struggle with the death of a man and with all that has been put before us. I still cannot, without a reasonable doubt, convict the defendant. At the same time, my heart does not want to have to tell the Scott family that the man who killed their son, brother, and father is innocent. But with the choices, I cannot and will not change my mind."

While video evidence may offer an objective view of events as they really occurred, the understanding that a jury takes away from the video is what matters. And that understanding can be affected by any number of factors.

A 2014 study conducted by Wendy Heath and Bruce Grannemann and published in the journal of Behavioral Sciences and the Law examined how video size alters how potential jurors consider evidence. Examining more than 260 students ranging in age from 18-50 at a northeastern university, participants were presented with a trial summary and a series of evidence related to the case of a female accused of murdering either her spouse or a stranger. Video evidence of the defendant's testimony was then shown on either a large 27-inch television screen or on a much smaller 9-inch monitor. In the end, the study found that the more convincing evidence presented in the case was perceived as stronger and unsubstantial evidence was seen as weaker when participants viewed a large screen instead of the smaller screen.

And while the method in which video evidence is presented can have an effect on the way such evidence is interpreted, some fear the growing amount of video evidence in crimes can have a negative impact on how citizens view the world around them. In a 2012 article published in the Northwestern University Law Review, Michael Potere wrote about the fear of the "institutionalization of distrust" that may be encouraged by the spread of videos depicting police misconduct.

"Evidence suggests that the public reacts negatively to footage of police misconduct, making people less likely to cooperate with police when called upon to do so. This problem is exacerbated when a large number of people view the footage in a short time period, in a 'viral' YouTube video, for example. Some argue that once the public develops negative feelings towards the police it is nearly impossible to reverse those feelings because these videos, once posted, do not simply disappear from the internet," Potere writes. "However, if the police footage reinforces the desired belief that the police generally keep the public safe and protected, then recording and sharing footage of police conduct may actually improve the public's perception of them. This, in turn, may increase the public's willingness to cooperate in police investigations. In fact, actively suppressing video recording of the police might also silence positive messages of police heroism and bravery, which does not help the reputation the police are justifiably trying to cultivate and sustain."

With Solicitor Scarlett Wilson's vow to retry the state's case against Michael Slager, Charleston stands to face another trial. A new jury will be gathered to listen to the same witnesses, examine the same evidence, and watch the same video of Walter Scott's death played again and again in a court of law. And while their predecessors were unable to determine Slager's ultimate guilt or innocence after watching the recording, this new jury will hopefully be able to reach a conclusion. The question that remains is, when the evidence is once again put on display, what will this new jury see?

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