From: San Francisco Chronicle
By: Bob Egelko 4/10/15
Video cameras showed BART police Officer Johannes Mehserle fatally shooting Oscar Grant, an unarmed black man, on an Oakland transit platform in 2009. Video footage also displayed four Los Angeles officers brutally beating black motorist Rodney King in 1991, and an officer in Staten Island, N.Y., taking down another black man, Eric Garner, last year with what proved to be a fatal choke-hold.
One lesson from those cases is that videos of police assaults don’t necessarily lead to maximum criminal convictions — perhaps even in the latest incident, in which a white South Carolina police officer was caught on a cell phone video camera shooting Walter Scott, an unarmed black man, in the back last Saturday as Scott was fleeing on foot.
A jury acquitted Mehserle of murdering Grant and convicted him instead of involuntary manslaughter, accepting his assertion that he had mistaken his gun for a Taser. Another California jury acquitted the Los Angeles officers of criminally assaulting King, though a federal jury later convicted two of them of violating King’s civil rights. And a New York prosecutor decided not to charge any officers in Garner’s death, though the U.S. Justice Department could still file civil rights charges.
The video evidence against North Charleston Officer Micheal Slager seems even more compelling, enough so that many observers believe a murder conviction is inevitable.
Video, report differ
A camera mounted on the dashboard of Slager’s patrol car shows Scott, 50, running from his car after a traffic stop. There is an unseen confrontation between the two before the cell phone video picks it up as Scott is fleeing down a trail. Slager aims and fires eight shots. Four bullets hit Scott in the back.
The video then shows Slager walking up to Scott’s body and dropping a dark object, possibly a Taser, alongside him. The officer may have been planting the Taser that, in his police report, he said Scott had grabbed before the shooting. The report also said Slager and another officer tried to perform CPR to revive Scott, but the video shows no sign of that.
The graphic evidence prompted prosecutors in North Charleston to act with unusual speed in filing first-degree murder charges against the 33-year-old Slager. They announced Friday that they will seek an indictment from a grand jury.
But some legal analysts caution that cases that look open-and-shut on video may look different at a trial.
“Your first line of defense is, ‘Stuff happened that wasn’t on the video, stuff that might explain what was on the video,’” said Rory Little, a law professor at UC Hastings in San Francisco. “We don’t know what happened when the officer first confronted him. … There may be other witnesses out there.”
There is, for example, the gap between events shown on Slager’s dashboard camera, an apparently calm exchange after the officer stopped Scott for a broken brake light, and Scott’s flight and fatal shooting recorded by a passerby. Slager might claim, as he did in his police report, that Scott acted menacingly in the interval between the videos.
Franklin Zimring, a UC Berkeley law professor who is working on a book about killings by police, said an argument could be made for a lesser conviction of voluntary manslaughter.
If Slager says that he feared for his life, prosecutors would “have to prove that he really didn’t have a perception that he was in danger” to convict him of murder, Zimring said. Even an unreasonable belief by Slager in the need for self-defense could lead to a jury verdict of voluntary manslaughter, he said, and in police cases, “the notion that unreasonable beliefs can be genuine is something that juries tend to identify with.”
Contradictions may hurt
However, others with experience in criminal cases against law enforcement officers, including Mehserle’s defense lawyer, Michael Rains, said the contradictions between Slager’s self-justifying police report and the explosive video should strengthen the case for murder.
“The officer could say, ‘He had fought with me over my Taser. I believed he wanted to use it against me. Then he resisted and was attempting to avoid apprehension,’” said Rains, a Pleasant Hill attorney who has represented numerous law enforcement officers.
But because the video appears to refute Slager’s version of events, Rains added, “this guy’s got a big uphill battle with credibility. Almost everything he says will be viewed with suspicion” by the jury.
San Francisco Police Chief Greg Suhr said the video appeared to show Slager as a cold-blooded killer. “I can’t imagine that he’s not convicted of murder,” he said in an interview.
“I’m not easily shocked, and I was shocked at how calm the officer was during the entire commitment of that crime,” Suhr said. “He’s never anything other than cold and calculating throughout the entire event.”
Officers’ support key
A key element in any possible defense is the support of fellow officers. In Mehserle’s case, other BART officers who were on the Fruitvale Station platform, where the shooting occurred, backed up Mehserle’s testimony that Grant, whose hands were partially hidden, might have posed a threat. They also testified that they heard Mehserle shout his intent to use his Taser before firing his handgun.
The Rodney King case illustrates other potential lines of defense. The officers testified that they were defending themselves from King’s aggressive behavior that took place before the video camera started rolling. Another officer, testifying as an expert witness, said a stop-action, frame-by-frame analysis of the video showed that what appeared to be police brutality was actually reasonable force.
Arguments like those are implausible in the South Carolina case, said Laura McNeal, a University of Louisville law professor who writes training manuals for police interactions with youths that are used in several cities, including San Francisco. She said there was no evidence that Scott, who was of average height and weight, posed a threat to Slager or anyone else or possessed a weapon.
Type of murder conviction
“I’d be hard-pressed to find a jury that would not convict this officer of murder,” McNeal said. She said a jury might conclude that Slager didn’t have time to plan the killing and convict him of second-degree murder instead of premeditated first-degree murder.
Zimring, who has researched police homicide cases, said he’s never heard of such a conviction for a police officer charged with killing someone while on duty. In a case like this in which Slager was evidently responding to Scott, Zimring said, “they’ll never find premeditation.”
But Little, of UC Hastings, said courts have ruled in non-police cases that “premeditation can happen in an instant,” even in the time between a killer’s first and second gunshots. In view of Slager’s apparent lack of credibility, he said, his best hope is to negotiate a deal with the prosecutor for something less than first-degree murder.
And in this case, said Rains, the veteran police lawyer, if a prosecutor agreed to a guilty plea for manslaughter, “I think the public would throw that prosecutor out.”