What Is A Mistrial? Why Michael Slager Was Not Convicted of Killing Walter Scott

When a South Carolina judge announced a mistrial in the murder case of Michael Slager, a police officer accused of shooting and killing Walter Scott as he ran away, shock, outrage, and confusion were among the primary reactions from many by the news.

At the time of the announcement, and still today, a fair amount of people do not understand what this means for the case. Would this be the end of the charges against Slager? Would he go free? Did this mean he was found innocent? How could a case with video evidence of an officer shooting an unarmed man in the back as he fled end in anything but a conviction, if not for murder, then at least for manslaughter?

Even seemingly reputable news sources appeared to be confused, as The Atlantic initially reported that Slager was "acquitted."

So before we look at how a mistrial could happen, let's first clear up a little legalese.

An acquittal happens when a judge or jury finds a criminal defendant not guilty of a crime. This is the opposite of a conviction, in which the defendant is found guilty. An acquittal does not necessarily mean a person is factually innocent, but it does mean that there was insufficient evidence presented by the prosecution to prove guilt beyond a reasonable doubt. Remember, the verdict is "not guilty" as opposed to "innocent."

Regardless, because of the law of double jeopardy, a person acquitted of a crime cannot be tried a second time for the same offense.

A mistrial occurs when something happens during the trial or deliberations that prevents justice from being served, i.e., prevents the jury from returning a verdict of not guilty or guilty. In the Slager case, it was a deadlocked jury incapable of reaching a unanimous verdict. The verdict must be unanimous in every state except Oregon and Louisiana.

Some reports say that a lone juror refused to budge in his decision not to convict. That juror sent a message to the judge, saying, "I cannot in good conscience consider a guilty verdict." One juror, however, told reporters after the fact that the media misconstrued the idea of a single holdout, saying that five of the jurors were "undecided." Juror Dorsey Montgomery II told reporters, "I believe we could have deliberated just a little bit more to see if we could sway that particular juror and get those who were undecided to make a decision."

This is an integral part of jury deliberations. Each juror is tasked with bringing his or her own personal experiences and common sense to the discussion in order to aid in a combined conversation regarding the evidence presented during the trial. As a defense attorney, I don't always like the idea of individuals trying to "sway" others to their respective viewpoint; often times, that can lead to a "compromise" verdict: "If your side agrees to convict, our side will agree to recommend the minimum sentence." This happens often in Oklahoma where the jury decides both guilt and punishment, unlike many other states.

However, based on reports from the jurors during deliberation, the South Carolina judge determined the jury was hopelessly deadlocked and declared a mistrial.

But a hung jury is not the only reason a judge might declare a mistrial. Other grounds for mistrial include:

  • death of a juror or attorney
  • improper jury selection
  • inclusion of a prejudicial error that could not be remedied by appropriate juror instructions
  • juror misconduct
  • prosecutorial misconduct

Both the prosecution and the defense can request a mistrial if they believe one of the above-listed issues occurred. A judge can order a mistrial on his or her own motion as well. Regardless, when a judge declares a mistrial, it is not the same thing as an acquittal. The defendant is not "off the hook," so to speak. While the prosecution could dismiss a case after a mistrial, the more likely scenario is that the case will start over. A new jury will be selected, and the prosecution and defense will again present their cases, hopefully taking note of what did and did not work the first go-around.

No one is happy with a mistrial, especially after evidence has been presented, and the jury has gone into deliberation only to inform the judge that it is deadlocked and can't reach a unanimous verdict. I've had it happen to me in a long, emotionally charged forty-count child-sexual abuse trial. The prosecution failed to meet its burden of proof, and the jury couldn't reach a unanimous verdict: some people thought my client was completely innocent, and some thought he was completely guilty.

Most folks will call the mistrial a win for the defense. I guess technically it is. After all, when the jury deadlocks, that means the defense attorney kept the prosecution from carrying its burden of proving guilt beyond a reasonable doubt. Consequently, the defendant is still "innocent until proven guilty."

In reality though, a mistrial feels like a draw with no clear winner or loser: everyone must go back to the drawing board and start all over. On top of that, the prosecution has a chance to go back and patch any and all holes that the defense punched in their case. The prosecution gets a chance to fix all of its problems, and the defense is left guessing how those "fixes" will effect the evidence to be presented at the next trial.

Moreover, as any experienced attorney will tell you, jury trials start and finish with the jury you end up with after voir dire (jury selection). The Slager case resulted in a mistrial because of the particular jurors. The jurors next time may be more prone to prosecution...or possibly prone to the defense.

Whatever your opinion on the case, a mistrial is delayed justice, whether that means a guilty defendant gets a little more time before being convicted or whether that means an innocent defendant must wait that much longer before clearing his or her name.