Fourth Circuit affirms officer Michael Slager "conviction" (by a judge at sentencing) of murdering Walter Scott

I noted in posts here and here back in December 2017 that, after the high-profile shooting and then state and federal prosecutions of former South Carolina police officer Michael Slager for killing Walter Scott, the real action in his case became a federal sentencing "trial" after Slager pleaded guilty to a federal civil rights offense.  This "trial" was really a judicial inquisition in which a federal sentencing judge took testimony at a sentencing hearing in order to decide whether Slager's crime was "really" second-degree murder or voluntary manslaughter for purposes of calculating the appropriate guideline range.  

Notably, the presentence report in Slager's case suggested a prison term of between 10 and 13 years based on the conclusion that his crime should be viewed as voluntary manslaughter (and his defense attorneys requested an even lower sentence).  But federal prosecutors successfully argued that the district court should, after applying the guidelines for second-degree murder and obstruction of justice, impose a prison sentence for Slager within an enhanced guideline range of roughly 17 to 22 years of imprisonment.  The judge, after a multi-day hearing, "convicted" Slager of second-degree murder and ultimately imposed a 20-year prison term.  Yesterday the Fourth Circuit affirmed the sentence in US v. Slager, No. 18-4036 (4th Cir. Jan 8, 2019) (available here). Here is how that opinion gets started and a passage from the heart of the opinion:

Defendant Michael Slager (“Defendant”), a former officer with the North Charleston Police Department, admitted that he “willfully” shot and killed Walter Scott (“Scott”), when Scott was unarmed and fleeing arrest.  Defendant further admitted that his decision to shoot Scott was “objectively unreasonable.”  Based on those admissions, Defendant pleaded guilty to depriving Scott of his civil rights under color of law.  The district court sentenced Defendant to a 240-month term of imprisonment.  Before this Court, Defendant argues that the district court reversibly erred in setting his sentence by: (1) using second-degree murder as the sentencing cross-reference for his offense rather than voluntary manslaughter, and (2) applying a two-level enhancement for obstruction of justice.  Finding no reversible error, we affirm Defendant’s sentence....

“When sentencing courts engage in fact finding, preponderance of the evidence is the appropriate standard of proof.” United States v. Span, 789 F.3d 320, 334 (4th Cir. 2015) (citations and alterations omitted). We “will not reverse a lower court’s findings of fact simply because we would have decided the case differently.” Id. (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)).  Instead, clear error exists only when “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting Easley, 532 U.S. at 242)....

Because Santana’s video does not capture the entirety of the disputed period, the court based many of its factual findings on its assessment of the credibility of the two testifying eyewitnesses to the encounter: Defendant and Santana.  Examining at length each of Defendant’s four accounts of the encounter, the court discredited Defendant’s testimony as “contradictory,” “self-serving, evolving, and internally inconsistent.” Slager, 2018 WL 445497, at *4–6.  The record amply supports that credibility determination....

In conclusion, the district court did not reversibly err by inferring Defendant’s malice from the facts it found credible. Moreover, the court did not reversibly err by determining that Defendant’s malice was not negated by “sudden quarrel or heat of passion.” Accordingly, the court properly cross-referenced second-degree murder.

I take no issue with the substantive conclusions of the courts here, but I still always find it jarring when district judges at sentencing are resolving factual disputes and reaching judgments about criminal behavior that have long traditionally been classic jury issues. But, thanks to the remedial opinion in Booker, these matters can still be resolved by judges at sentencing because their findings result in only advisory recommendations rather than sentencing mandates.

Prior related posts:

• After his guilty plea to a civil rights offense, what federal guideline range and ultimate sentence will Michael Slager face for killing Walter Scott?
• Latest trial of Michael Slager for killing Walter Scott taking place during his federal sentencing for civil rights offense
• Judge "convicts" Michael Slager of murdering Walter Scott and gives him 20 years in federal prison