Malice, Manslaughter, and the Michael Slager Trial

According to the foreman of the jury in the Michael Slager trial, 

the jury was focusing on a lesser manslaughter conviction for Slager rather than murder, which under South Carolina law requires “malice aforethought.”

“We had to come to find out that he didn’t do anything malicious,” Montgomery said on NBC’s “Today” show. “He had a brief disturbance in reason at that moment.”

So, what are “malice” and “manslaughter” under South Carolina law?

Most dictionaries define “malice” as something like:

desire to inflict injury, harm, or suffering onanother, either because of a hostile impulse orout of deep-seated meanness.

Legally speaking, malice, and specifically, malice aforethought, is the mens rea, or mental state, that the prosecution must prove beyond a reasonable doubt to secure a murder conviction in South Carolina (and most other states). As noted by the Court of Appeals of South Carolina in State v. Kinard, 646 S.E.2d 168, 169 (S.C.App. 2007),

“Malice aforethought” is defined as “the requisite mental state for common-law murder””and it utilizes four possible mental states to encompass both specific and general intent to commit the crime. Black’s Law Dictionary 969 (7th ed.1999). These four possibilities are intent to kill, intent to inflict grievous bodily harm, extremely reckless indifference to the value of human life (abandoned and malignant heart), and intent to commit a felony (felony murder rule).

Meanwhile, intent means conscious goal or objective. So, what does that mean with regard to the Michael Slager trial? It means that the jury at Slager’s retrual could find malice/malice aforethought if it finds that Slager fired five bullets into Walter Scott’s back:

1. with the goal/objective of killing Scott (intent to kill);

2. with the goal/objective of seriously injuring Scott (intent to inflict grievous bodily injury); or

3. with reckless disregard for Scott’s life (abandoned and maligant heart/depraved heart murder.*

Therefore, the jury doesn’t need to find “malice” in the colloquial sense of the word to return a murder conviction; instead, they just have to find one of the above mental state. It also doesn’t need to find premeditation. Some states distinguish first-degree murder from second-degree murder, with the former charge requiring proof of premeditation or deliberation. South Carolina, however, simply has the charge of murder and does not require proof of premeditation.

That said, lack of premeditation can be important for downgrading a charge from murder to voluntary manslaughter. Under South Carolina law, if the prosecution has established the elements of murder, the defendant is entitled to a jury instruction on voluntary manslaughter if he can present evidence of two additional elements: (1) sufficient legal provocation; and (2)  heat of passion. See, e.g., State v. Byrd, 474 S.E.2d 430, 432 (S.C. 1996). 

“Sufficient legal provocation” is defined as an event that “would naturally disturb the sway of reason, and render the mind of an ordinary person incapable of cool reflection, and produce what, according to human experience, may be called an uncontrollable impulse to do violence.” State v. Cole, 525 S.E.2d 511, 513 (S.C. 2000). Sufficient provocation includes things like mutual quarrel, adultery, and overt, threatening acts.

In turn, “heat of passion” South Carolina has found that 

Even when a person’s passion has been sufficiently aroused by a legally adequate provocation, if at the time of the killing those passions had cooled or a sufficiently reasonable time had elapsed so that the passions of the ordinary reasonable person would have cooled, the killing would be murder and not manslaughter. State v. Knoten, 555 S.E.2d 391, 395 (S.C. 2001).

Let’s now apply this to the Michael Slager (re)trial. As they did at the first trial, the defense will claim that Slager is entitled to a jury instruction on voluntary manslaughter because Walter Scott resisting arrest could qualify as “sufficient legal provocation,” and Walter Scott running away after this event did not give Slager, or the objectively reasonable person, sufficient legal provocation.

Of course, even if the defense can establish both sufficient legal provocation and heat of passion, that merely means that jury may downgrade the charge to voluntary manslaughter; they can still return a murder conviction. The difference? Murder in South Carolina has a mandatory minimum of 30 years incarceration while voluntary manslaughter has a sentencing range of 2-30 years incarceration.

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*Felony murder isn’t a possibility here.

-CM