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Jeff Sessions’s ‘failure to recall’ gives defense lawyers new argument in police shooting case

The dash cam from North Charleston, S.C. police officer Michael Slager's vehicle shows the initial traffic stop and interaction that preceded Slager shooting and killing Walter Scott. (Video: South Carolina Law Enforcement Division)

Earlier this month, when Attorney General Jeff Sessions changed his account of what he knew about the Trump campaign’s interactions with Russia, he stressed that he had “always told the truth” as he remembered it at the time.

“I’ve answered every question to the best of my recollection,” he testified in a closely watched congressional hearing.

Now, in an unrelated matter, a former North Charleston, S.C., police officer is hoping that Sessions’s memory lapses will help him persuade a judge to show some leniency as he awaits sentencing for fatally shooting an unarmed black man.

Federal prosecutors say that Michael Slager lied repeatedly about why he fired eight rounds at Walter Scott’s back in April 2015 and that he should be punished with an enhanced sentence for obstruction of justice.

Slager’s defense attorneys disagree, and to bolster their argument, they’re citing Sessions’s appearance before the House Judiciary Committee on Nov. 14.

In a federal court filing last week, Slager’s attorneys said the former officer had not, in fact, lied when he gave an ever-shifting account of the shooting during two years of investigations and court proceedings, at times contradicted by cellphone footage of the incident. Rather, they said, his memory had faltered under pressure.

Sentencing Memorandum for Michael Slager

“A Swiss cheese memory is a symptom of stress, not an indicator of lying,” Slager’s attorneys wrote, citing testimony from a medical expert.

To further illustrate the point, they quoted at length from Sessions’s testimony.

In the November hearing, Sessions acknowledged for the first time that he remembered a meeting where a foreign policy adviser, George Papadopoulos, floated a possible meeting between then-candidate Donald Trump and Russian President Vladimir Putin. He had previously said he didn’t think anyone from the Trump campaign had had communications with Russians.

Sessions blamed those and other lapses on the chaos of the Trump campaign, saying “my story has never changed.”

Slager’s attorneys saw a direct parallel.

“Unlike Slager, who had been in what he perceived as a life and death struggle before he made his statements, Sessions had time to prepare for his Congressional testimony, yet still often got it wrong,” they wrote in their filing.

Sessions again changes his account of what he knew about Trump campaign’s dealings with Russians

“Why? According to Sessions, he was working in chaotic conditions created by the Trump campaign,” they continued. “This was undoubtedly stressful, though not as stressful as having shot a man to death, or dealing with the aftermath of that, or facing the death penalty or life in prison. As Sessions made clear in his statement, a failure to recall, or an inaccurate recollection, does not a liar make.”

The unorthodox argument is seemingly designed to put the Department of Justice lawyers handling the case in an awkward position. If they continue to insist that Slager is a liar, the defense’s theory seems to go, then they’re essentially calling their boss a liar, too.

“Like Sessions, Slager never lied or misled anyone,” the defense attorneys’ filing reads. “Like Sessions, he answered the questions that were asked. When he had his memory refreshed, he added the refreshed recollection to his testimony. When he failed to remember certain items, it can be attributed to the stress or chaos of the event during which the memory should have been formed.”

Slager, 36, gunned down Scott, 50, in North Charleston after Scott fled a traffic stop for a broken brake light. Scott, who was unarmed, was running away when Slager fired on him. He died on the scene, struck by five of Slager’s eight shots. Cellphone video captured the shooting, which became a rallying cry for police accountability advocates around the country.

How a cellphone video led to murder charges against a cop in North Charleston, S.C.

After a mistrial on a murder charge, Slager pleaded guilty in May to a federal civil rights charge. Prosecutors said Scott posed no threat to Slager.

Sentencing is scheduled to take place next week. The Department of Justice asked the court last week to find the underlying offense to be second-degree murder and to sentence Slager to life in prison. Defense attorneys contend the offense should be voluntary manslaughter.

Former S.C. police officer pleads guilty in fatal shooting caught on video

Prosecutors are seeking an enhancement on the sentence for obstruction of justice. They claim that Slager gave “false and misleading information to his supervisors and state investigators” and provided “misleading and inaccurate testimony under oath during proceedings in state and federal court.”

Specifically, Slager told investigators that Scott had attacked him, stolen his Taser and was charging toward him when he opened fire. As the case progressed and footage of the incident showed otherwise, he changed his account, eventually saying stress had given him a “fuzzy” memory of the shooting.

“All of the defendant’s false claims that Scott had acted aggressively towards him before the shooting were made in attempt to justify his unlawful shooting of the victim,” prosecutors wrote in their filing. The filing also alleges that Slager moved his Taser to make it seem like Scott was the aggressor.

“For over two years, the defendant continuously lied about his conduct,” the filing read, “propagating a false and evolving narrative that he was attacked by Walter Scott.”

Slager’s attorneys said that such a characterization was wrong. In addition to Sessions, they cited a forensic psychiatrist who testified that high levels of stress interfered with memory-building in both the short and long term.

“Apparently,” defense attorneys wrote, “the DOJ classifies a lie as anything that is inconsistent with their version of the story.”

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