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One of South Carolina’s best-known criminal defense attorneys told a federal judge on Monday he was stunned when he learned that his interpretation of a judge’s remark likely put his client behind bars for an extra 10 years in a case where he defended a white police officer who fatally shot a Black man.
“I was not only surprised, I was shocked because I really had misread the case,” Charleston attorney Andy Savage testified. “I had misinterpreted signals that I received, one of which was from Judge Norton. I wanted Michael (Slager) to get the best possible outcome, and he didn’t.”
The 20-year prison sentence that U.S. District Judge David Norton gave Slager, a former North Charleston police officer who is white, in December 2017 for shooting Water Scott, an African American man, is under review in Charleston federal court this week.
Slager, with a new lawyer, is trying to convince a new federal judge that Savage bungled his plea bargain so badly by giving him “ineffective assistance of counsel” — the legal standard to get a sentence tossed out — that Slager should have a new sentencing hearing.
The hearing, which will likely conclude on Tuesday, is yet another high-profile event stemming from Slager’s April 2015 shooting of Scott — a shooting captured on a bystander’s cell phone video that subsequently went viral on social media and national television.
The video captured Slager taking aim at Scott, who was unarmed and running away. Slager fired eight shots, five of which hit Scott in the back, killing him. The two had been fighting just before that, but the fight was not shown on video.
Central to Monday’s hearing was a Jan. 3, 2017 pretrial meeting that Savage, his wife and assistant Cheryl Savage, and law partner Don McCune had with Judge Norton to discuss getting court money for upcoming legal expenses to hire experts to help with the federal case. Slager was facing a charge of using excessive force to violate Scott’s civil rights and cause his death.
At that meeting, Norton told the three that Slager’s case “is not a murder case” — an assessment that Savage, his wife and McCune took to heart in their legal strategy for the next 11 months.
In a written statement for Monday’s hearing, Norton admitted he said those words.
How Norton viewed the case — as murder or manslaughter — was crucial as to how much time in prison he would give Slager if Slager were to plead guilty. If Norton were to view the case as manslaughter, a less serious form of killing than murder, Slager might be able to get off with a sentence as low as five years, according to Monday’s testimony.
On Monday, Savage testified that he took Norton’s comment seriously because it was so spontaneous and specific.
“It was clear and unequivocal and unsolicited,” Savage said. “There is no question in my mind at all that the saying was unsolicited and declarative.”
Savage, who graduated from the University of South Carolina School of Law in the same year as Norton in 1975, also said he had known Norton more than 40 years.
“He is the godfather of my son, and I’m the godfather of his daughter,” Savage said.
Savage did not discuss Norton’s comment with the judge at the time because it would have been improper to do so.
But, Savage said, neither did Norton hint that he might change his mind or how full of problems the case could be.
“He never said to me, “Andy, boy, you’ve got a tough case coming here boy, you better be careful,’” Savage said.
From then on, the judge’s statement was “one of the factors” that was crucial in how he and his legal team looked at the case, Savage testified.
Savage takes the stand
In a cross examination of Savage by assistant U.S. Attorney Brook Andrews, Andrews got Savage to admit that Norton’s observation was just one of many many factors at play in the case and that Savage, despite taking Norton seriously, pursued all manner of other aggressive measures in the case.
Under Andrews’ questioning, Savage admitted he has won awards for being one of America’s best attorneys and had a team of six attorneys working with him to help get Slager a lighter prison sentence.
Savage testified he spent $95,000 to hire the best experts he could to help Slager’s case, including an audio analyst, a video expert, a cell phone analyst, a DNA expert, three private investigators, a psychiatrist, a psychologist, a Taser expert, a medical expert and a statistician.
The purpose of the experts was to show dynamics behind crucial events such as Slager’s fight with Scott that was not caught on the bystander video and illustrate that Slager had no “malice” when he shot at Scott and, therefore, the case could not be viewed as murder, Savage testified.
Slager’s defense team was “the largest I have ever experienced,” Savage said.
Savage also testified about a host of other factors playing into defense strategy, including how his lawyers had to counter a “tidal wave” of negative sentiment around the state and nation about police shootings and had to negotiate with federal and state prosecutors about charges against Slager. Strategy also included trying to get a plea deal where Slager would serve time in federal and not state prison.
Federal prisons protect convicted law officers much better than the state’s Department of Corrections, Savage testified.
When federal prosecutors finally offered Slarger a plea deal that allowed no state prison and left it up to Judge Norton to decide whether the case was murder or manslaughter and how much prison time Slager would get, Savage urged Slager to accept it.
Savage was convinced he could then convince Norton to give Slager a lighter sentence, the attorney testified.
“My advice (to Slager) was based on a collage of information,” Savage testified. That included knowing the parties involved, the strength of the evidence, … experience, personality ... judges’ reputations.“
Asked what impact Norton’s statement that it wasn’t a murder case had on his thinking, Savage testified, “If you’re asking me if it had an impact on me, the answer is yes. But if you are asking me if it wholly informed my decision, the answer is no.”
But on Dec. 7, 2017, Norton said he viewed the case as murder because of the numerous shots Slager fired at Scott and misleading statements Slager gave police investigating the shooting — statements so misleading that Slager had obstructed justice.
To win a chance at a new sentence, Slager will have to show that Savage was all but hopelessly incompetent.
But Judge Richard Gergel, who presided over Monday’s case, asked Savage a flurry of questions, in which Savage admitted he did all he could in preparing the case on many levels. Savage said that included bringing Slager’s exemplary record as a Coast Guard service member and police officer to Norton’s attention. Savage also knew that a government pre-sentence investigation of Scott’s killing had concluded it was a manslaughter case.
“I don’t have any doubt, Mr. Savage, that you profoundly regret the outcome of this case, but at the time you gave Mr. Slager everything you had and more?” Gergel asked.
“Yes,” said Savage.
“Do you think that Judge Norton reached that conclusion (about the 20-year sentence) considering all the facts and evidence in the case?” Gergel asked Savage.
“Yes, I do,” said Savage.
Sometimes, Gergel said, “people want to blame lawyers for outcomes, but lawyers are advocates, they are not magicians are they?”
“No sir,” answered Savage.
The hearing, in Charleston but conducted remotely by video and audio hookups, resumes Tuesday morning.
Slager is expected to testify.