Scipio further explains his view that the Killen manslaughter verdict indicates a weakness in the state’s case—and gives evidence from the Evers case that suggests the decision to seek the manslaughter instruction might reinforce the “political” nature of Killen’s prosecution:

Because of the peculiarity of Mississippi’s murder law, a defendant who is on the evidence guilty of murder can be convicted only of manslaughter without error attaching. But this is a decision the jury should be allowed to make, without the State telegraphing AS IT DID WITH ITS MOTION. When, immediately before trial, the State asks for a special instruction on manslaughter when murder is the real crime, it indicates a severe weakness in the case, and also that the indictment is deeply flawed.