South Carolina

South Carolina

Resentencing of Intellectually Disabled Prisoner Highlights Death Penalty Decline in South Carolina and Nationwide

In 1989, William Henry Bell, Jr. was convicted of murdering an elementary school principal. Nearly 30 years later, South Carolina's Free Times reports that the reversal of his death sentence because of intellectual disability provides evidence of the death penalty's continuing decline in the state and across the country. At the time of the murder, Bell maintained that he was innocent, but after four days in jail, he confessed to the murder. Prior appeals—including one alleging a pattern of racially discriminatory charging practices in interracial crimes involving black defendants and white victims—failed for 25 years, until a trial judge in November 2016 determined that Bell was ineligible for capital punishment because he had Intellectual Disability. In May 2017, the state attorney general's office decided it lacked grounds to appeal the court's decision, leaving Bell to face resentencing with a maximum penalty of life without parole. Emily Paavola, one of Bell's attorneys, said the case fits into a larger narrative of South Carolina's declining use of capital punishment. “It is increasingly hard to justify retaining the death penalty in South Carolina. Prosecutors rarely seek it, juries more rarely impose it, and even when the rare individual is sentenced to death, the odds are that the defendant will not be executed. We can no longer afford the financial and social costs of such a broken system,” she wrote. The last execution in South Carolina took place in 2011, and since that time only one person has been sentenced to death in the state. Similar declines have occurred nationwide, with death sentences and executions both dropping sharply in recent years. Fewer people were sentenced to death in 2016 than in any year since states began re-enacting the death penalty in 1973, and executions in 2016 were at their lowest level in 25 years. 

South Carolina Killer Pleads Guilty to 7 Murders in Deal to Avoid Death Penalty

Todd Kohlhepp (pictured) pleaded guilty to seven South Carolina murders on May 26, 2017 and was sentenced to seven consecutive life sentences, plus 60 additional years for the kidnapping and sexual assault of surviving victim Kala Brown. Kohlhepp made a deal with prosecutors to avoid the death penalty, providing information that solved four murders at a motorcycle store in 2003 and sparing Brown and the families of the murder victims from enduring a lengthy trial and appeals process. Seventh Judicial Circuit Solicitor Barry Barnette said "This was a death penalty case. No doubt about it. But it is not fair for families to wait years and years for justice." South Carolina has not had an execution since 2011 and has imposed only one new death sentence in that period. Brown, who Kohlhepp kept chained in a storage container and raped daily for more than two months, told prosecutors she supported the deal, reportedly saying, "he's the killer, not me." Joanne Shiflet, the mother of murder victim Charles David Carver, said she appreciated the certainty of Kohlhepp's sentence: "I am a lot calmer now. There is no apprehension. There is no what if. We know he is going away and going to stay gone." Other multiple killers have also received plea deals to avoid death sentences: In 2003, "Green River" serial killer Gary Ridgway avoided the death penalty in Washington State by pleading guilty to 48 counts of aggravated murder and providing information that solved 48 killings and helped authorities recover the remains of numerous victims who had been missing for nearly two decades. Roland Dominique, who pleaded guilty to eight murders in Louisiana and was a suspect in 15 more, received a life sentence at the request of victims' families in 2008.

Newly Released Documents Show Dylann Roof Feared Being Labeled Mentally Ill More Than He Feared Death Sentence

Newly unsealed psychiatric evaluations and court transcripts in the case of Dylann Roof (pictured)—sentenced to death for the racially motivated killing of nine black churchgoers in Charleston, South Carolina—raise additional questions as to whether Roof was competent to waive representation in his death penalty proceedings and to forego presenting mental health evidence in his defense. The documents confirm that Roof represented himself in jury selection and in the penalty stage of his federal capital trial out of anxiety that his defense attorneys would present evidence that he was mentally ill. In his journals, Roof wrote, “I want state that I am morally opposed to psychology,” which he called "a Jewish invention [that] does nothing but invent diseases and tell people they have problems when they dont [sic].” The newly released documents show that Roof became irate when he realized his lawyers wanted to present a mental health defense that involved introducing evidence that he suffered from delusions, a crippling anxiety disorder, depression, and autism.  The unsealed transcripts reveal that defense counsel, David Bruck, told the court that Roof “firmly believes that there will be a white nationalist takeover of the United States within roughly six, seven, eight years, and when that happens, he will be pardoned. He also believes it probable, although not certain, that he will be given a high position, such as the governorship of South Carolina.” At a pretrial hearing, Roof told U.S. District Judge Richard Gergel, "If they say I have autism, it's like they are trying to discredit me. It discredits the reason why I did the crime." He also told the judge he believed being labeled autistic would be worse than receiving a death sentence, "Because once you've got that label, there is no point in living anyway." Dr. James Ballenger, a clinical psychiatrist who evaluated Roof, wrote, "The only thing that is important to him is to protect his reputation." Bruck argued to the court that Roof was not competent to represent himself, saying, "If he is incapable of cooperating with counsel, if the decisions that he is making are affected by delusions, by fixed false beliefs, if they are the product of mental illness … the mere fact that he has figured out how to sabotage his defense doesn't mean that he's competent. It is an illustration of why it is so terrible to try an incompetent defendant." Roof was ultimately found competent to stand trial and represent himself. He was convicted and sentenced to death on January 10, 2017.

At Least Seven States Introduce Legislation Banning Death Penalty for People with Severe Mental Illness

Bills to exempt individuals with severe mental illness from facing the death penalty are expected in at least seven states in 2017. Legislators in Idaho, Indiana, North Carolina, Ohio, South Dakota, Tennessee, and Virginia have either introduced such legislation or announced that they plan to. Six of the seven states have sponsorship from Republican legislators, indicating bipartisan support for the measures. The author of Indiana's bill, Sen. James Merritt (pictured, R-Indianapolis), says he supports the death penalty but draws a “bright line of distinction” around executing people with severe mental illness. There are some variations in the bills, but each creates a process in which a determination is made—usually by a judge—whether the defendant qualifies for the exemption. Some bills define serious mental illness by particular diagnoses, others by behavioral impairments in functioning. Qualifying diagnoses under the exemption typically included Schizophrenia and Schizoaffective Disorder, Bipolar Disorder, Major Depressive Disorder, Post-Traumatic Stress Disorder, and Traumatic Brain Injury. Defendants found to be suffering from severe mental illness would not be exempted from criminal responsibility, but would be subject to a maximum sentence of life without parole. Numerous mental health organizations have called for an exemption to the death penalty for individuals with severe mental illness. The measures have the support of the American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness (NAMI), Mental Health America (MHA), and state-level coalitions of mental health advocates. In December 2016, the American Bar Association held a national summit and issued a white paper in support of a severe mental illness exemption. Several religious leaders also have spoken out in favor of the exemption. Richard Cizik, President of the New Evangelical Partnership for the Common Good, wrote an op-ed for The Virginian-Pilot in late January saying, "Their conditions affect many aspects of the legal process, impacting their appearance in court, the jury’s perception of ticks or socially inappropriate interactions, the defendant’s presentation of facts, and even their own admission of guilt. Indeed, studies have shown that defendants with severe mental illness are more likely to give a false confession. ...As a faith leader, I am compelled to advocate for compassionate and fair laws such as this." Glenn Tebbe, executive director of the Indiana Catholic Conference, called the bill "prudent and just."

Judge Grants Dylann Roof's Request to Represent Himself in Federal Death Penalty Trial

U.S. District Court Judge Richard M. Gergel granted a request on November 28 from Dylann Roof (pictured), the 22-year-old charged with the murders of  nine members of the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, to represent himself in his federal capital trial. Judge Gergel described Roof's decision as “strategically unwise,” but said, “It is a decision you have the right to make.” A criminal defendant's right to self-representation was established by the Supreme Court in 1975 in Farretta v. California, a non-capital case where the Court held that a defendant may waive his right to counsel provided such waiver is knowing, voluntarily, and intelligent. In Roof's trial, the judge had temporarily halted jury selection in the trial on November 7, when Roof's attorneys requested a determination of Roof's mental competency to stand trial. After a two-day hearing, which was closed to the public because statements Roof made to a psychologist might taint the trial, Judge Gergel found Roof fit to stand trial. Jury selection is set to begin on November 28th, with 516 potential jurors reporting to the courthouse for questioning. After Roof's federal trial, the state of South Carolina also plans to try him. He faces a death sentence in both trials. While the Supreme Court has not addressed whether a capital defendant may waive his right to counsel, death penalty experts have argued that such defendants should not be allowed to represent themselves, because of the complexity of capital cases and the finality of the sentence. Cornell Law Professor John Blume wrote, "when it comes to a criminal defendant facing society's ultimate punishment, the defendant's more symbolic interests in dignity and autonomy are outweighed by the criminal justice system's interests, as well as society as a whole's interests, in accuracy and fairness." Last year, a Kansas judge permitted White Supremacist Frazier Glenn Cross to represent himself in a case in which he was charged with murders at a Kansas City Jewish Community Center. His lawyers had intended to present a mental health defense to the murders. After a controversial trial punctuated by outbursts by the defendant, the jury sentenced Cross to death.

Circuit Court Overturns South Carolina Death Sentence for Prosecutor's Racially Inflammatory Argument

The U.S. Court of Appeals for the Fourth Circuit has upheld a federal district court's decision ordering a new sentencing hearing for Johnny Bennett, a black man who was sentenced to death by an all-white South Carolina jury in a trial tainted by a prosecutor's racially-inflammatory cross-examination and argument. Bennett was prosecuted by Donald Myers (pictured), known as “Death Penalty Donnie” for having sent 28 South Carolina defendants to death row. In response to defense argument at Bennett's sentencing proceedings in 2000 that Bennett would not pose a future danger to society if incarcerated for life, Myers repeatedly invoked violent animal references, calling Bennett "King Kong on a bad day," a “caveman,” a “mountain man,” a “monster,” a “big old tiger,” and “[t]he beast of burden.” Earlier in the trial, Meyers had elicited irrelevant testimony that a white witness whom Bennett had assaulted when he was a juvenile had dreamt of "being chased by black savages." The prosecuter also gratuitously asked a witness about sexual relations Bennett had had with a "blonde-headed" prison guard. A juror later described Bennett as "just a dumb ni**er." The South Carolina Supreme Court upheld Bennett's sentence, saying that the "King Kong" comment was “not suggestive of a giant black gorilla who abducts a white woman, but rather, descriptive of [Bennett’s] size and strength as they related to his past crimes.” It ruled that the jurors comments did not show that he was “racially biased at the time of the ... trial.” In March 2016, a federal district court overturned Bennett's sentence, saying that Myers had "made multiple statements clearly calculated to excite the jury with racial imagery and stereotypes." The District Court judge called Myers' arguments "a not so subtle dog whistle on race that this court cannot and will not ignore." Judge J. Harvie Wilkinson, writing the Fourth Circuit opinion called Myers' comments "unmistakably calculated to inflame racial fears and apprehensions on the part of the jury." He wrote, "It is impossible to divorce the prosecutor’s 'King Kong' remark, 'caveman' label, and other descriptions of a black capital defendant from their odious historical context. And in context, the prosecutor’s comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution." John Blume, who represented Bennett in the Fourth Circuit argument, said it was "antithetical to the criminal justice system for a prosecutor to pander to an all-white jury's racial fears and implicit biases."

Two Studies Find Persistent Discrimination in Jury Selection in North and South Carolina

Two recent studies examining the effects of Batson v. Kentucky found that, despite the Supreme Court's ban on racial discrimination in jury selection, Black jurors continue to be disproportionately removed from jury pools in North and South Carolina. Batson, the case that banned the practice of striking jurors on the basis of race, has garnered recent attention because of a recent Supreme Court case, Foster v. Chatman. In Foster, the trial court denied a Black defendant's challenges to the prosecutor's removal of all Black jurors, saying the prosecution had offered race-neutral reasons for those strikes. Years later, through an open records request, Foster's lawyers obtained the prosecution's jury selection notes, which highlighted the names and race of all the prospective Black jurors, put all of the Black jurors on a list of jurors to "definitely strike," and the Black jurors against one another in case "it comes down to having to pick one of the black jurors." A study by Daniel R. Pollitt and Brittany P. Warren in the North Carolina Law Review found that discriminatory practices similar to those in Foster were widespread in North Carolina capital cases, but repeatedly ignored by the state's courts: "In the 114 cases decided on the merits by North Carolina appellate courts, the courts have never found a substantive Batson violation where a prosecutor has articulated a reason for the peremptory challenge of a minority juror." The authors found that the North Carolina Supreme Court had been called upon to decide jury discrimination issues in 74 cases since Batson was decided in 1986, and that "during that time, that court has never once found a substantive Batson violation." By contrast, they said, every other state appellate court located in the Fourth Circuit had found at least one substantive Batson violation during that period. The authors argue, "Thirty years after Batson, North Carolina defendants challenging racially discriminatory peremptory strikes still face a crippling burden of proof and prosecutors’ peremptory challenges are still effectively immune from constitutional scrutiny." A study of South Carolina capital juries by Assistant Professor Ann M. Eisenberg of the University of South Carolina School of Law found that prosecutors exercised peremptory strikes against 35% of otherwise eligible Black prospective jurors, nearly triple the rate (12%) at which they struck otherwise eligible White prospective jurors. Eisenberg also examined the death-qualification process, which excludes jurors who are opposed to capital punishment from serving on death penalty juries. Eisenberg says death-qualification removes "approximately one-third of the population, most of whom are women and African-Americans" from serving on death penalty juries and "functioned as a substantial impediment to jury service by African-Americans in this study." Eisenberg concluded that "removal of jurors for their opposition to the death penalty stands in tension with a defendant’s Sixth and Fourteenth Amendment Rights and Supreme Court jurisprudence." The combined effects of peremptory strikes and the death-qualification process was even starker. Prior to these strikes, Blacks comprised 21.5% of the prospective jury pool. However, 47% of all Black jurors were removed by one or the other of these strikes, as compared with only 16% of White jurors, reducing the percentage of African Americans in the jury pool to only 14.7%.

Fair Punishment Project Issues Report on Deadliest Prosecutors

A new report by Harvard Law School's Fair Punishment Project has found that a small number of overzealous prosecutors with high rates of misconduct have a hugely disproportionate impact on the death penalty in the United States. The report, "America's Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty," shows that, by themselves, these prosecutors are responsible for more than 440 death sentences, the equivalent of 15% of the entire U.S. death row population today. Exploring what it calls "the problem of personality-driven capital sentencing," the report details the effects of Joe Freeman Britt of Robeson County, North Carolina; Robert Macy of Oklahoma County, Oklahoma; Donald Myers of the 11th Judicial District of South Carolina; Lynne Abraham of Philadelphia, Pennsylvania; and Johnny Holmes of Harris County, Texas. Britt, Macy, and Myers personally prosecuted a combined 131 cases that resulted in death sentences, while Abraham and Holmes oversaw offices that the report says imposed 108 and 201 death sentences, respectively. They also disproportionately sent innocent people to death row, prosecuting 1 out of 20 of the nation's death-row exonerees. The report found similar patterns involving these prosecutors, including high rates of prosecutorial misconduct, statements and actions that revealed a win-at-all-costs mentality, and a sharp decrease in death sentences once they and their proteges left office. Britt, Macy, and Myers were found to have committed misconduct in one-third to 46% of the death penalty cases they prosecuted. Prosecutors in Abraham's and Holmes' offices were found to have engaged in misconduct, including racially-biased jury selection and failures to disclose favorable evidence. Of the five prosecutors profiled in the report, only Myers—who is not seeking re-election—is still in office. After the other four prosecutors left office, the number of death sentences has declined significantly. Robeson County has imposed two death sentences in the last 10 years, Oklahoma County and Philadelphia County have each imposed three in six years, and Harris County dropped from an average of 12 death sentences a year during Holmes' last decade as prosecutor to one a year since 2008.

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