South Carolina

South Carolina

South Carolina Seeks Drug-Secrecy Law to Carry Out Execution that was Never Going to Happen

Claiming that a lack of lethal-injection drugs was preventing the state from executing Bobby Wayne Stone (pictured, right) on December 1, South Carolina Governor Henry McMaster (pictured, left) urged state legislators to act quickly to enact an execution-drug secrecy law. But as McMaster and Department of Corrections Director Bryan Stirling held a press conference outside barbed-wire fences at the Broad River Capital Punishment Facility in Columbia, South Carolina on November 20, they knew, critics say, that there was no lethal-drug emergency and that the death warrant against Stone was never going to be carried out. Since his conviction and death sentence in 1997, Stone has been actively pursuing the court review of his case to which he is entitled as a matter of state and federal law. The South Carolina Supreme Court overturned Stone's death sentence in 2002, but he was resentenced to death in 2006. In February 2017, after completing the state direct appeal and post-conviction appeal processes, the South Carolina Supreme Court affirmed Stone's death sentence. In April, he asked the federal court to appoint counsel to represent him in federal habeas corpus proceedings challenging his conviction and death sentence. At a telephone conference with a federal district court judge one week prior to the press conference, lawyers for Stone and the state attorney general's office agreed to a procedure by which the court would stay Stone's execution to permit his lawyers to file his habeas petition. The parties agreed to a November 21 deadline for Stone to file his stay motion, and he filed the motion on November 20. The state attorney general's reponse, also filed November 20, "agree[d] that the issuance of a stay of execution [was] warranted." The federal court granted the stay of execution on November 21. Justice 360, a non-profit legal services organization that tracks death-penalty issues in South Carolina, criticized the press conference at the prison as a public relations ploy. In a news release, its executive director, Lindsey Vann said: "The Director of the South Carolina Department of Corrections ... knew a stay would be issued by the court. He nevertheless chose to make public statements implying otherwise in an attempt to force the General Assembly to pass a 'secrecy' bill that would allow the State to purchase unsafe drugs for execution and shield their source from the public." In its daily newsletter, the "Opening Statement," The Marshall Project summarized the issue, "Officials in South Carolina ginned up a death penalty deadline — a death warrant that a judge promptly declared premature — to press state lawmakers for new injection secrecy rules." Governor McMaster said at the press conference that executions in South Carolina were "at a dead stop" because the state lacked execution drugs. He said "[t]he reason we don't have the drugs despite intense efforts to get them is because the companies that make them, the distributors who distribute them and the pharmacies who may have to compound them don't want to be identified." All of the FDA-regulated pharmaceutical manufacturers in the U.S. that produce drugs used in executions oppose the use of their products for capital punishment and have distribution agreements with drug suppliers that prohibit the sale of their medicines to states for use in executions. Governor McMaster said a secrecy law was necessary because potential suppliers are "afraid that their names will be made known and they don't want to have anything to do with it for fear of retribution or exposure." The South Carolina legislature has twice in the past rejected execution secrecy bills. Vann said Justice 360 was "disappointed" that the Department of Corrections was "attempting to mislead the press and the public, especially if [Stirling] led the victim’s family to believe that an execution was imminent."

Taken Off Death Row in 2014, Intellectually Disabled South Carolina Man Now Gets New Trial

South Carolina prosecutors announced on July 25 that they would not appeal a trial court ruling, granting a new, non-capital trial to former death-row prisoner Kenneth Simmons (pictured). Finding that prosecutors had presented false DNA testimony that "severely deprived" Simmons of his due process rights, a Dorchester County Circuit Judge overturned Simmons's conviction. Simmons had been sentenced to death for the 1996 sexual assault and murder of an elderly woman based on false and misleading DNA testimony that purported to link him to the murder and a confession obtained under questionable circumstances. Simmons's death sentence was vacated in 2014 and replaced with a life sentence after the South Carolina Supreme Court determined that he has Intellectual Disability. In 2002, the U.S. Supreme Court ruled in Atkins vVirginia that applying the death penalty to persons with Intellectual Disability violates the Eighth Amendment prohibition against cruel and unusual punishments. Prosecutors had initially asked Judge Doyet A. Early III to alter his 2016 decision granting Simmons a new trial. On June 23, he declined, reaffirming his finding that the prosecution's "misrepresentation of the strength of the DNA evidence to the jury" was "overwhelming," given that the confession had been extracted from "an intellectually disabled man, after multiple non-recorded interrogations, [who] had falsely confessed to other crimes before confessing to the murder." Judge Early wrote that the prosecution had presented the jury with "confusing, misleading, and inaccurate" information about the DNA evidence, including showing the jury a chart that contained fabricated DNA results, using the chart to make additional incorrect claims about the DNA evidence during closing arguments, and falsely arguing that Simmons was the only possible source of the DNA. During state post-conviction proceedings, the state's forensic witness recanted her testimony about the DNA, and the court found that her trial testimony "had no evidentiary value in identifying" Simmons. Simmons's efforts to obtain a new trial drew support from The Innocence Network and advocacy groups for people with disabilities, which stressed the increased risk of false confessions and wrongful conviction in cases with intellectually disabled defendants. In 2000, Virginia Governor Douglas Wilder commuted the death sentence imposed on another intellectually disabled death-row prisoner, Earl Washington, who had falsely confessed to a rape and murder after DNA testing suggested he had not committed the offenses. Governor Jim Gilmore later granted Wahington a complete pardon after additional DNA testing excluded him as the rapist. In 2014, two intellectually disabled brothers, Henry McCollum and Leon Brown were freed because of evidence uncovered by the North Carolina Innocence Inquiry Commission, three decades after having been sentenced to death for the rape and murder of an 11-year-old girl. Both had been subjected to coercive interrogations and said they were unaware they were signing a confession.

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."

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