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.”