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'Racially Coded References' Cost a Prosecutor the Case

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By Casey C. Sullivan, Esq. on November 22, 2016 12:57 PM

A prosecutor's use of 'racially coded references' means that a South Carolina man's death sentence must be reversed, the Fourth Circuit ruled yesterday. Johnny Bennett, who is African American, had been convicted of murder, kidnapping, and armed robbery and sentenced to death by an all-white jury.

But Bennett's sentencing was so full of winking racism that it made a fair proceeding impossible, the Fourth ruled.

A Racially-Tinged Take for an All-White Jury

The all-white jury that sentenced Bennett to death was actually the second jury to give him the death penalty. Bennett had originally been convicted in 1995, then sentenced in a separate penalty proceeding by a mixed-race jury. That sentence was reversed by the South Carolina Supreme Court.

In the second sentencing proceeding, held in 2000, Bennett's lead prosecutor, Donald Myers, switched tactics. As Judge J. Harvie Wilkinson wrote for the unanimous three-judge panel:

[T]his time, the jury was composed of white jurors only. And before this all-white jury, Myers chose to use racially charged language from the first sentence of his opening argument to his final soliloquy, casting aside the race-neutral presentation he had employed with the mixed-race jury.

Myers called Bennett a "monster," a "caveman," and told the jury that "Meeting [Bennett] again will be like meeting King Kong on a bad day." He pointed out Bennett's interracial relationship with a prison guard and elicited irrelevant testimony from a state's witness about "a dream in which he was chased by murderous, black Indians."

References "Unmistakably Calculated to Inflame Racial Fears"

The Fourth Circuit rejected the state Supreme Court's finding that the prosecutor's comments were not racially inflammatory, describing them as "unreasonable findings of fact." Focusing on the King Kong closing arguments, the Fourth wrote that:

We understand that closing arguments can be florid. Vivid expression and exaggeration for effect are many an attorney's stock-in-trade. But the remarks challenged here were unmistakably calculated to inflame racial fears and apprehensions on the part of the jury.

The racial undertone of Myers's comments was highlighted by the fact that he had twice lead Bennett's sentencing proceedings. In the first, before a mixed-race jury, Myers successfully secured a capital sentence, while managing to "respect the Constitution's prohibition on appeals to racial prejudice," the court wrote. Tasked with repeating that feet a second time, before an all-white jury, "the prosecutor suddenly and tellingly took a different, race-oriented approach."

Myers's tactics "exceeded all permissible bounds," the court concluded.

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