Prosecutor's 'racially coded references' require reversal of death sentence, 4th Circuit rules

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Death penalty.

A South Carolina inmate’s death sentence must be reversed because the prosecutor compared the defendant to King Kong and used other “racially coded references,” a federal appeals court has ruled.

The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals ruled (PDF) on Monday in a habeas appeal by Johnny Bennett, who was convicted of murder, kidnapping and armed robbery. He was sentenced to death by an all-white jury in 2000 after reversal of his original death sentence.

The prosecutor, identified in the opinion as Donald Myers, “chose to use racially charged language from the first sentence of his opening argument to his final soliloquy,” the appeals court said, “casting aside the race-neutral presentation he had employed” with the first, mixed-race jury that sentenced Bennett to death.

Most egregious, the appeals court said, was Myers’ closing argument in which he said that if jurors did not impose the death penalty, “vile Johnny” would return. Meeting Bennett, Myers said, would be “like meeting King Kong on a bad day.”

Myers also labeled Bennett a “caveman,” a “mountain man,” a “monster,” a “big old tiger,” and a “beast of burden,” the appeals court said.

Myers also elicited “inflammatory testimony” from a witness who recalled a dream about being chased by murderous black Indians, the court said. When questioning another witness, Myers referred to Bennett’s sexual partner as a “blonde-headed lady,” which alerted jurors to the interracial relationship, according to the appeals court.

The South Carolina Supreme Court had acknowledged the King Kong statement could have racial connotations, but said the reference conveyed Bennett’s size and strength and was a response to the defense portrayal of Bennett as a peaceful and helpful man in prison. The South Carolina court also said the “caveman” comment referred to past testimony about Bennett pulling someone by the hair.

The 4th Circuit disagreed. “With all respect, these were unreasonable findings of fact,” the 4th Circuit said in the opinion by Circuit Judge J. Harvie Wilkinson. “The prosecutor’s argument here exceeded all permissible bounds.”

“We understand that closing arguments can be florid,” Wilkinson wrote. “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 appeals court said its decision made it unnecessary to consider Bennett’s claim about alleged racial bias, which stemmed from a juror’s use of the N-word when referring to Bennett in a post-trial interview with Bennett’s lawyer.

Myers didn’t immediately respond to an ABA Journal email and phone message requesting comment.

The Wall Street Journal Law Blog and Count on 2 covered the opinion.

Hat tip to @ZoeTillman.

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