This week, a federal court vacated a death sentence for Mr. Johnny Bennett, a man I’ve met. I met him accidentally, when I was trying to visit another death row inmate with a similar name. He was a large, tall African-American, and I was expecting a smaller white guy. I apologized for the confusion — he had to be shackled to be escorted to the visitation room — but he smiled easily when we shook hands, said it happened often, and that he was glad to get a little fresh air on the walk over. I liked him.
As with many inmates, he was a likable guy on first impression. I didn’t know about his crime, or whether he’d actually committed it, but I doubted he’d gotten a fair trial, just because most don’t. South Carolina, like other states, has a hard time giving someone a fair trial when they’re accused of murder. At one point recently, I saw a statistic that 70% of death sentences in South Carolina were being overturned, many by South Carolina’s own reviewing courts.
But this one got through that state gauntlet. In 2000, an all-white jury voted for the death penalty, after what the federal court later described as “repeated direct and indirect references to race made or elicited by Solicitor [Prosecutor Donald V. (“Donnie”)] Myers and vigorous objections by defense counsel, who argued that the prosecutor was intentionally injecting race into the trial.”
Prosecutors are human and they like to win; many of them will cross lines if no one calls them on it. Trial judges are supposed to be referees who keeps trials fair. In this case, the trial judge made several odd rulings and statements, including, in response to a statement about the race of a guard that Mr. Bennett had had a relationship with, “[W]hen somebody says blonde, I don’t necessarily see a white woman.” In closing arguments, Myers “made repeated references to Mr. Bennett’s size (6’7”, 300 pounds)” and referred to him as “King Kong on a bad day,” a “monster,” a “caveman,” and a “beast of burden.” And remember, this happened here in the 21st century.
Mr. Bennett’s post-conviction lawyer later asked one of the jurors why he thought Mr. Bennett had killed the victim. The juror’s response was, “because he was just a dumb nigger.” That juror testified at a hearing that he was not prejudiced and that race had played no part in his decision to impose the death penalty.
In 2006, just ten years ago (as in “not ancient Southern history”), the South Carolina Supreme Court said it was fine to execute Mr. Bennett despite all this successful race-baiting, because there was no evidence that the juror was prejudiced at the time that Mr. Bennett’s sentence was imposed. I suppose he thought the juror’s racism was a recent development. This, despite the juror’s testimony, after apologizing for “saying that word,” that “that was just the way I felt about it.”
The defense attorney did what he could, but he couldn’t prevent the prosecutor deliberately injecting race into the trial. The prosecutor should not have done it. The trial judge should not have allowed it. The state supreme court should not have let it stand. They all did. It had to get to federal court before anyone saw a problem.
Mr. Bennett has been incarcerated since his indictment in 1993 – that’s 23 years, mostly on death row — and he still hasn’t had a fair trial. I congratulate him and his lawyers on getting him another chance at one. But good luck.
1. Our criminal justice system is not post-racial. To fix this broken system, we’ll need some folks with defense-side experience on the state and federal benches, including the US Supreme Court. We can’t rely on prosecutors and trial judges to make sure trials are fair.
2. Our elected state appeals court judges take some ridiculous positions to avoid overturning a death sentence. We can’t rely on them to ensure that the trials they’re reviewing were fair.
3. We need the federal courts doing their job of reviewing what happens in state courts.