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A Judge Overturned a Death Sentence Because the Prosecutor Compared a Black Defendant to King Kong

The South Carolina prosecutor is known as ‘Death Penalty Donnie.’

A federal trial judge in South Carolina last week overturned the death sentence of a man convicted of stabbing his victim more than 70 times with a screwdriver. The sentencing phase of the trial of Johnny O’Landis Bennett was so infected by racial animus by the prosecutor and a juror, U.S. District Judge Richard Mark Gergel concluded, that Bennett was deprived of his constitutional right to due process.

The granting of habeas relief is a rare thing these days, but Judge Gergel’s order in the Bennett case is remarkable for two other reasons. First, it highlights the lack of meaningful judicial review capital cases like this receive from state judges in South Carolina, jurists who time and again in Bennett’s case excused the racist theme of the hearing. Second, the judicial rebuke marks a fitting epitaph for the professional career of Donald V. Myers, a legal legend in that neck of the woods.

Myers, also known as “Doctor Death” and “Death Penalty Donnie,” sent 28 people to death row in South Carolina during his decades as the state’s most flamboyant prosecutor. In doing so he earned public praise and the scorn of countless defense attorneys whose clients endured Myers’ courtroom theatrics. Once, grieving the death of his own son in 2003, Myers pressed for the death penalty against Robert Northcutt, who had confessed to killing his 4-year-old daughter because she wouldn’t stop crying. Here’s how one reporter in 2006 chronicled what happened at the trial:

Myers snubbed the defense attorney by reading the sports section of The State newspaper when the attorney questioned witnesses. Myers bent a doll's back over a crib's rail to show jurors how Northcutt broke his daughter's back.

In his closing argument, he covered the crib with a black cloth and wheeled it past the jury box like a funeral procession. In the crib was a sheet that belonged to his son.

"He was always with me," Myers said, fighting back tears. "That was a way of keeping him close to me."

Myers cried at least 16 times during his closing argument, according to an appeal of the case filed with the state Supreme Court.

Northcutt's lawyer, David Bruck, said Myers was out of control. Bruck objected 20 times during Myers' argument, including when Myers said a life sentence would "declare open season on babies in Lexington County.”

Earlier this month, after his second drunk driving arrest, but before Judge Gergel admonished him, Myers announced that he won’t run again when his current term expires in January. And now Bennett’s fate is again uncertain. A black man convicted of murdering another black man, Bennett was first sentenced to death in 1995. That conviction was overturned in 1997 when the lawyers learned that a juror had been seated in the capital trial even after he said he would “go with the majority of the jury” even if he had doubts “as to whether the defendant should get the death penalty.”

Bennett, a large, hulking man, then was re-sentenced to death in 2000 by an all-white jury in Lexington County. When one witness, a white woman, testified that Bennett had attacked her weeks before the murder, Myers asked the witness if she had dreamt of anything while in a coma. Yes, she told jurors, “Indians were chasing me trying to kill me, and the thing I thought was they were black.” Both before and after that answer, Bennett’s lawyer objected and moved for a mistrial. It was denied; the prosecutor had not elicited the “black Indian” dream testimony, a state judge subsequently (and erroneously) ruled.

Later, Myers introduced testimony that Bennett had had sex with a female prison guard while awaiting his trial. During his cross-examination of the witness, Myers identified the guard as “the blond-headed lady.” Again, Bennett’s lawyer immediately objected and asked for a mistrial, arguing that Myers had improperly signalled the all-white Southern jury that the big black defendant had a white lover. The trial judge again overruled the defense, declaring in open court: “maybe it [sic] just the way things are these days, but when somebody says blond, I don’t necessarily see a white woman.” All of this was a precursor to Myers’ closing argument. Bennett’s lawyer had claimed his client had been a compliant prisoner, that he would not pose a future danger if given a life sentence. To this Myers responded by calling Bennett “a monster” and a “caveman” and a “beast of burden” before telling jurors this:

“If you give him life, the real Johnny will come back. You give him life and he’ll come back out. Meeting him again will be like meeting King Kong on a bad day.”

Another request for a mistrial. Another denial by the trial judge. And Bennett was sentenced to death. Then, six years later, one of Bennett’s post-conviction lawyers asked one of the jurors from that 2000 sentencing why the juror had thought Bennett had killed his victim.” “Because he was just a dumb nigger,” the juror candidly responded. “I apologize for saying that word,” the juror then said under oath, “but after going through that thing for an entire week and all the evidence piling up against him, that was just the way I felt about it.”

Even this admission from one of the people who put Bennett on death row did not sway the South Carolina courts. The juror’s post-trial statement did not justify granting Bennett relief, state court judges concluded in 2006, because it did not establish that the juror was “racially biased at the time of the resentencing trial.” Seven years later, in 2013, the South Carolina Supreme Court refused to reconsider that issue. One year after that Bennett’s attorneys filed their federal habeas petition.

Which brings us back to Judge Gergel. “It is notable that none of the reviewing (state) courts evaluated the potential impact of these various racially charged statements or evidence collectively, analyzing each in isolation,” he wrote in his March 16 order. “Further, no court addressed what was clearly [Myers’] calculated effort to introduce the challenged evidence.” But the federal judge saved his most pointed analysis for Myers’ “King Kong” reference during closing argument. He wrote:

“The Court is mindful that the state courts have characterized [Myers’] King Kong statement as a harmless reference to [Bennett’s] immense size without any racial overtones. The Court finds such an analysis involves ‘an unreasonable determination of the facts in light of the evidence…’

The fact that [Bennett] is a very large black man makes the King Kong reference even more odious and inflammatory in this case because it plays upon a racist stereotype of the bestial black savage that seems calculated to animate and excite the all-white Lexington County jury.”

Judge Gergel also tackled the issue of the juror who had called Bennett “just a dumb nigger.” The South Carolina courts had failed here, also, to protect Bennett’s constitutional rights to a fair trial free from racial animus. “If this blatant statement of racial hostility does not amount to evidence of constitutionally impermissible racial bias,” the judge wrote, “it is hard to imagine what evidence could meet that standard.”

Myers promised last week to appeal Judge Gergel’s order and it’s likely that this appeal, to the 4th U.S. Circuit Court of Appeals, will outlast the remainder of Myers’ career in public office. He did not respond to a request for comment from The Marshall Project. Meanwhile, for all the bluster, six of Myers’ 28 capital defendants have been executed. Another 12 have had their sentences shortened to life without parole.