By Kelsey Mellan
On November 21, 2016, the Fourth Circuit issued a published opinion in Bennett v. Stirling, a prisoner death penalty appeal involving a prosecutor’s racially charged remarks throughout a sentencing hearing. Petitioner Johnny Bennett (“Bennett”) challenged the imposition of a capital sentence in South Carolina courts. While the Fourth Circuit recognized that courts typically give great deference to death sentence decisions pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this court agreed with the district court that prosecution comments made during Bennett’s sentencing were so racially charged that a fair proceeding was impossible. Therefore, the Fourth Circuit affirmed the district court’s grant of habeas relief.
Facts & Procedural History
In 1995, Bennett, an African-American male, was convicted of murder, kidnapping, armed robbery, and larceny in a South Carolina trial court. A mixed-race jury sentenced Bennett to death for murder. On appeal, the South Carolina Supreme Court upheld the convictions but reversed the death sentence, ordering the trial court to conduct a new sentencing hearing. This sentencing hearing was held in 2000, in front of a panel composed of only white jurors. Before this jury, prosecutor Donald Myers (“Myers”) chose to use racially charged language from the beginning of his opening argument all the way throughout the hearing until the end of his closing statement (as opposed to the racially neutral presentation he had given to the mixed-race jury). He referred to Bennett as “King Kong,” a “caveman,” a “monster,” and a “big old tiger.” Myers also alluded to Bennett’s sexual relationship with a “blonde-headed lady,” informing the jury of Bennett’s interracial relationship with one of the prison guards at the correctional facility where he was housed.
Despite these numerous derogatory remarks, the trial court denied Bennett’s motion for a new trial. The court determined that the labels of “King Kong” and “cave man” did not result in the denial of Bennett’s due process rights and therefore did not warrant a new sentencing hearing. The South Carolina Supreme Court affirmed the death sentence, holding that the derogatory remarks “did not improperly inject racial issues into the trial.” In 2008, Bennett sought post-conviction relief in state court, alleging that one of the jurors in the 2000 panel was racially biased and thus the seating of that juror violated his 6th and 14th Amendment rights to an impartial jury. The state court denied relief on the grounds that the juror was not actually biased at the time of the 2000 hearing, and the South Carolina Supreme Court denied certiorari.
In 2014, Bennett filed the instant petition for federal habeas relief under 28 U.S.C. § 2254 on the grounds of prosecutorial misconduct and juror bias. In Bennett v. Stirling (D.S.C. 2016), the district court granted relief on both grounds, vacated Bennett’s death sentence, and remanded the case to the Lexington County Court of General Sessions for resentencing within 180 days of the order. The district court vacated and remanded because the state court unreasonably determined that Myer’s racially motivated derogatory remarks about Bennett appealed to racial prejudice. This case stemmed from the respondents’ appeal.
Under § 2254(d), as amended by the AEDPA, a federal court may not grant a state prisoner’s habeas petition unless the state court’s adjudication of the prisoner’s claim was legally or factually unreasonable. Relief is only allowed if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” However, relief can be permitted where the state court’s decision was based on an unreasonable determination of the facts based on the evidence presented in the State court. Therefore, federal courts must give state courts great deference. Section 2254 imposes a substantial hurdle to habeas relief because, as the Supreme Court stated in Jackson v. Virginia, habeas relief is a “guard against extreme malfunctions in…criminal justice systems” rather than ordinary error correction.
The “clearly established Federal law” at issue in this case is from the Supreme Court decision, Darden v. Wainwright. In Darden, the Supreme Court held that a prosecutor’s improper comments offend the Constitution if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Courts must view the questionable comments in the context of the entire record, rather than analyzing the comments in a vacuum. However, the Supreme Court noted in United States v. Young, “the line separating acceptable from improper advocacy is not easily drawn.” While prosecutors retain substantial latitude to present their cases as they see fit, the Constitution condemns racially derogatory prosecutorial arguments. Moreover, because the punishment at issue is a death sentence, the Fourth Circuit could not “avert their eyes from racial prejudice” because of the finality of the punishment.
Prosecutions’ Racially Charged Remarks Constituted Due Process Violation
The Fourth Circuit decided the South Carolina state courts unreasonably determined that the prosecutor’s comments about Bennett throughout the trial were not appeals to racial prejudice and thus, unreasonably concluded that Bennett’s due process rights were not violated. In particular, the prosecutor’s derogatory references to Bennett during his closing arguments – characterizing Bennett as a primitive, sub-human species and a wild animal – were “unmistakably calculated to inflame racial fears” in the jury. Additionally, the Fourth Circuit determined that the state court’s acceptance of the prosecution’s “King Kong” and “caveman” comments was obviously unreasonable. “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.” While courts must be deferential to prosecutor’s trial strategies, the prosecutor’s specific derogatory statements about Bennett “plugged into potent symbols of racial prejudice, encouraging the jury to fear Bennett or regard him as less human on account of his race.”
In addition to the content of the derogatory remarks, the particular circumstances of the case confirmed that the comments were appeals to racial prejudice rather than neutral descriptions of Bennett’s size or strength. The prosecutor could have easily highlighted Bennett’s size or physical features in a neutral matter. In fact, in the earlier sentencing hearing, the state used cardboard cutouts to convey Bennett’s size in comparison to his victim. However, the prosecutor methodically chose inflammatory phrases to dehumanize Bennett to the all white jury.
The Fourth Circuit further explained that the prosecutor’s statements regarding Bennett’s race violated his due process rights when considering the “procedural distortion wrought by the challenged remarks.” In McCleskey v. Kemp, the Supreme Court emphasized the importance of jurors focusing “their collective judgment on the unique characteristics of a particular criminal defendant.” Here, the Fourth Circuit was firmly convinced that the prosecutor’s closing comments risked “reducing Bennett to his race” and diminished the jury’s ability to objectively determine an appropriate punishment.
Moreover, when looking to the record as a whole, the Fourth Circuit decided there was nothing isolated about the prosecutor’s derogatory references. In Donnelly v. DeChristoforo, the Supreme Court decided that an isolated remark from a prosecutor regarding a habeas petitioner’s race did not violate his due process rights as it “was but one moment in an extended trial.” Here, in contrast, the prosecutor’s misconduct was “pronounced and persistent with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential.” When taken in comparison to the racially-neutral arguments made to the mixed-race jury, it became all the more evident that the prosecutor’s derogatory language was unnecessary and calculated. The Fourth Circuit ultimately held that the motivation behind the prosecutor’s prejudiced comments, coupled with the lack of curative instruction to the jury, warranted habeas relief. The Fourth Circuit concluded its discussion in this case by cautioning: “The criminal justice system must win the trust of all Americans by delivering justice without regard to the race or ethnicity of those who come before it…a proceeding like this one threatens to tear that trust apart.”
Therefore, the Fourth Circuit affirmed the district court’s grant of habeas relief.