Mimesis Law
20 October 2021

Fourth Circuit To Prosecutors: No Playing The Race Card

November 29, 2016 (Fault Lines) — Lawyers deal in persuasion. Part of being an effective advocate requires you learn how to sway a trier of fact to secure the best possible outcome for your side. Still, there are lines you don’t cross when attempting to persuade a judge or jury. One of those is exploiting a black defendant’s race with racially charged tactics to scare an all-white jury into delivering a death sentence.

The Fourth Circuit Court of Appeals explicitly condemned this tactic in the case of Johnny Bennett. Prosecutors don’t get to “play the race card” at trial, especially when seeking a death sentence.

Bennett was convicted in 1995 in South Carolina for murder, kidnapping, armed robbery, and larceny. Once the trial concluded, Solicitor Donald Myers asked a mixed-race jury to impose the death penalty because Johnny Bennett was a big guy (6’6”, 300 pounds) who killed a smaller guy (5’7”, 135 pounds, if statistics interest you).

The jury sentenced Johnny Bennett to die, but the South Carolina Supreme Court said that wasn’t enough to justify the death penalty. While affirming all the convictions, South Carolina Supremes granted Johnny Bennett a new sentencing hearing. Unfortunately for Johnny Bennett, this second chance would fare no better.

This new sentencing hearing was in front of an all-white jury with a prosecutor ready to kill. From the opening argument to summation, Solicitor Myers used every racially charged tactic possible to keep the death sentence he worked so hard to get at trial. He referred to Johnny Bennett as a “caveman,” “mountain man,” “monster,” “big old tiger,” and a “beast of burden.” Myers admonished the jury that any sentence other than death meant if Bennet got out and saw one of the jurors, it would “be like meeting King Kong on a bad day.”

Equating a black man with a fictitious gigantic gorilla who broke from his cage, kidnapped a white woman, and climbed the Empire State Building wasn’t enough. Solicitor Myers would go for the jugular by referring to an alleged sexual relationship Johnny Bennett had with a white female prison guard “no fewer than seven times” and bring in completely irrelevant testimony from a white woman Bennett allegedly assaulted “several years earlier” that had a recurring dream of black Indians chasing after her, trying to kill her. With a presentation like that, it’s a wonder the jury just affirmed the death sentence and didn’t try to hang Johnny Bennett on the courthouse steps.

Fortunately, Johnny Bennett’s counsel timely objected during Myers’ summation, moved for a mistrial, and appealed the verdict all the way to the South Carolina Supreme Court. At every step, the courts looked the other way. The trial court brushed the King Kong reference aside as an “invited response to the defense’s portrayal of Bennett as a peaceful and helpful prison citizen.” South Carolina’s Supremes didn’t do too much better. They acknowledged the “King Kong” remark “could have racial connotations,” but was really more about Bennett’s “size and strength as they related to his past crimes.” The “caveman” comment was “merely descriptive” of testimony that Bennett had twice pulled someone else by the hair. Many would give up by this point, but Johnny Bennett would not go away quietly. His last ditch effort at post-conviction relief landed his cries before the Fourth Circuit Court of Appeals, which handed Solicitor Myers and the State trial courts what can best be termed “a polite smackdown.”

Judge J. Harvie Wilkinson III’s 19 page opinion painstakingly affirms the deference federal courts owe state courts when considering a defendant’s habeas petition. It also very politely tells South Carolina’s trial courts they screwed the pooch with their findings of fact regarding Solicitor Myers’ “King Kong” and “Caveman” remarks. The courts should have realized Myers’ continued racial comments were appealing to “potent symbols of racial prejudice.” They didn’t, and Judge Wilkinson informed South Carolina’s state courts just how badly they screwed up in one sentence.

With all due respect, these were unreasonable findings of fact.

 The Fourth Circuit didn’t let Myers off without a good lashing, either. While admitting prosecutors should have as much latitude as possible to present their case, and it was not their place with this ruling to “suppress the free-wheeling style that some of the finest advocates employ,” the three jurists in this case admonished Solicitor Myers for using tactics in front of an all-white jury that inflamed their fears, passions, and prejudices. Analyzing the remarks and the context in which they were presented, the Court found “the prosecutor’s argument…exceeded all permissible bounds.”

The opinion notes during the first sentencing hearing, Myers proceeded in a “race-neutral” fashion then switched gears to full blown racist during the the second, with so many inflammatory remarks “the defense’s repeated objections put Myers on notice that he had come dangerously close to crossing the constitutional line even before his closing argument began.” The Fourth Circuit very nicely told South Carolina’s state courts this was prosecutorial misconduct without expressly saying so.
This is a good ruling, and one worth highlighting because the Court of Appeals could have looked the other way. Johnny Bennett could have been one more life lost through the existing cracks in our criminal justice system. Instead, they drew a line in the sand and said prosecutorial conduct of this nature will not stand in the Fourth Circuit. Using rhetoric and tactics from the days of Jim Crow to scare a jury into a death sentence is not permissible. A prosecutor abusing his authority with morally questionable persuasive rhetoric is completely out of line, and undermines the criminal justice system to the core.

Judge Wilkinson’s last paragraph is worth repeating, as it demonstrates why a case like Johnny Bennett’s must never occur again.

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. The many instances where the system performs its duties admirably help to build the trust of the people. A proceeding like this one threatens to tear that trust apart.

3 Comments on this post.

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    30 November 2016 at 7:56 am - Reply


    I am very glad you wrote about this case.

    It is an interesting question, at least to me, whether the impact of the prosecutor’s statement on the jury was to be judged under AEDPA’s standard for factual determinations by state courts as opposed to the deference standard for questions of law. As you know, both are nearly impossible to satisfy. I always thought that fact questions garnered the most deference. Perhaps I missed it, but I don’t recall that the Fourth Circuit looked hard at that question.

    When I read the opinion, I thought the Fourth Circuit was wrong under AEDPA. When I saw who wrote the opinion, I changed my mind. How’s that for realism?

    All the best.


    • CLS
      30 November 2016 at 8:43 am - Reply


      Thank you. I didn’t want to get too deep in the weeds with the AEDPA issue, but I do see your point where the Fourth Circuit possibly glossed over discussing an important question.

      And realism is definitely something that will change your mind if you’re open to it. As far as the judge who wrote the opinion, I thought he was far nicer in pointing out where South Carolina got things wrong than I ever could have been.

        30 November 2016 at 8:50 am - Reply


        Above everything else, I am told Judge Wilkinson is a gentleman. Much like Justice Powell for whom he clerked. All the best.