Alan Wilson wrong to appeal Bennett decision

It has been a bad few weeks for Attorney General Alan Wilson and Solicitor Donnie Myers. Wilson has been criticized for his potential obstruction of a S.C. House corruption probe. Myers has been asked to resign for his repeated driving under the influence of alcohol. But another, more troubling story involving the two prosecutors has been relegated to the sidelines. Wilson appealed the court order vacating the death sentence of Johnny Bennett, a black man Myers referred to as “King Kong” at his second trial.

Johnny Bennett was convicted of first-degree murder for killing his victim with a screwdriver during a robbery. Both the offender and victim were black. Myers saw these facts as not compelling enough on their own to convince a jury to return a death sentence. So he tried to persuade his all-white jury to conceive of Bennett as less than a human being. Myers referred to “hot button racial issues” like Bennett’s sexual relationship with a white, “blond-headed lady,” and used imagery such as “a crime victim being chased by black savages and a fictionalized movie figure of a large ape who takes a white woman into captivity before engaging in a murderous rampage,” wrote U.S. District Judge Richard Gergel, who found that these comments deprived Bennett of a fair sentencing trial.

State court opinions and legal briefs are rarely scrutinized by national media, or else maybe South Carolina would bear the brunt of aggression like North Carolina is now for its bathroom law. The S.C. Supreme Court’s weak rationale upholding Bennett’s death sentence in 2006 was that “King Kong” only referred to his “immense size, strength, and the destructiveness of his previous crimes.” Wilson, in his brief in opposition to Bennett’s federal application for post-conviction relief, admitted that Myers referred to Bennett as “a form of a monkey,” trying to euphemize or censor the obvious racial purpose for the nickname. Both our highest court and Wilson failed to ask themselves honestly: Would Myers have called a muscular white defendant a “form of monkey” in the same situation?

Judge Gergel, in contrast with South Carolina’s highest court, wrote that Myers’ conduct was “improper and profoundly prejudicial” in a way that “harkened back to a dark day of our country's past.”

Like Probegate, the Bennett appeal was a matter of Wilson’s discretion. If Wilson had opted to not appeal Judge Gergel’s order, then the state would have had 180 days to resentence Bennett. Instead of letting the state court quickly decide how to dispose of the case, Wilson chose to make it an expensive controversy at the federal appeals court in Richmond.

Yet the likely result of both options is Bennett’s resentencing to life in prison without parole. It is difficult to imagine the Fourth Circuit Court — which hears appeals from Maryland, Virginia, West Virginia, North Carolina and South Carolina — allowing Myers’ absurdly unconstitutional statements to the jury to stand as binding precedent.

Not only was Wilson’s decision impractical, but it was also unconscionable. The appeal wastes our tax dollars and the state government’s time. Sadly, Wilson’s decision also condones racism from a seat of political power. That alone is worthy of admonishment.

Rory Fleming is a consultant on criminal justice policy issues and currently lives in Charleston, South Carolina. He earned his law degree from UNC-Chapel Hill