Proponents such as South Carolina Gov. Henry McMaster pitch the death penalty as a way for victims' families to find closure.
Yet for the men condemned to die on death row in the state, the grounds for execution are tenuous enough that the odds of reversing a death sentence are better than the odds of winning a coin flip.
Sixty percent of death sentences in the state have been reversed since 1972, according to data from Justice 360, a statewide nonprofit working to reform policies and practices in capital punishment cases.
Capital prosecutions have been plagued with prosecutorial misconduct, improper evidence, the exclusion of admissible evidence and other blunders, according to research by The Greenville News.
In one egregious example, a solicitor said failure to impose a death sentence in a case would result in "open season on babies in Lexington County," a comment that, when coupled with other theatrics, the state Supreme Court found "overly zealous."
Research shows that errors in state capital cases from the past five decades included issues with prosecutorial misconduct, improper evidence, or exclusions of admissible evidence, among other blunders.
The death penalty's legacy is further clouded because, historically, capital defendants have not had equal footing to stand on when it comes to legal representation.
"The death penalty is supposed to be reserved for the worst of the worst," said Robert Dunham, executive director of the Death Penalty Information Center. "What the evidence overwhelmingly shows is that the people being executed are actually the most vulnerable and had the worst of the worst legal process."
While the state pursues litigation to establish the firing squad as a method of execution, none of the 35 men on death row are eligible to be executed due to the legal status of their cases.
Many are still in appeals, others are in various stages of post-conviction proceedings and some death sentences have been vacated, unlikely to be visited again.
Although victims' advocates say the delays are an injustice to victims, legal experts say the legal review is necessary for due process.
A Greenville News analysis of the varying legal status of death row cases found:
13 men have cases in post-conviction proceedings
4 men have had their death sentences vacated but remain on death row
6 men have their cases in the federal habeas stage, or in review by a federal court
3 men are either incompetent to be executed or incompetent for trial
4 men are represented in the current civil litigation challenging the state's new death penalty statute
The remaining 5 men on death row are in other various stages of legal challenges that wouldn't allow them to be executed
South Carolina law requires the state Supreme Court to review every death sentence imposed by a trial court.
A death penalty case can make its way through a lengthy appeals process, starting with direct appeals in state court, where attorneys can make arguments about issues that happened directly in the trial, such as an admission of improper evidence or expert testimony.
A case can then be brought to the state for post-conviction relief, the first stage where claims of ineffective assistance of counsel can be heard. If state post-conviction fails, an appeal can be reviewed for a federal habeas claim, first by the state federal district court, a federal circuit court, which is the Fourth Circuit Court of Appeals for SC, and finally the U.S. Supreme Court, if the high court chooses to hear it.
The process often takes years.
"It's agonizing," said Laura Hudson, executive director of South Carolina Victim Assistance Network. "It's not a pleasant experience for victims to have to wait so long for justice to be done."
However, legal experts note the high reversal rate underscores its importance.
"More than 60% of cases that have gone into the South Carolina death penalty process have eventually been reversed, so the appellate courts are saying that the trial courts are getting this wrong quite a lot of the time," said Madalyn Wasilczuk, assistant professor at the University of South Carolina School of Law. "It's one really important reason why we need to have this review."
'Win at all costs' approach to prosecutorial misconduct
In June, the DPIC published an analysis of overturned death sentences nationwide since 1972 that identified more than 550 incidents of prosecutorial misconduct. Common types of misconduct included improper argument, improper questioning, false evidence and jury discrimination, among others.
In SC, research published in 2016 from John Blume, former director of the South Carolina Death Penalty Resource Center and professor at Cornell University, and Justice 360's executive director, Lindsey Vann, found prosecutorial misconduct as a reason for reversals in 29 of 81 death sentences which were granted new trials or resentencing hearings following direct appeal. The broader review of cases was also among those sentenced after 1972.
In 2003, Clinton Robert Northcutt, at the time 23, was sentenced to death for the 2001 murder of his 4-month-old daughter. Reporting at the time of trial noted that Northcutt asked the jury for the death sentence before deliberations.
However, the state Supreme Court overturned the sentence, finding that then-Solicitor Donnie Myers' closing argument was "overly zealous." At the trial, Myers staged a funeral procession and placed a black shroud over a crib. He also told the jurors that without a death sentence, it would be "open season on babies in Lexington County."
Myers is a notorious prosecutor in the state and across the country, who drew nicknames like "Doctor Death" and "Death Penalty Donnie" in various media outlets. The former 11th Circuit solicitor was in office from 1976 until he retired in 2016.
Over that time, he won 39 death penalty cases and sent 28 defendants to death row, as some people were tried twice because of new trials or resentencing hearings. Misconduct was found in at least 18 of those cases, according to a 2016 report from the Fair Punishment Project.
Only six of those defendants have been executed. A dozen eventually received life sentences and a couple men died on the row, according to reporting by The State. Only three defendants sentenced by Myers remain on death row.
"We'll see across the country, prosecutors who have later been found to have committed gross misconduct winning Prosecutor of the Year awards," Dunham said. "Prosecutors historically have been rewarded for putting a person on death row. Prosecutors have not been rewarded for declining to seek the death penalty because it would have been overcharging."
Northcutt was sentenced to death again in 2009, though this time he didn't ask for it. Yet, when defense attorneys asked the presiding judge, James Williams, to review the case, he never did, which halted the appeals process. The case was turned over to the Attorney General and Northcutt remains on death row in post-trial limbo more than 20 years after the crime.
More recently, former 13th Circuit solicitor Bob Ariail, who represented Greenville and Pickens County, was accused of misconduct for intimidating a witness during the trial of Jerry Buck Inman, a man convicted of the rape and murder of a 20-year-old Clemson student in 2006.
In September 2011, the Associated Press reported that then-state Supreme Court Chief Justice Jean Toal said Inman's appeal could be used as a warning for prosecutors who "ignore fairness" and take a "win at all costs" approach.
"We want to know what, short of reversing this case, can we do to send the message that this conduct is out of bounds," Toal said.
While the state Supreme Court did find in December 2011 that Ariail committed prosecutorial misconduct, it did not find Inman's sentence in violation of due process and it was upheld.
Ultimately Inman's sentence was overturned in 2020, eight years after he filed for post-conviction relief. The state Supreme Court ruled Inman's constitutional rights were violated when he was sentenced by a judge and not a jury. The state is now in the process of appealing that ruling. If it fail, Inman could have another sentencing trial.
'Essentially unintelligible in his testimony': Incompetency on death row
According to DPIC's 2021 year-end report, 10 of the 11 people executed across the country last year had evidence of a significant impairment, such as extensive childhood trauma, mental illness or intellectual disabilities. DPIC also found that at least four people were removed from death row because of an intellectual disability.
Dunham explained people executed often have serious mental illnesses, intellectual disabilities, brain damage or chronic childhood trauma that impacted their development.
"Then you also add into that those who were near juveniles, adolescent brains still not fully developed," Dunham said.
In 2002, the U.S. Supreme Court ruled that it's unconstitutional to execute someone who is mentally incompetent.
Currently, three men on death row in South Carolina are unable to move forward with their appeals due to being declared mentally incompetent by the court. Another has had his death sentence thrown out for the same reason.
In 1996, Donnie Council, then 26, was convicted and sentenced to death for the rape and murder of a 72-year-old woman that occurred in 1992. In 2001, a hearing was held by a circuit court to determine whether Council was competent to be executed after he requested to withdraw his post-conviction application and be executed.
According to an article from the Associated Press, Council took the stand and "did little than mutter incoherently to questions" posed by the state.
According to a state Supreme Court decision, the Department of Mental Health found he was not competent to be executed or waive his post-conviction hearing. The court wrote that Council was "essentially unintelligible in his testimony" due to his incompetence when he was called as a witness.
Eventually, in 2008, the state Supreme Court upheld the reversal of Council's death sentence, finding the trial counsel ineffective in presenting mitigating evidence in court by having only Council's mother testify.
"When you sentence a person, you're sentencing the whole person, not just the act that they've been convicted of," said Elizabeth Vartkessian, executive director of Advancing Real Change, Inc. and mitigation specialist of roughly two decades starting in Houston, Texas. "We don't get to have the death penalty without these considerations, and those considerations include understanding the full history of a person."
Investigating and uncovering the history, background and character of a capital defendant is part of the mitigation process.
Mitigation is a critical part of the defense process for capital defendants, according to legal experts. Dunham likens a mitigation investigator to a sort of forensic social worker.
"You can't have an ex-cop who is now doing defense crime investigations doing the job because the type of information you're investigating is something completely different," Dunham said.
Dunham explained mitigation specialists look into sexual abuse in someone's household and provide multi-generational family investigations that are often too expensive just for lawyers.
"If you don't have the right skills, you'll never get the family to tell you what those really horrendous things that happened to their loved one," Dunham said.
Council remains on death row over two decades after his initial conviction.
The standard for competency in SC wasn't set until 1993 in the post-conviction phase for the case of Fred Singleton, a death row inmate who was convicted of the murder of a 74-year-old woman in 1983. The state Supreme Court set a two-prong standard for determining mental competency: the defendant must be able to understand the nature of their punishment and be able to communicate with the defense counsel.
In the same ruling, the court also decided the state can't medicate someone solely in order to execute them.
If Singleton, now 77, is ever deemed competent, he is eligible for execution only after an intellectual disability hearing. He has been on death row for almost 40 years.
"That's one of the things that that makes people question the trustworthiness of states to carry out capital punishment," Dunham said. "The unwillingness of prosecutors in cases that are that obvious to simply drop the death penalty and have the person serve life without parole or be moved to a mental facility."
The right to an impartial jury
South Carolina's trial structure for capital punishment cases works in two steps. A selected jury first decides whether the defendant is guilty of the crime. Then the same jury, at least 24 hours later, participates in another hearing to decide on sentencing. The technical term for this is bifurcation.
Blume explained the initial logic of bifurcation was to separate evidence that attorneys may want to present on the question of sentencing and not necessarily for the question of guilt or innocence.
"You might want to put in evidence that this person has schizophrenia or some kind of mental illness or is low-functioning to ask the jury not to kill them, but you're worried the jury might think 'that person has schizophrenia, they're mentally ill, they're more dangerous, they probably committed this crime,'" Blume said.
Although this process was introduced during the modern era of the death penalty for additional discretion in capital cases, errors in jury selections and deliberations often occur that result in case reversals.
According to Blume and Vann's 2016 research, 45 of the 81 cases in SC since 1972 that were granted a new trial or sentencing hearing on initial appeals were a result of prejudicial error in the trial court's instructions to the jury.
"These are very complicated ideas and people are not allowing jurors to have a full knowledge," Vartkessian said. "There is something about the structure that is taking away from the people who are supposed to have the most agency. I contend that part of it starts with the fact that nobody can understand what these things are, like what on earth is a mitigating factor, right? What is an aggravating factor? What is a moral decision?"
Bobby Wayne Stone, a man on death row who was first convicted in 1997 for the murder a police officer, had to face another trial in 2002 because the judge did not properly inform the jury that a life sentence meant Stone would be ineligible for parole during sentencing.
"For years in South Carolina, as one of the states that offered an option of life without possibility of parole as an alternative to the death penalty, often didn't tell the jury that life meant life without parole so prosecutors would argue that the defendant posed a future danger to society," Dunham said.
Stone ultimately received another death sentence in 2005, but his case remains in the post-conviction process.
"The agreement for the modern death penalty is that death is never required. I can't tell you how many jurors I've interviewed as a researcher who have deliberated and sentenced people to death and they didn't realize that they didn't have to," Vartkessian said.
In 2003, James Bryant III received a retrial after being convicted of the murder of a police officer during a traffic stop in 2000 in Horry County. After reviewing the case, the state Supreme Court found that Horry County police improperly questioned the family and friends of some jurors in a case where an officer was a victim.
According to an article in The Sun-News regarding the case, court documents showed that the police asked jurors' family, co-workers and neighbors about their character and "advised them not to mention the interviews before the end of the trial."
Bryant again received the death penalty during the retrial. However, a U.S. District Court vacated his death sentence but upheld his conviction in 2019 over concerns that one of the jurors had a hearing disability. This year the U.S. Supreme Court decided it would not hear the state's appeal regarding the second trial and the case could return to Horry County for a third sentencing trial.
'Counsel makes a huge difference,' history of lackluster legal representation
Wasilczuk and other legal experts explained that capital punishment cases are procedurally complicated and require a certain level of expertise and resources from defense attorneys.
The American Bar Association guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, written in 2003, require a multi-person defense team with at least two qualified attorneys. The team must also include an investigator, mitigation specialist and at least one person qualified to screen for mental or psychological disorders.
However, defense counsel in capital cases over the past several decades have lacked the resources and expertise to adequately represent defendants facing the death penalty. A big reason is because of the price tag that comes with taking capital cases.
"Good capital case representation requires a defense team, and that kind of lawyering, especially because you want these people to be experienced counsel who know what they're doing, doesn't come cheap. Capital case funding is always a big issue," Wasilczuk said.
Because representation is costly and those facing capital cases are often indigent, the bulk of the case work falls on public defenders.
"Overwhelmingly, it's court-appointed attorneys or public defender offices that end up representing people charged with capital crimes," Blume said. "People with money normally don't get charged for capital offenses, and if they do, they very rarely get sentenced to death."
Blume said as states like South Carolina have developed statewide capital defense teams, the number of death sentences has declined.
"A problem with sort of a more disparate public defender system is not necessarily that the public defenders aren't good, but they don't do enough capital cases to really develop expertise in it," Blume said.
The Capital Trial Division of the South Carolina Commission of Indigent Defense became part of SCCID in 2008 with attorneys exclusively assisting death penalty clients. The South Carolina Death Penalty Resource Center, which after several name changes is now known as Justice 360, was established in 1989 with funding from the federal government. The organization has assisted with legal representation in appeals and post-conviction proceedings for clients in death row cases.
Since 2010, only three men in S.C. have been sentenced to death.
"Counsel makes a huge difference," Dunham said. "What we saw in South Carolina in the 70s, 80s, 90s and the first half of the 2000s, you had court-appointed counsel, who are appointed at the county level with their budgets controlled by the court, not doing adequate jobs. As a result, you have people who were sentenced to death who probably wouldn't go to trial today."
And as it stands, the majority of the men sentenced from the 1980s to early 2000s who remain on death row are in various stages of appeals or sit with vacated death sentences due to prosecutorial misconduct, mistakes by the state or inadequate counsel.
Excessive delays and errors hurt defendants and victims
Both victim's advocates and legal experts agree the long process for death penalty cases hurts victims.
"What is undeniable is that the death penalty process is bad for victim's families," said Dunham. "Each time they have to show up in court, it is a reminder of the worst day in their life. They get traumatized by having to deal with that over and over even when the case is the issues in court or procedural issues. They get falsely promised that justice equals execution."
Hudson, who's worked with SCVAN for 40 years, said the extensive delays are in favor of the defendants in capital cases.
"A death sentence overturned on a technicality but not over the fact that they're guilty is not well accepted by the crime victim community," Hudson said. "Here you are as a crime victim, you've been to court, everybody has agreed this is a guilty person and the jury has spoken. I consider that a contract with the crime victim and that contract needs to be carried out as swiftly as possible."
However, Dunham, who previously worked on the board of directors for the Philadelphia crime-victim assistance program, said that's not always the case.
"There was an assumption that if you were the victim's family member you wanted revenge, you wanted the death penalty and that is not a justifiable assumption," Dunham said. "People have different responses."
Just last week in Alabama, Joe Nathan James Jr. was executed for the murder of his girlfriend, Faith Hall, in 1994, despite the Hall family's wishes and pleas to Governor Kay Ivey to halt the execution. The family said they'd rather James serve a life sentence than face death.
For a study in the Marquette Law Review in 2012, researchers interviewed families of homicide victims in Texas, a death penalty state, and Minnesota, a state with an ultimate punishment of life without parole. They found victims in Minnesota fared better in behavioral and psychological health. The researchers also found the survivor's benefited from perceived control in an appeals process that was more predictable and was completed more quickly.
In a state where over half of death sentences end up reversed, the appellate review in capital cases is necessary for due process.
"I think that that's kind of where things can fall apart for people. The only way you get to have a death penalty is if the government or the state follows these rules," Vartkessian said, referring to the legal parameters set in the Supreme Court's decision in to reinstate the death penalty over four decades ago. "If they don't follow those rules, cases get reversed. And that's not the fault of the defendant. It's often the fault of the state or the prosecutor."
Kathryn Casteel is an investigative reporter with The Greenville News and can be reached at KCasteel@gannett.com or on Twitter @kathryncasteel.
This article originally appeared on Greenville News: SC death penalty cases are in court for years. Many are reversed.