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Appeals court: ‘King Kong’ comment prejudiced all-white jury

November 21, 2016

COLUMBIA, S.C. (AP) — A black South Carolina man should be released from death row because a prosecutor’s “racially coded references” made a fair sentencing before an all-white jury impossible, according to a ruling issued Monday by a panel of appellate judges.

A three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that U.S. District Judge Richard Gergel was right to throw out the death sentence against Johnny O. Bennett.

Bennett, 46, has been on South Carolina’s death row for more than two decades for the killing of 24-year-old Benton Darrell Smith, stabbed more than 60 times with a screwdriver in November 1990.

Bennett, who is black, was first convicted and sentenced to death in 1997 by a mixed-race jury. The state Supreme Court upheld his conviction but overturned the sentence because a potential juror had said he would feel obligated to go along with whatever the majority of jurors had decided.

In a second sentencing proceeding in 2000, this one before an all-white jury, Solicitor Donnie Myers in his closing argument compared Bennett — who at that time was 6 feet 6 inches tall and weighed 300 pounds — to “King Kong on a bad day.” He also, according to the appellate court, referred to Bennett as a “caveman,” ″mountain man,” ″monster” and “big old tiger.”

Bennett again appealed that sentence, but the state’s highest court ruled that Myers’ comments “did not improperly inject racial issues into the trial” and that the “King Kong” comment wasn’t racially motivated but rather referenced Bennett’s “size and strength.”

Pointing out that “vivid expression and exaggeration for effect are many an attorney’s stock-in-trade,” the court went on to say that Myers’ remarks “were unmistakably calculated to inflame racial fears and apprehensions on the part of the jury.”

Myers’ comments, the appellate judges wrote, “mined a vein of historical prejudice against African-Americans.” The “King Kong” comment in particular, they noted, “stoked race-based fears by conjuring the image of a gargantuan, black ape who goes on a killing spree and proceeds to swing the frail, white, blonde Fay Wray at the top of the Empire State Building.”

Myers didn’t return a message seeking comment. A spokeswoman for state Attorney General Alan Wilson, whose office argued the case on behalf of the state, said prosecutors were still reviewing the opinion and mulling if they’d request a rehearing.

John Blume, who argued on behalf of Bennett before the appellate panel, told The Associated Press it was “antithetical to the criminal justice system for a prosecutor to pander to an all-white jury’s racial fears and implicit biases.”

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Kinnard can be reached at http://twitter.com/MegKinnardAP. Read more of her work at http://bigstory.ap.org/content/meg-kinnard

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