PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-3
JOHNNY BENNETT,
Petitioner - Appellee,
v.
BRYAN P. STIRLING, Commissioner, South Carolina Department
of Corrections; JOSEPH MCFADDEN, Warden, Lieber Correctional
Institution,
Respondents - Appellants.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Richard M. Gergel, District
Judge. (2:13-cv-03191-RMG)
Argued: October 25, 2016 Decided: November 21, 2016
Before WILKINSON, KING, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge King and Judge Harris joined.
ARGUED: Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL OF
SOUTH CAROLINA, Columbia, South Carolina, for Appellants. John
Henry Blume, III, CORNELL LAW SCHOOL, Ithaca, New York, for
Appellee. ON BRIEF: Alan Wilson, Attorney General, John W.
McIntosh, Chief Deputy Attorney General, Donald J. Zelenka,
Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for
Appellants. Lindsey S. Vann, JUSTICE 360, Columbia, South
Carolina, for Appellee.
WILKINSON, Circuit Judge:
Petitioner Johnny Bennett challenges the imposition of a
capital sentence in the South Carolina courts. While recognizing
full well the deferential standard of review under AEDPA, we
nonetheless agree with the district court that the sentencing
was suffused with racially coded references to a degree that
made a fair proceeding impossible. We therefore affirm the
judgment of the district court granting habeas relief.
I.
Bennett, a black man, was convicted in 1995 for murder,
kidnapping, armed robbery, and larceny in a South Carolina trial
court. In a separate penalty proceeding, the state, with
Solicitor Donald Myers at the helm, emphasized the size
difference between Bennett (6’6” and 300 pounds) and the victim
Benton Smith, a black man with a slight build (5’7” and 135
pounds). A mixed-race jury sentenced Bennett to death for the
murder. On appeal, the South Carolina Supreme Court upheld
Bennett’s convictions but reversed his death sentence, ordering
the trial court to conduct a new sentencing. State v. Bennett,
493 S.E.2d 845 (S.C. 1997) (Bennett I).
The second sentencing proceeding was held in 2000. As in
the first trial, Myers led the prosecution and the jury
sentenced Bennett to death. But this time, the jury was composed
of white jurors only. And before this all-white jury, Myers
2
chose to use racially charged language from the first sentence
of his opening argument to his final soliloquy, casting aside
the race-neutral presentation he had employed with the mixed-
race jury.
The most egregious appeals to racial prejudice came in his
closing argument, in which he referred to Bennett using a slew
of derogatory terms. Myers admonished the jury, “Meeting
[Bennett] again will be like meeting King Kong on a bad day.”
J.A. 1443. He also labeled Bennett a “caveman,” a “mountain
man,” a “monster,” a “big old tiger,” and “[t]he beast of
burden.” J.A. 1420-44. In addition, Myers intentionally elicited
irrelevant, inflammatory testimony from one of the state’s
witnesses, who recounted a dream in which he was chased by
murderous, black Indians. While cross-examining a defense
witness, Myers alluded to Bennett’s sexual partner as “the
blonde-headed lady,” J.A. 1343-44, alerting the jury to the
interracial nature of the relationship.
Bennett moved for a new trial, but the trial court denied
his request. The court found that the “King Kong” comment “was
not an appeal to racial prejudice” and was an “invited response”
to the defense’s portrayal of Bennett as a peaceful and helpful
prison citizen. J.A. 1628-29. As a result, the court concluded,
the reference did not result in a denial of due process. The
3
court analyzed the “caveman” comment separately and arrived at
the same conclusions.
The South Carolina Supreme Court affirmed the death
sentence, holding that the comments “did not improperly inject
racial issues into the trial.” State v. Bennett, 632 S.E.2d 281,
289 (S.C. 2006) (Bennett II). The court observed that the “King
Kong” label “could have racial connotations” but found that
Myers’s use of the term “was not an appeal to the passions or
prejudices of the jury.” Id. at 288. Instead, the reference
conveyed Bennett’s “size and strength as they related to his
past crimes” and was an invited response. Id. at 288-89. The
court found the “caveman” comment “merely descriptive” of
testimony that Bennett had twice pulled someone else by the
hair. Id. at 289. The United States Supreme Court denied
certiorari. Bennett v. South Carolina, 549 U.S. 1061 (2006)
(mem.).
In 2008, Bennett sought post-conviction relief (PCR) in
state court, arguing that the seating of a racially biased juror
violated his right to an impartial jury under the Sixth and
Fourteenth Amendments. While preparing for the PCR proceeding,
Bennett’s counsel interviewed a former juror and asked why the
juror thought Bennett committed the murder. The juror responded,
“Because he was just a dumb nigger.” J.A. 1846. After hearing
testimony from the juror, the PCR court denied relief on the
4
grounds that the juror was not racially biased at the time of
the actual sentencing. The South Carolina Supreme Court denied
certiorari.
Bennett filed the instant petition for federal habeas
relief under 28 U.S.C. § 2254 in 2014. He raised seven grounds
for relief, including prosecutorial misconduct and juror bias.
After a hearing, the district court granted relief independently
on both grounds, vacated Bennett’s death sentence, and
“return[ed] the matter to the Lexington County Court of General
Sessions for resentencing within 180 days of [the] order.”
Bennett v. Stirling, 170 F. Supp. 3d 851, 855 (D.S.C. 2016).
According to the district court, the state courts unreasonably
determined that the “King Kong” comment, “black Indians”
testimony, and “blonde-headed lady” remark were not intentional
appeals to racial prejudice. Id. at 861-67. The district court
also found unreasonable the PCR court’s determination that the
juror was not racially biased at the time of the sentencing. Id.
at 867-72. The respondents now appeal.
II.
We review de novo the district court’s decision to grant
habeas relief under 28 U.S.C. § 2254. Winston v. Pearson, 683
F.3d 489, 503-04 (4th Cir. 2012).
5
A.
Under Section 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (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. See 28 U.S.C. § 2254(d); Pub. L. No.
104-132, § 104, 110 Stat. 1214, 1218-19 (codified at 28 U.S.C.
§ 2254). More precisely, Section 2254(d)(1) allows relief 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.” § 2254(d)(1). Circuit
precedent “cannot form the basis for habeas relief.” Parker v.
Matthews, 132 S. Ct. 2148, 2155 (2012). In addition, “[t]he more
general the [federal] rule, the more leeway [state] courts have
in reaching outcomes in case-by-case determinations.” Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004). Section 2254(d)(2), in
turn, permits relief where the state court’s decision “was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” § 2254(d)(2).
A state court’s factual determinations are presumed correct, and
the petitioner must rebut this presumption by clear and
convincing evidence. § 2254(e)(1).
Federal courts thus owe state tribunals significant
deference. In the words of the Supreme Court, “A state court’s
6
determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough, 541 U.S.
at 664).
Section 2254 thus imposes a high yet not insurmountable
hurdle to relief. The statute “reflects the view that habeas
corpus is a ‘guard against extreme malfunctions in the state
criminal justice systems,’ not a substitute for ordinary error
correction.” Id. at 102-03 (quoting Jackson v. Virginia, 443
U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in the
judgment)). Federal habeas review may not be used “to second-
guess the reasonable decisions of state courts.” Renico v. Lett,
559 U.S. 766, 779 (2010). But AEDPA deference is not unlimited.
It “does not by definition preclude relief” and “does not imply
abandonment or abdication of judicial review.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
B.
Bennett alleges that the prosecutor appealed to racial
prejudice in his capital sentencing proceeding. Accordingly, the
“clearly established Federal law” that governs our analysis is
the Supreme Court’s decision in Darden v. Wainwright, 477 U.S.
168 (1986). Darden held that a prosecutor’s improper comments
offend the Constitution if they “so infected the trial with
7
unfairness as to make the resulting conviction a denial of due
process.” Id. at 181 (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)); see Parker, 132 S. Ct. at 2153. Under
this standard, it “is not enough that the prosecutors’ remarks
were undesirable or even universally condemned.” Darden, 477
U.S. at 180-81. Courts must conduct a fact-specific inquiry and
examine the challenged comments in the context of the whole
record. United States v. Young, 470 U.S. 1, 11-12 (1985).
Prosecutors, moreover, retain substantial latitude to
present their case as they see fit. That latitude is not to be
casually abridged. The Supreme Court has cautioned that “[t]he
line separating acceptable from improper advocacy is not easily
drawn.” Id. at 7. Accordingly, courts “should not lightly infer
that a prosecutor intends an ambiguous remark to have its most
damaging meaning” or that a jury “will draw that meaning from
the plethora of less damaging interpretations.” Donnelly, 416
U.S. at 647.
But while a prosecutor “may strike hard blows, he is not at
liberty to strike foul ones.” Berger v. United States, 295 U.S.
78, 88 (1935). It is beyond dispute that “[t]he Constitution
prohibits racially biased prosecutorial arguments.” McCleskey v.
Kemp, 481 U.S. 279, 309 n.30 (1987). Racial prejudice, “odious
in all aspects, is especially pernicious in the administration
of justice.” Rose v. Mitchell, 443 U.S. 545, 555 (1979). For
8
this reason, the Supreme Court has “engaged in ‘unceasing
efforts’ to eradicate racial prejudice from our criminal justice
system.” McCleskey, 481 U.S. at 309 (quoting Batson v. Kentucky,
476 U.S. 79, 85 (1986)).
Finally, we remain sensitive to the Court’s judgment that
“the qualitative difference of death from all other punishments
requires a correspondingly greater degree of scrutiny of the
capital sentencing determination.” California v. Ramos, 463 U.S.
992, 998-99 (1983). Courts cannot avert their eyes from the risk
that “racial prejudice infect[ed] a capital sentencing
proceeding . . . in light of the complete finality of the death
sentence.” Turner v. Murray, 476 U.S. 28, 35 (1986) (plurality
opinion).
For the reasons that follow, the prosecutor’s argument here
exceeded all permissible bounds.
III.
The state courts unreasonably determined that the
prosecutor’s references to Bennett during closing argument were
not appeals to racial prejudice. Drawing on this flawed factual
finding, the courts unreasonably concluded that Bennett’s right
to due process was not violated.
A.
We understand that closing arguments can be florid. Vivid
expression and exaggeration for effect are many an attorney’s
9
stock-in-trade. But the remarks challenged here were
unmistakably calculated to inflame racial fears and
apprehensions on the part of the jury. Just before the jury left
the courtroom to decide whether Bennett would receive a capital
sentence, Myers delivered a final summation in which he
alternated between characterizing Bennett as a primitive,
subhuman species and a wild, vicious animal. Myers labeled
Bennett an “old caveman,” a “mountain man” (twice), a “monster,”
and a “big old tiger.” J.A. 1420-34. Referring to the murder and
then to Bennett, the prosecutor remarked, “Painful, vile, cruel,
inhuman, everywhere. Everywhere. Everywhere. The beast of
burden.” J.A. 1444. The coup de grâce in this sad story arrived
when Myers warned the jury what would result if it did not
impose the death penalty: “You give him life, the real Johnny
will come back. You give him life and he’ll come back out.
Meeting him again will be like meeting King Kong on a bad day.
Vile Johnny. Mean Johnny. Manipulating Johnny. Murderous
Johnny.” J.A. 1443.
The state courts, most notably the South Carolina Supreme
Court, found that the “King Kong” comment was “not an appeal to
the passions or prejudices of the jury.” Bennett II, 632 S.E.2d
at 288. The state supreme court explained:
[T]he trial court properly determined that [Bennett’s]
size and strength were probative of the aggravating
circumstance of physical torture, which the [trial]
10
court charged to the jury. In this regard, the
Solicitor’s use of the term “King Kong” was not
suggestive of a giant black gorilla who abducts a
white woman, but rather, descriptive of [Bennett’s]
size and strength as they related to his past crimes.
Id. The court also found that the “caveman” comment was “merely
descriptive of two of [Bennett’s] past violent incidents”
because the prosecutor made the remark while mentioning how
Bennett pulled two individuals by their hair. Id. at 289.
With all respect, these were unreasonable findings of fact.
The prosecutor’s comments were poorly disguised appeals to
racial prejudice. It is impossible to divorce the prosecutor’s
“King Kong” remark, “caveman” label, and other descriptions of a
black capital defendant from their odious historical context.
And in context, 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. We are mindful that
courts “should not lightly infer that a prosecutor intends an
ambiguous remark to have its most damaging meaning.” Donnelly,
416 U.S. at 647. But here, “the prosecutor’s remarks were quite
focused, unambiguous, and strong.” Caldwell v. Mississippi, 472
U.S. 320, 340 (1985). The comments plugged into potent symbols
of racial prejudice, encouraging the jury to fear Bennett or
regard him as less human on account of his race.
11
The “King Kong” comment especially drew on longtime staples
of racial denigration. That comment was “not just humiliating,
but degrading and humiliating in the extreme.” Boyer-Liberto v.
Fontainebleau Corp., 786 F.3d 264, 285 (4th Cir. 2015) (en banc)
(internal quotation marks omitted). Likening Bennett to King
Kong in particular 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. Petitioner is right to note that
the film is regarded by many critics as “a racist cautionary
tale about interracial romance.” Br. of Appellee at 40 (quoting
Phillip Goff et al., Not Yet Human: Implicit Knowledge,
Historical Dehumanization, and Contemporary Consequences, 94 J.
Personality & Soc. Psychol. 292, 293 (2008)).
In addition to the content of the remarks, the particular
circumstances of this case do not leave any doubt that the
challenged comments were appeals to racial prejudice, not
innocent descriptions of Bennett’s size and strength. The
prosecutor easily could have highlighted Bennett’s physical
attributes in a race-neutral manner. There was no impediment to
the prosecutor’s ability to note “repeated examples of
[Bennett’s] proclivity to viciously and savagely attack others
defenseless to someone of his size.” Reply Br. of Appellants at
2. Indeed, the prosecutor did so in a race-neutral manner before
12
the earlier mixed-race jury. In addition, the state used
cardboard figures without objection in the second sentencing to
convey the size disparity between Bennett and his victim. See
Br. of Appellants at 38. And of course, the jury could see
Bennett and assess his size as he sat in the courtroom. See Br.
of Appellee at 50. The prosecutor’s references then were not
only gratuitous but were, as the district court explained, “a
not so subtle dog whistle on race that this Court cannot and
will not ignore.” Bennett, 170 F. Supp. 3d at 866.
B.
The South Carolina Supreme Court’s factual determinations
with respect to Myers’s close led to its erroneous legal
conclusion that Bennett’s due process rights were not violated.
It is important to consider the procedural distortion wrought by
the challenged remarks. The capital sentencing determination
“requires the individual jurors to focus their collective
judgment on the unique characteristics of a particular criminal
defendant.” McCleskey, 481 U.S. at 311. Impairing the jury’s
ability “to confront and examine the individuality of the
defendant would be particularly devastating to any argument for
consideration of . . . ‘[those] compassionate or mitigating
factors stemming from the diverse frailties of humankind.’”
Caldwell, 472 U.S. at 330 (quoting Woodson v. North Carolina,
428 U.S. 280, 304 (1976) (plurality opinion)). The prosecutor’s
13
closing comments here risked reducing Bennett to his race and
damaged the jury’s ability to consider objectively, and
individually, whether mercy was warranted.
We must also evaluate the challenged remarks in the context
of the record as a whole. See Young, 470 U.S. at 11-12. The
prosecutor’s opening statement began, “Ladies and gentlemen, you
all have seen the defendant, Johnny Bennett; huge, giant man,
six-six, six-seven, brutal monster size.” J.A. 273. In the next
breath, Myers branded Bennett a “big old brute.” Id. Drawing to
a close, Myers called Bennett a “big old bear of a fellow,” J.A.
277, with a “[b]ig old bear of a fist,” J.A. 280.
The animal imagery was shortly reinforced by racial imagery
from one of the state’s witnesses. The witness, Shannon Gilbert,
was white and had been assaulted by Bennett several years
earlier. The prosecutor asked Gilbert, “Do you have any
consciousness about being in a hospital; do you know of any
dreams or anything?” J.A. 393. Gilbert began to testify that he
remembered only one dream from his stay at the hospital, but the
defense objected on relevance grounds. Myers, who plainly knew
what Gilbert would say, responded that Gilbert would “bring out
the relevance.” Id. Gilbert proceeded to describe his dream:
“Indians were chasing me trying to kill me, and the thing that I
thought was they were black. . . . [T]here might have been a
link. You know, that I was remembering something about trying to
14
get away from someone.” J.A. 394. At the district court hearing,
the respondents conceded that Myers elicited the testimony and
that they could not articulate a purpose for the testimony other
than invoking racial fears.
Myers also made certain that the jury knew that Bennett had
a sexual relationship with a white prison guard. Byron Collins,
a defense witness, testified that Bennett helped him recover
from depression while in prison. Myers’s initial cross-
examination consisted of a series of inquiries about whether
Bennett had encouraged Collins to be disruptive or to break
prison rules; Collins answered each question in the negative.
The defense briefly built on this line of questioning on
redirect. On recross, Myers swerved in a different direction and
asked, “There was one guard that loved Johnny Bennett and that
was Judie Hardee, you remember her?” J.A. 1343. Collins
responded, “The real big lady?” Id. Myers answered, “Judie
Hardee, you remember her, the blonde-headed lady?” J.A. 1343-44.
Collins said he didn’t remember, and the prosecution rested.
During his closing argument, Myers reminded the jury that
Bennett was “having sex with the female guard” no fewer than
seven times. J.A. 1441. While the state argues that “it is
extremely common today for people to color their hair,” Br. of
Appellants at 46, the district court rightly noted that “almost
all women with blonde hair are white,” Bennett, 170 F. Supp. 3d
15
at 864. As the district court found, “The Solicitor’s carefully
choreographed questioning alerted [Bennett’s] all-white jury
that his prison guard lover was a white woman.” Id. at 863.
There was therefore nothing isolated about the prosecutor’s
racially-charged references to Bennett during closing argument.
In Donnelly, the Supreme Court found that a habeas petitioner’s
due process rights were not violated in part because the
prosecutor’s remark “was but one moment in an extended trial.”
Donnelly, 416 U.S. at 645. Here, in contrast, we do not have “a
case where the misconduct of the prosecuting attorney was slight
or confined to a single instance, but one where such misconduct
was pronounced and persistent, with a probable cumulative effect
upon the jury which cannot be disregarded as inconsequential.”
Berger, 295 U.S. at 89.
Whether the “black Indians” testimony or the “blonde-headed
lady” comment would independently merit reversal is not a
question we need answer. Suffice it to say that those comments
do nothing to dispel our misgivings about what transpired here.
Race was a recurrent theme throughout the capital sentencing
proceeding, a theme designed to implant both racial fears and
prejudices in the mind of the jury by playing upon ancient
staples of racial disparagement and discrimination.
Our ruling does nothing to drain the adversary process of
its spontaneity or to suppress the free-wheeling style that some
16
of the finest advocates employ. The proceeding here hardly
needed to be run this way. We note once again that in front of
the mixed-race jury at the first sentencing, Myers managed to
respect the Constitution’s prohibition on appeals to racial
prejudice. His closing argument was race-neutral, and he did not
elicit testimony on the “black Indians” dream.
When arguing before an all-white jury, however, the
prosecutor suddenly and tellingly took a different, race-
oriented approach. And though it should not have been necessary
by the year 2000, 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.
Immediately after Myers referred to Bennett’s sexual partner as
“the blonde-headed lady,” the defense moved for a mistrial on
the basis of prosecutorial misconduct. Renewing the motion after
the jury exited the courtroom, the defense argued that it had
repeatedly alerted the court to “the Solicitor’s attempt[s] to
insert race into this case” and that the “blonde-headed lady”
comment was “one of the most despicable performances [the
defense had] ever seen.” J.A. 1377.
There can be no fair claim that the prosecutor’s tactics
were invited. The state conceded before the district court that
there was no improper conduct by the defense; the defense’s
witnesses merely portrayed Bennett as a non-violent peacemaker
17
and a model citizen in the prison community. The prosecution had
every right, of course, to paint a dramatically different
picture, but through evidence that pointed to the actions of the
man, not the happenstance of his race.
Finally, no curative instructions were given. Unlike the
trial judge in Donnelly, who directed the jury to ignore the
challenged remark, 416 U.S. at 644, the state trial court here
never instructed the jury on particular comments, such as the
“King Kong” and “caveman” references, the “blonde-headed lady”
remark, or the “black Indians” testimony. Whether curative
instructions would have cured the problem or simply served to
reinforce the racial references is a question we need not
address, for the jury retired from the courtroom unadmonished
and its deliberations reached the prosecution’s desired result.
IV.
Even apart from the deference due them under AEDPA, we
emphasize our respect for the efforts of our colleagues in state
courts. We stress once again that prosecutors are entitled to
significant latitude in pressing their closing arguments. There
is no presumption of prejudice from a simple untoward remark;
many challenged prosecutorial comments will amount to little
more than fleeting remarks whose impact is negligible in the
context of an entire trial. But the prosecutor’s conduct here
“so infected the trial with unfairness as to make the resulting
18
[sentence] a denial of due process.” Darden, 477 U.S. at 181
(quoting Donnelly, 416 U.S. at 643). *
The record here tells the story. There is no need for
elaboration on our part. 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.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED
* Our ruling on the prosecutor’s comments makes it
unnecessary to consider Bennett’s claim that the seating of a
racially biased juror violated his right to an impartial jury.
19
Johnny Bennett v. Bryan Stirling
Court: Court of Appeals for the Fourth Circuit
Date filed: 2016-11-21
Citations: 842 F.3d 319
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