Prosecutor's 'King Kong' Comments Cause Death Sentence to Be Overturned

By Casey C. Sullivan, Esq. on November 23, 2016 | Last updated on March 21, 2019

A prosecutor's reliance on 'racially coded references' during sentencing entitled a South Carolina death row inmate to a new sentencing trial, the Fourth Circuit ruled on Monday. The prosecutor's comments during sentencing, including likening the defendant to King Kong and calling him "caveman" and "beast," so imbued the proceedings with racial bias that the defendant was denied a fair proceeding, the Fourth found.

The Fourth's decision upholds a district court ruling tossing the sentencing of Johnny Bennett for murder, kidnapping, and armed robbery, highlighting the way indirect racist appeals can undermine the legal process.

A New Approach for a White Jury

The overturned capital sentence is actually the second death sentence Bennett has escaped. He was previously sentenced to death by a mixed-race jury. When that sentence was overturned by the North Carolina Supreme Court, Bennett was resentenced in a proceeding before an all-white jury.

On the second go-round, the lead prosecutor, Donald Myers, took a new approach, according to the Fourth. As Judge J. Harvie Wilkinson wrote for the unanimous three-judge panel:

[B]efore this all-white jury, Myers 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.

That difference was contrasted even further by Myers's approach in the previous sentencing proceeding, the Fourth said, which managed to "respect the Constitution's prohibition on appeals to racial prejudice."

Egregious Appeals to Racism

So, what sort of racial appeals did the court find so offensive? Throughout the sentencing proceedings, Myers employed dehumanizing, racially suggestive language.

There were the "caveman" and "beast" comments, a reference to Bennett as a "monster" and a "big old tiger." There was unnecessary testimony by a state's witness about a dream of being "chased by murderous, black Indians," and references to Bennett's interracial relationship with a prison guard.

The "most egregious" appeals to racism, the court found, were in Myers's closing arguments, where jurors were warned that, if the met Bennett again it "will be like meeting King Kong on a bad day."

The Fourth rejected the South Carolina Supreme Court's determination that comments were not racially inflammatory. The "King Kong" label, the state Supreme Court said, 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."

Those were, the Fourth Circuit said, "unreasonable findings of fact."

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.

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