COLUMBIA, S.C. --
Chief Justice Jean Toal says she doesn't want the U.S. Supreme
Court to again overturn several South Carolina death penalty
cases because her justices didn't go far enough to protect
defendants.
On Tuesday, Toal heard arguments on the best way to set
procedures to determine if defendants were mentally retarded
after the U.S. Supreme Court banned the execution of the
retarded last year.
Defense lawyer John Blume says the case could affect about
10 of the 71 inmates on South Carolina's death row, while
Assistant Attorney General Don Zelenka said as many as 20
death sentences could hang in the balance.
The state wants judges to decide on their own whether an
inmate is mentally retarded, while lawyers for six death row
inmates and a man awaiting a death penalty trial want a jury
to determine if a defendant is mentally retarded.
Experts say that one
determination could go a long way in deciding who gets
sentenced to death because juries are often more sympathetic
than judges.
At issue Tuesday was who should make the guidelines.
Zelenka wants the judges to wait and allow the Legislature to
set a procedure to determine mental retardation, while Blume
said the high court might as well set up the rules now because
anything lawmakers do will be appealed "by people like me" for
years to come.
Associate Justice Costa Pleicones asked Blume "why should
we do anything in the absence of a case or a controversy?"
Although a bill has been introduced that would define
mental retardation and decide who would make that call, Blume
said there is no guarantee the Legislature will act this
session.
Toal seemed to have no problem with the court stepping in,
especially since the U.S. Supreme Court ruling has halted
cases all the way from trial courts to nearly final appeals.
She said she worried the Supreme Court could end up again
on the wrong side of the U.S. Supreme Court if they side with
the state's argument of "don't give (defense attorneys) an
inch more."
Toal said the most recent example was how defense lawyers
in many death penalty cases couldn't tell juries that the only
other choice besides death is life without parole. The U.S.
Supreme Court disagreed, and several death sentences are now
in limbo.
In this case, Toal seemed to side with Blume, who said in a
death penalty case out of Arizona that juries must decide on
any facts that could lead someone to be sentenced to death.
"Why wouldn't we select the option we know will be
acceptable to the U.S. Supreme Court?" Toal asked.
"We don't think the jury needs to make that decision,"
Zelenka said.
Blume disagreed. "Any factor that renders a defendant
eligible for the death penalty has to be supported unanimously
beyond a reasonable doubt by a jury," he said.
The justices will rule at a later date.
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