By Bristow Marchant
The State
COLUMBIA, S.C. — A Richland County court has put a looming execution in doubt with a decision two weeks before a South Carolina inmate is scheduled to be put to death.
Judge Jocelyn Newman on Thursday denied the state’s attempt to dismiss a challenge to the state’s chosen methods of execution in the case of Richard Moore. That means attorneys for Moore and other inmates on South Carolina’s death row can move forward with a case that could get South Carolina’s new firing squad and century-old electric chair declared unconstitutional.
“This issue has never been decided by a South Carolina court before,” Newman said in her decision. “To dismiss would be to tell Richard Moore, Freddie Owens, Brad Sigmon and Gary Terry that it’s not enough for a court to entertain before the court has to decide.”
Moore, 57, is scheduled for execution on April 29, and by state law must decide Friday which execution method he’ll choose: state default method the electric chair or the newly-installed firing squad.
Moore has been on the state’s death row 21 years.
Lindsey Vann, attorney for the plaintiffs who brought the case against the S.C. Department of Corrections, said it’s up the state Supreme Court now whether a stay will be issued delaying Moore’s execution as his case moves through the court system.
In 1999, Moore walked into Nikki’s Speedy Mart convenience store in Spartanburg County, unarmed, with the goal to rob it to buy cocaine. He confronted the store clerk, James Mahoney, who had a gun and the two got into a fight. During the scuffle, the gun went off and killed the store clerk.
Moore, who gained control of the gun, fired a shot at a bystander but missed. He was involved in a car accident after leaving the crime scene, and, when a police officer arrived, Moore got out of his truck and admitted he “did it.”
A Nikki’s Speedy Mart cash bag containing $1,408 was recovered from the truck.
Moore’s attorneys are seeking an injunction to halt his upcoming execution on grounds that include last year’s passage of the firing squad law cannot be applied retroactively to him and that electrocution and the firing squad constitute “cruel and unusual punishment” under the U.S. Constitution.
Newman’s decision means Moore’s attorneys will now be able to conduct “discovery,” requesting documents and information from the S.C. Department of Corrections that can be argued in court at a later date.
The state General Assembly passed legislation in 2021 making the electric chair the default execution method and added the firing squad because the state has been unable to execute death row inmates by lethal injection. Moore’s attorneys challenge the state’s contention that the option of lethal injection is “unavailable,” and therefore Moore must choose between being shot or electrocuted.
“The state does not have the unfettered right to kill however they want,” attorney Josh Kendrick argued in court Thursday, saying he would like to ask Corrections Director Bryan Stirling under oath about his department’s process of trying to acquire the drugs needed for the lethal injection.
“If no effort has been made to get the drugs, then it’s not unavailable,” Kendrick added. “The question is whether you can obtain and use them, not whether you have them on hand.”
In an affidavit submitted as part of the case, Stirling said the Corrections Department had contacted manufacturers attempting to purchase the drugs needed for lethal injection, “all of which have refused to sell the drugs to the Department.” Efforts to find the needed drugs from other sources have likewise been unsuccessful, Stirling said.
Lawyers battle over constitutionality of SC’s execution methods
State prison officials have asked the Legislature to pass what is called a “shield law,” that would protect the identities of companies that would normally provide the necessary execution drugs to the state.
South Carolina is now one of four states that have a firing squad. The other states are Mississippi, Utah and Oklahoma.
In 2001, when Moore was sentenced to death, South Carolina had only two methods of execution, his lawsuit said.
Since 2013, when the Department of Corrections first said it could not carry out a lethal injection because it lacked the necessary drugs, 13 states and the federal government “have carried out 222 executions by lethal injection,” Moore’s lawsuit said.
“Additionally, since January 2020, six states and the federal government have carried out 27 executions by lethal injection. Most recently, Donald Anthony Grant was executed by lethal injection in Oklahoma on January 27, 2022. Matthew Reeves was executed by lethal injection in Alabama on the same day,” the lawsuit said. “Thirteen additional executions by lethal injection are currently scheduled in 2022 by various states.”
The inmates’ attorneys argue that the state’s new methods of execution may be unconstitutional. They argue that the South Carolina Constitution actually has stronger language on allowable sentences than the U.S. Constitution, barring punishments that are cruel, unusual or corporal — punishments intended to inflict physical pain.
They contend the firing squad and electric chair will inflict physical suffering beyond what is required to kill them.
“They are cruel because of what they do to a person,” said attorney Hannah Freedman. “Both add damage to the body beyond what would be the case with lethal injection.”
Attorneys for Stirling and S.C. Gov. Henry McMaster, both named as defendants in the case, argued that inmates are not entitled to choose their preferred method of execution beyond what state law allows.
While inmates could be expected to challenge any method of execution, attorney Grayson Lambert argued that electrocution was the default method of execution at the time the state’s current death penalty standards were set in the 1970s, meaning state lawmakers clearly didn’t consider it to be cruel or unusual at the time. The question of method of execution also was not raised when the state switched its default execution from hanging to the electric chair in 1912, Lambert said.
More recently, the state Supreme Court has already allowed executions to go forward under the current options of death offered to the defendants.
Last week, the South Carolina Supreme Court ruled that Moore qualified for the death penalty since his killing was committed during what became an armed robbery. Supreme Court Associate Justice Kaye Hearn was the lone dissent.
In her opinion, Hearn said Moore was clearly not the “worst of the worst” for whom the death penalty is intended.
In March, the state’s corrections department notified the courts that the firing squad was ready for use should an inmate choose that method. Executions are carried out at the agency’s Broad River Correctional Institution outside of downtown Columbia.
The agency spent about $53,600 on supplies and materials to make the changes and comply with state law.
All firing squad members will be volunteers, but their decision to participate could still have lasting effects. Last year, The State published a series of stories that revealed that the closer South Carolina execution workers were to the act of killing, the more mental and physical pain they experienced.
The series also reported an unprecedented level of secrecy around the current execution practices of the Department of Corrections. Though execution teams in South Carolina have historically consisted of fewer than 10 people, last year, more than 100 were made to sign repressive confidentiality agreements that restricted their ability to talk about executions with people beyond that group.
“It’s telling that in every case I’ve seen, an inmate argues the method of execution they’re facing is the worst,” Lambert said, citing challenges to lethal injection brought in other states. But no method of execution can be carried out without some risk of pain, he argued.
The plaintiffs’ request amounts to “rule by judicial fiat, doing away with the rules set by the democratically-elected branches for the whims of whatever court happens to be hearing it,” Lambert said.
He argued that the words used in the state constitution have settled definitions in terms of how the law is applied.
“The plaintiffs are asking what those words mean to you, but that’s not what the law means,” Lambert said. “The words have a set meaning.”
But Kendrick pushed back, arguing that “appealing to a judge’s humanity is not improper. We’re not robots.
“What we’re asking is that you ensure what the defendants are doing is constitutional on state and federal grounds,” Kendrick said.
But Moore’s execution date remains set for April 29, pending action by the state Supreme Court. Moore has exhausted nearly all of his appeals, and, as Kendrick pointed out Thursday, under state law will have to choose his method of execution on Good Friday, the annual commemoration of Jesus Christ’s crucifixion.
(c)2022 The State (Columbia, S.C.)