Supreme Court underscores juries' right to know if accused killer ineligible for parole

Wednesday, January 9th 2002, 12:00 am

By: News On 6

WASHINGTON (AP) _ Jurors choosing whether to sentence a killer to death or to life in prison must be told if the defendant would have no chance for parole under a life sentence, a narrowly divided Supreme Court reiterated Wednesday.

The court ruled 5-4 that jurors at the 1996 trial of a South Carolina killer should have known that if sentenced to life in prison, William Kelly never would be released.

The jury chose death for a kidnapping, armed robbery and killing that the prosecutor called butchery.

In similar cases in 1994 and 2001, the Supreme Court ruled that defendants ineligible for parole have the constitutional right to inform the jury. Jurors presumably would feel more comfortable imposing a life term if they knew the convicted killer before them would remain behind bars.

Kelly was ineligible for parole under South Carolina law but got no such jury instruction. His lawyer asked for one, but the judge turned her down after the prosecutor said he did not intend to argue that Kelly would pose a future danger to society.

The prosecutor nevertheless made such an argument, although it was cloaked in other legal language, Justice David Souter wrote for a majority that included Justices John Paul Stevens, Sandra Day O'Connor, Ruth Bader Ginsburg and Stephen Breyer.

``A jury hearing evidence of a defendant's demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free as a fugitive or as a parolee,'' Souter wrote.

The prosecutor's closing argument included a remark that he hoped jurors ``would never in your lives again have to experience what you are experiencing now, being some 30 feet away from such a person _ a murderer.''

The prosecutor also called Kelly ``the butcher of Batesburg,'' ``Bloody Billy'' and ``Billy the Kid'' and asked whether Kelly's intelligence made him ``a little more dangerous'' to his victim.

The South Carolina Supreme Court ruled such statements were evidence of Kelly's character, not his danger to society.

Souter called that view a ``fallacy'' and noted the appeals court ruling does not mention the remark about sitting 30 feet from a killer. The prosecutor was implying that Kelly could be released, the court said.

``Since the jurors were unlikely to be spending any time in prison, they would end up 30 feet away from the likes of Kelly only if he got out of prison, as he might if parole were possible,'' Souter wrote.

The court sent the Kelly case back to state courts, which will almost certainly be forced to order a new sentencing hearing.

Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas dissented.

The majority went too far in equating the implication of a defendant's future dangerousness with true evidence of it, Rehnquist wrote for himself and Kennedy.

``The prosecutor did not argue future dangerousness _ as he did in (the 1994 case) _ in any meaningful sense of that term,'' Rehnquist wrote.

Thomas and Scalia said they believe the court was wrong to find such a constitutional right in 1994 and remains wrong in applying it now.

``Today's sweeping rule was an entirely foreseeable consequence,'' Thomas wrote for the pair.

O'Connor provided the crucial fifth vote for a majority, siding with the court's moderate-to-liberal wing.

O'Connor is a cautious supporter of the death penalty, but recent comments indicate she has deep reservations about the way the practice is carried out.

``More often than we want to recognize, some innocent defendants have been convicted and sentenced to death,'' O'Connor reportedly told a group of Nebraska lawyers in October.

Since the Supreme Court allowed states to reinstate the death penalty in 1973, courts have ordered the release of 99 wrongly convicted Death Row inmates.

Earlier, O'Connor said it may be appropriate to require that lawyers handling death cases meet minimum standards for competency.

The case is Kelly v. South Carolina, 00-9280.