After four days, the trial against South Carolina's death penalty reached an end. Thursday morning, attorneys on both sides provided closing arguments, wrapping up a week's worth of expert testimony and debate.
The lawsuit originally filed by Justice 360, a nonprofit organization in SC working to reform policies and practices in capital cases, presented several claims against the state's recently implemented death penalty statute that makes the default method of execution the electric chair and added the firing squad.
Yet, as both sides discussed in their closing arguments, the main focus was on the plaintiff's claims that those methods should be considered cruel, unusual, and corporal punishment under the state's constitution.
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Now that the trial is finished, Judge Jocelyn Newman has 30 days to reach a decision as ordered by the state Supreme Court. However, attorneys expect an appeal regardless of the outcome.
"This case isn't all about science," said Joshua Kendrick, attorney for the plaintiffs at the start of his closing statement. "Our decisions today are guided by mercy."
William Grayson Lambert, senior counsel for Gov. Henry McMaster, countered the sentiment in his closing.
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"We are in a court of law. This court's job is to decide questions of law based on the law and based on the facts that it's heard," Lambert said. "The question of mercy is one of clemency that our Constitution commits exclusively to the government."
Kendrick said he did not ask for mercy in disregard of the law in his rebuttal.
"I asked you for mercy because the definition of mercy is compassion," Kendrick said. "Opposite of compassion is cruelty. The South Carolina Constitution prohibits cruelty in punishment for prisoners and therefore dictates compassion."
Here are other key takeaways from the last day of trial:
In a discussion about the claims of cruel, unusual, and corporal punishment, the plaintiffs reminded Judge Newman about what was presented in the expert testimony over the week. Kendrick mentioned forensic pathologist Dr. Jonathan Arden's testimony that 10% of the cases he reviewed contain evidence of a prisoner being alive and conscious after the first shock in judicial electrocutions.
"The pictures, Your Honor, you will see are graphic. They contain cooking and burning," Kendrick said of the autopsies left for Judge Newman to review over the next couple of weeks.
Both sides discussed whether the debate was based on an originalist argument, an interpretation of the Constitution as it was originally adopted.
Lambert asserted that it was, pointing to definitions of cruel, unusual and corporal used over the centuries in the U.S. and the state constitution and debated in other case law as precedent.
During the week, the plaintiffs claimed the firing squad was unusual due to how infrequently it's been used in U.S. history, only 130 times since 1700. However, in Lambert's argument about the definition of unusual, he pointed out the use of lethal injection, which was first adopted in SC in 1995.
"At some point, someone has to be the first person subjected to it," Lambert said. "So by their own definition, lethal injection would have been unusual in 1995."
However, Kendrick argued an originalist view hinders societal growth. "Originalism has become a way to keep us from progressing as people," he said. "It's a cold-hearted view of people we don't know. It forces us to forget our historical moments when we decided to progress."
Attorneys briefly discussed claims in Justice 360's lawsuit about the use of the word "available" in the death penalty statute and what the South Carolina Department of Correction has done to obtain drugs to perform lethal injection executions. Information about SCDC's attempts to obtain drugs was barred by the protection order implemented by the court.
"Even if the court did not allow the plaintiffs to explore what SCDC had done, the plaintiffs are free to offer evidence of their own efforts to locate a source of drugs, and they put up nothing," Lambert said. "And their silence on that fact is deafening."
The lawyers also discussed a claim that the statute violated a non-delegation doctrine that prohibits the SC legislature from delegating powers to other agencies to make laws. The statute approved by the legislature in 2021 states, "a person convicted of a capital crime and having imposed upon him the sentence of death shall suffer the penalty by electrocution or, at the election of the convicted person, by firing squad or lethal injection, if it is available at the time of the election, under the direction of the Director of the Department of Corrections."
Justice 360 attorneys argued that the SCDC director's power in deciding whether certain methods of execution are available is a violation of that doctrine. However, Lambert argued the statute was is "clearly what the general assembly intended."
"It was for the state to be able to carry out lawfully imposed sentences without further and unnecessary delay," he said.
Lambert also mentioned how the general assembly was the people's representatives and reflective of society. "A conscious decision was made to use these particular methods. And that decision reflects society's current standards and thinking on ways to carry out an execution," he said.
However, in his rebuttal, Kendrick came back to the secrecy of the state's execution protocols when it comes to the general public's ability to have input in such legislation.
"We're one of the only states, if not the only state in the United States of America, that hides the protocol we use to kill inmates," Kendrick said. "People know nothing about this."
Kathryn Casteel is an investigative reporter with The Greenville News and can be reached at KCasteel@gannett.com or on Twitter @kathryncasteel.
This article originally appeared on Greenville News: SC death penalty trial, plaintiffs ask for decision 'guided by mercy'