Court: Discuss Parole In Death Cases

A divided Supreme Court underscored its view Wednesday that jurors choosing between a death sentence and a life term in prison should be told if the convicted killer has no chance of parole.

The court ruled 5-4 that jurors at the 1996 trial of a convicted South Carolina killer should have known that he could never be released if he was sentenced to life in prison. The jury chose death for a kidnapping, armed robbery and killing that the prosecutor called butchery.

William Kelly appealed, and the South Carolina Supreme Court ruled against him on grounds a jury instruction about parole eligibility is not required unless prosecutors want to argue that the killer would continue to be a danger to the community.

The prosecutor in Kelly's case made just 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 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 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 state appeals court ruled that such statements were evidence of Kelly's character, not his danger to society.

Wednesday's case is the third time the Supreme Court has used South Carolina's sentencing procedures to make the point that a defendant's constitutional right to "due process of law" includes the right to instruct the jury about parole eligibility.

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

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