John Blume and Lindsey Vann, attorneys for Justice360 who represent Richard Moore, talk to reporters outside the federal courthouse in Columbia on Tuesday, Oct. 15, 2024. (Skylar Laird/SC Daily Gazette)
COLUMBIA — Gov. Henry McMaster can decide whether to grant clemency in the state’s upcoming execution, a federal judge decided.
Ahead of Richard Moore’s execution, scheduled for Nov. 1, his attorneys argued that McMaster could not make a fair decision on whether to commute Moore’s sentence to life in prison — a last resort for condemned prisoners who have exhausted all their appeals.
Moore’s attorneys plan to appeal federal Judge Mary Geiger Lewis’ ruling, Lindsey Vann, director of nonprofit legal group Justice360, told the Daily Gazette on Tuesday.
Attorneys are also waiting on a decision from the U.S. Supreme Court as to whether Moore’s sentence was legal. In a court response filed Tuesday, the S.C. Attorney General’s Office argued it was.
After Moore was convicted of killing gas station clerk James Mahoney in 2001, McMaster successfully fought Moore’s appeals as the state’s twice-elected attorney general. He was the state’s chief prosecutor from January 2003 to 2011.
Ahead of Moore’s scheduled execution in 2022, which was halted amid a now-concluded lawsuit, McMaster said he would not grant him clemency, suggesting he had already made up his mind, Moore’s attorneys argued.
The attorneys instead asked Lewis to hand the clemency decision over to the state’s parole board. While the parole board handles sentencing challenges on most cases, state law says only the governor can commute a death sentence to life in prison.
But McMaster has no legal obligation to issue an unbiased decision, Lewis wrote in a Monday order.
A governor’s previous service as attorney general does not preclude them from granting clemency, Lewis wrote.
She pointed to a 2001 case in which the North Carolina Supreme Court also decided that the governor at the time could decide on clemency despite a previous job as the state’s lead attorney.
“The Court thus concludes Governor McMaster’s prior service as attorney general fails to affect the constitutionality of the state’s clemency procedures as applied to Moore,” Lewis wrote.
As to his comment that he had “no intention” of granting Moore clemency, he has had plenty of time to change his mind in the two years since, Lewis wrote.
Because Moore’s legal team had not yet filed a clemency petition when McMaster told reporters he had “no intention” of granting clemency, the governor was relying on his own knowledge of the case, she continued.
“It makes logical sense, then, Governor McMaster had ‘no intention to commute (Moore’s) sentence’ as of April 20, 2022,” Lewis wrote, quoting what he said to reporters at the time.
Even if the law did require McMaster to make an impartial decision in the matter, Lewis wrote that she was confident he “will give full, thoughtful, and careful consideration to any clemency petition filed by Moore, giving both comprehensive and individualized attention to the unique circumstances of his case,” the order reads.
McMaster said he would do as much in a signed statement submitted to the court Thursday.
“In such matters, it is and has been my intention and commitment to take care to understand the issues presented, including those from my review and consideration of applications, petitions, and requests for clemency presented to me by or on behalf of a condemned inmate in advance of an execution date,” McMaster’s statement read.
Pending U.S. Supreme Court decision
Moore’s attorneys are awaiting a decision from the U.S. Supreme Court as to whether it was constitutional for prosecutors to remove the only two qualified Black candidates from the jury pool during his 2001 trail. The jury that convicted and sentenced Moore, who is Black, was composed of 11 white people and one Hispanic man, the filing reads.
The solicitor’s office did not remove white jurors with similar backgrounds, and Moore’s original attorneys did not fight the move hard enough during the trial, his current attorneys argued in their petition appealing a decision by the state Supreme Court.
In response, Attorney General Alan Wilson’s office said the state’s high court should have the final say on the question. Beyond that, prosecutors removed the two Black jury candidates for legitimate reasons that had nothing to do with their race, according to state prosecutors.
“There is no pretext; there is no discrimination; and there is no cause for yet another review of the same information that has been a matter of record for years,” the filing reads.
Moore’s attorneys also argued that his sentence was too extreme because he did not enter the gas station armed. That does not rise to the level of the “worst of the worst” crimes for which the death penalty is usually reserved, they wrote in the petition.
The Attorney General’s Office pointed to the fact that every appeals court that has heard Moore’s case, including the state Supreme Court, has upheld his sentence.
“In other words, every court to delve deeply into the evidence has disagreed with Moore’s claim, that he again repeats to this Court, that his is not truly a capital case,” the Tuesday filing reads.
Moore decided Friday he would die by lethal injection.
He is the second of six inmates to be scheduled for execution after the state’s high court decided firing squad and electrocution were both constitutional methods of death.
