It took a jury less than two hours to decide that Donnie Council should die for torturing and murdering an elderly Bath woman in 1992. Nearly 20 years after being sentenced to death, though, Council is still awaiting execution.
Council, 47, was found guilty in 1996 of the murder of Elizabeth Gatti on Oct. 9, 1992. He was also found guilty of criminal sexual conduct, first-degree burglary, kidnapping, administering poison and grand larceny.
Gatti was tied up on the floor of her basement for hours after ingesting a mix of household cleaners fed to her by Council, according to previous reports. Prosecutors said Council assaulted, raped and poisoned the 72-year-old widow and then ransacked her home in search of money.
Council is the only inmate from Aiken County currently on death row. Second Circuit Solicitor J. Strom Thurmond Jr. said the appeals process is what takes so long for executions to be carried out.
Capital cases are 'two-phase'
“For the victims' families, it's a 20-year wait, in some circumstances, only to find out that the case has been reversed,” he said. “It's a daunting endeavor for all parties – prosecutors, defense lawyers, victims.”
Thurmond explained that a capital case is a “two-phase procedure.”
“There's the guilt phase – did the person do it?” he said. “And if the jury finds a person guilty, there's a penalty phase, where the jury decides what the punishment is, either life imprisonment ... or the imposition of the death penalty.”
If a case is reversed in the guilt phase, it would be a “do-over,” according to Thurmond.
“If the case is reversed in the penalty phase, you will then have a new trial for sentencing purposes,” he said, “which is somewhat of a legal fiction because you would still have to call all the witnesses as you would have in the guilt phase to explain to the jury how we got to this point.”
Retrying a case is difficult, he said, especially years after the fact.
“What happens after a case is reversed after a long period of time and you have to start over, you've got a decade or more of faded memories, police officers who have retired, witnesses who have died,” he said. “In many cases when a capital case is reversed, the case is pled to a life sentence because it's too daunting a task to have to do it again.”
Stages of appeals
The first stage of appeals after someone has been sentenced to death is the direct appeal, “where a subsequent set of attorneys for the defendant would seek to raise errors of law, either in the guilt phase or the penalty phase, and have the case reversed,” Thurmond said. That appeal can go through the state Supreme Court, at which point either losing side can petition for a writ of certiorari to the U.S. Supreme Court.
“Once all those are exhausted, you then get to jump over and go through something called post-conviction relief, which is where another set of attorneys then allege that the defendant's trial counsel was not effective in his preparation of the case, either in the guilt phase or the penalty phase,” Thurmond said, adding that means another “layer” of appeals.
After the direct appeals and the post-conviction relief hearing, which can also be appealed, the case goes to the federal system in a “federal habeas matter,” according to Thurmond.
“Then you can work those same issues all the way through our U.S. District Court, up through the Fourth Circuit Court of Appeals, ultimately to the United States Supreme Court,” he said. “In some cases, it can be 20 years worth of appeals before a death sentence is ultimately carried out.”
'A legal no man's land'
In the case of Donnie Council, his post-conviction relief was granted.
“In other words, the PCR judge found that his lawyer at the trial stage was not effective in representing Donnie Council,” Thurmond said. Council was later found not competent to stand trial.
“His attorneys don't want him to be treated for his mental illness, because then he can be resentenced if he becomes competent,” Thurmond said. Because Council's attorney was found defective in the penalty phase, Council would only get a new sentencing phase.
“Even if he were resentenced – which he can't until he's competent – he then ultimately could not be executed unless he stayed competent,” Thurmond said. “Somebody who is not competent can't be executed.”
Because Council has been granted post-conviction relief but is not competent to be retried in the sentencing phase, Thurmond said he is in a “legal no man's land.”
“He is still on death row and is under supervision to determine his competency. No court has been able to declare him competent,” Thurmond said. “There's not going to be another sentencing phase of the Council matter unless and until he is deemed competent to stand trial.”
If Council is deemed competent, he would get a sentencing phase-only trial and a jury would be empanelled.
“Essentially, all the witnesses would have to be identified or recalled to tell that jury what happened,” Thurmond said. “Then that jury would decide if he were to receive a life sentence or a death penalty.”
Edgefield inmate on death row
In addition to Council, Steven Louis Barnes is the only other area inmate on South Carolina's death row.
Barnes was considered the ringleader of a group of six people involved in the kidnapping, torture and shooting death of 16-year-old Samuel Sturrup Jr. in September 2001.
Police said Sturrup and Barnes were friends, and that on Labor Day weekend in 2001, Barnes accused Sturrup of stealing money from him. Barnes and five others kidnapped him, beat him and then shot him, with Barnes delivering the lethal shot to Sturrup's head. Sturrup's remains were found nine years later.
Barnes was convicted and sentenced to death in November 2010. He was previously convicted on charges of armed robbery for an incident stemming from when he was the owner of an escort service in Columbia County, Georgia. He was serving a life sentence on those charges when he was sentenced to death for Sturrup's murder.
Barnes remains incarcerated in the S.C. Department of Corrections. The 11th Circuit Solicitor's Office could not be reached for comment for this story.
Teddy Kulmala covers the crime and courts beat for the Aiken Standard and has been with the newspaper since August 2012. He is a native of Williston and majored in communication studies at Clemson University.