CHARLESTON, S.C. (CN) — A federal appeals court heard arguments Wednesday to overturn the capital conviction against Brandon Council, a mentally ill Black man convicted of killing two employees during a 2017 bank robbery.
Federal public defender Barry Fisher argued the district judge who presided over Council’s trial should have independently investigated the defendant's competency in the middle of the high-profile proceedings.
The judge also should have questioned jurors further about their racial biases in a case where a Black man stood accused of killing two white women, the attorney argued.
Council, 37, was convicted for the murders of Donna Major and Katie Skeen during an armed robbery at Crescom Bank in Conway, a small city north of Myrtle Beach, according to court briefs.
The North Carolina man had a pistol hidden under his shirt when he entered the bank branch the afternoon of Aug. 21, 2017, and approached Major, the lone teller. Council shot the 59-year-old woman and ran into a nearby office, where he found Skeen huddled behind her desk.
He shot Skeen, 36, twice, including once in the head. He stole $15,000 in cash and shot Major in the head before fleeing the bank, records state.
Council was arrested two days later in North Carolina. He confessed he shot the women to stop them from sounding an alarm. He also made several unusual statements about demons, mind control and soldiers.
“It’s so many demons out here, man,” he told FBI agents. “Y’all just don’t know. These demons out there — you got to control the people’s minds and (expletive)."
Chief Judge R. Bryan Harwell of the U.S. District Court in South Carolina presided over Council’s trial and sentencing in 2019. His defense team did not dispute their client’s guilt, but offered evidence about Council’s grim upbringing and mental health struggles at sentencing.
Those mental health issues arose during trial. Council’s attorneys told Harwell after the state rested its case that their client had became “delusional," according to the briefs. He believed God killed the women, but he was blamed because the court couldn’t subpoena the Almighty.
Harwell tried to speak with the defendant. He cried and muttered about God at the defense table, records state.
Harwell found there was reasonable cause to doubt Council’s competency, but he did not order an independent expert evaluation and report. Instead, two experts retained by the defense met with Council and sent a brief statement to the judge saying they believed the trial could proceed.
In arguments Wednesday, Fisher told the Fourth Circuit Court of Appeals that Council’s lawyers were concerned the government might use the results of an independent exam to obtain a death sentence, which is why they agreed to have their own psychologists speak with him.
Harwell should not have gone alone with the plan, Fisher argued. Under federal law, the judge was required to order an independent exam of the defendant and make his own finding based on the evidence.
The defense’s experts were not independent and their brief statement offered a conclusion, but no evidence, Fisher said.
U.S. Circuit Judge J. Harvie Wilkinson III, a Ronald Reagan appointee, questioned why the “signs and manifestations” of Council’s incompetency were not present earlier in the case. A competency hearing in the middle of trial could cause jurors to forget the facts of the case, he said.
Fisher pointed to the bizarre statements Council made in the interview with FBI agents. The district judge asked defense lawyers earlier in the case if they planned on challenging competency, but they chose not to raise the issue.
U.S. Circuit Judge Toby Heytens said what he found “most troubling” in the case was the government’s objection to asking prospective jurors a question about racial bias.
“This is a case where a Black defendant used a firearm against white people in a violent bank robbery,” the Joe Biden appointee said. “I don’t understand why the government objects to asking prospective jurors if certain races are more prone to violence.”
U.S. Deputy Chief Attorney Ann O’Connell Adams said she did not know why prosecutors objected to that specific question. Defense attorneys proposed 25 questions on racial bias and the parties agreed to ask a few of them, she said.
Heytens was also concerned that Council’s attorneys did not challenge the government’s decision to strike an unusual number of black jurors. The appellate judge acknowledged the attorneys waived the claim, but Harwel, who was appointed to the court by George W. Bush, seemed to convey he did not want to delay the trial.
Wilkinson said the defense had a tough case. Council was accused of gunning down two innocent women in cold blood and then appeared to celebrate afterward with a friend.
He would never want a case to be influenced by racial bias or emotions, the appellate judge said, but he does not believe that is what happened in Council's case.
“I think the ultimate outcome was dictated by the sheer cruelty of what happened to these two individuals,” he said. “That’s why the case turned out the way it did.”
Council is being held at a high-security federal prison in Indiana. An execution date has not been scheduled.
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