South Carolina is set to execute a man on death row on Friday, days after the key witness for the prosecution came forward to say he lied at trial and the state was putting to death an innocent man.
Khalil Divine Black Sun Allah, 46, is due to be killed by lethal injection at 6pm. His lawyers filed emergency motions for a delay this week, citing new testimony suggesting he was wrongfully convicted. But the state supreme court ruled Thursday that the execution should proceed.
The last hope for Allah, who was previously known as Freddie Owens, is a grant of clemency from the state’s Republican governor, who has said he would announce a decision just before the execution is set to start.
Allah’s execution would be the first in 13 years in South Carolina and could be the start of a rapid series of executions in the coming months.
Allah is due to be executed in front of three media witnesses at the Broad River correctional institution in Columbia, a spokesperson for the prison said. The state gave Allah a choice of lethal injection, electrocution or firing squad, but Allah objected to signing off on a method, saying that amounted to suicide and violated his Muslim faith. His attorney chose lethal injection for him.
Allah was convicted of the armed robbery and murder of convenience store cashier Irene Graves in November 1997. He was 19 at the time. Graves, a 41-year-old mother of three, was shot in the head during the robbery. Allah has long asserted his innocence.
Prosecutors had no forensic evidence connecting Allah to the shooting. Surveillance footage at the store showed two masked men with guns, but they were not identifiable.
The state’s case rested on testimony from Allah’s friend and co-defendant, Steven Golden, who was also charged in the robbery and murder. As their joint trial was beginning, Golden pleaded guilty to murder, armed robbery and criminal conspiracy and agreed to testify against Allah. Golden, who was 18 at the time of the robbery, said Allah shot Graves.
But on Wednesday, two days before the scheduled execution, Golden signed a bombshell affidavit recanting his testimony, saying Allah “is not the person who shot Irene Graves” and “was not present” during the robbery. Golden’s declaration said he was high when police questioned him days after the robbery, and that he was pressured into writing a statement blaming Allah.
“I substituted [Allah] for the person who was really with me,” he wrote, saying he concealed the identity of the “real shooter” out of fear that “his associates might kill me”. He did not identify this person.
Golden said he agreed to plead guilty and testify when prosecutors assured him he would not face the death penalty or a life sentence if he cooperated – a deal that was not disclosed to the jury.
“I don’t want [Allah] to be executed for something he didn’t do,” he wrote in the new affidavit. “This has weighed heavily on my mind and I want to have a clear conscience.”
The state attorney general filed a response on Thursday suggesting Golden’s new statement was not credible and did not warrant a new trial. Lawyers for the state also argued that other evidence pointed to Allah’s guilt, alleging that Allah had confessed to the shooting to his mother and girlfriend. But Allah’s lawyers rejected the claims of the “jilted former girlfriend” and said his mother had “disavowed” a statement police had her sign suggesting her son had confessed.
“This court has the power and the responsibility to ensure that the state of South Carolina does not kill one of its citizens for a crime he did not commit,” Allah’s lawyers wrote on Thursday.
The attorney general’s office declined to comment. The state supreme court sided with the attorney general, ruling the new evidence did not amount to “exceptional circumstances” warranting a reprieve and suggesting other evidence supported Allah’s guilt.
Allah’s lawyers have also argued in recent weeks that a death sentence was not appropriate for his conviction. He was found guilty of murder without a jury explicitly ruling that he pulled the trigger. Prosecutors told jurors they could convict him for murder simply if they believed he was present during the robbery. It is rare for people to be executed for murders they did not directly commit.
His lawyers have also noted that he endured a childhood of severe violence and was diagnosed with brain damage. And Allah would be one of the youngest people at the time of the crime to be put to death by South Carolina in decades.
South Carolina has not conducted an execution since 2011. Faced with growing backlash, pharmaceutical companies stopped selling lethal injection drugs to the state, but last year South Carolina passed a shield law to conceal the identity of suppliers and has since purchased pentobarbital, a sedative.
The state supreme court last month announced five executions it plans to schedule after Allah, saying they would be spaced at least 35 days apart.
The Rev Hillary Taylor, executive director of South Carolinians for Alternatives to the Death Penalty, said on Thursday that the flaws in Allah’s case were a reminder that “the death penalty is not given to the ‘worst of the worst’, it is given to the people who are least able to represent themselves in court. That is extremely unjust.”
“Khalil should not have to die for somebody else’s wrongdoing. That is not accountability,” she added.
Ensley Graves-Lee, Graves’s daughter, said in an interview Thursday that it had taken a toll on her family to have their tragedy back in the news in recent weeks and that she was shocked to learn of new developments in the case.
“I understand that it is probably difficult for the other side, and I’m sure they would do anything to save someone they love,” said Graves-Lee, who was 10 years old when her mother was killed. “I have to remind myself that I have had no choice in any of the matter. I was 10 when she died and 12 when the verdict came … I had no choice in the death penalty at all.” She added: “I feel like I’m preparing for a funeral … I don’t know if there’s closure after it, but I’m just trying to get past this part that was already decided for me.”
Graves-Lee, a speech pathologist, said she wanted her mother remembered for how hard she worked for her three children, holding down three retail jobs at the time of her death: “She dedicated her life to her children.” She said her mother took extra jobs so she and her brother could pursue dancing and gymnastics. “I’m sure she had dreams for herself, but she always put us first, any sport or any activity we wanted to do, she allowed us to do.”
She also recalled her mom taking them to the mountains and looking at houses in the neighborhood they fantasized buying. She died 1 November, but had already done Christmas shopping for her children, and her former coworkers at a Kmart sent the gifts she had purchased.
“I hate that my mother can’t be here. The circumstances took a lot away from the both of us. My children don’t have their grandmother. She didn’t get to see her children grow up. And it wasn’t fair to her,” Graves-Lee said. “I’m hoping that she’s at rest after tomorrow, too.”
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