A federal court heard arguments Tuesday on whether Gov. Henry McMaster, who once said he had “no intention to commute” death row inmate Richard Moore’s sentence, will be allowed to hear his clemency petition.
A lawsuit asks a federal court to take the extraordinary step of stripping McMaster of his state constitutional power to consider clemency for Moore in large part due to comments he made to the press in 2022.
Lawyers for Moore, who was sentenced to death for shooting and killing convenience store clerk James Mahoney during a 1999 robbery in Spartanburg County, have said that McMaster’s role as the state’s attorney general during Moore’s appeals — and statements indicating that he had made up his mind about clemency — violate Moore’s due process right to have his clemency petition heard.
Moore is scheduled to be executed on Nov. 1 . He had been scheduled to be executed by firing squad in April 2022, but the Supreme Court stayed the execution. McMaster told reporters at the time that he did not plan to offer Moore clemency as his crimes warranted the death penalty.
“I’ve seen the record, and there have been many hearings up and down, motions, and this penalty is a very strong response to criminal activity — but it is a necessary response,” McMaster said.
As a result, Moore’s lawyers now say they want either Lt. Gov. Pamela Evette or the state’s parole board to rule on Moore’s clemency petition. Moore has yet to submit a petition for clemency, because he believes that he will be denied, according to his lawyers.
But McMaster, who served as attorney general for eight years from 2003 to 2011, has argued that he has not pre-judged Moore’s clemency application and removing his clemency powers would violate his exclusive, state constitutional powers to grant clemency.
“The governor can say whatever he wants because clemency is solely in his prerogative,” his attorney, Grayson Lambert, told the court.
It is a view that U.S. District Judge Mary Geiger Lewis appeared to endorse Tuesday.
“This is not the business of the courts. He (McMaster) has absolute and complete discretion” on the issue of clemency, Lewis said from the bench during a fierce back and forth with Moore’s attorney, Lindsay Vann.
Clemency is not a judicial proceeding and McMaster is not a judge who is compelled to be impartial, Lewis said.
Instead, as long as McMaster decided on the matter of Moore’s clemency “reasonably and not arbitrarily or capriciously, then I believe that comports with due process,” Lewis said.
To that effect, she made the apparently unprecedented suggestion that McMaster submit an affidavit to the court swearing that he would decide Moore’s clemency fairly.
McMaster would “probably” be willing to submit the affidavit, Lambert told the court.
In a statement sent following the hearing, attorneys for McMaster said “the Governor remains committed to reviewing diligently and considering thoughtfully any clemency petition the plaintiff may wish to submit.”
Moore’s scheduled execution marks the second time that McMaster, who also served as U.S. Attorney for South Carolina, has had an opportunity to consider a clemency petition. Executions were halted in South Carolina for 13 years after the state ran out of the drugs used in lethal injections. The executions resumed last month after McMaster declined clemency to Freddie Owens, another Upstate man, who was executed on Sept. 20 .
Owens submitted more than 200 pages of documents as part of his clemency petition, according to Vann.
The United States Supreme Court previously held that a governor’s personal beliefs, even a blanket opposition to granting clemency, is permissible.
Noting the urgency of the case, Lewis said that she intended to rule on the issue soon.
“Ever since this came to my desk, this is really all I’ve thought about.”
Reporter John Monk contributed to this article.
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