SC inmate has a chance to leave death row, but lawyers say it’s the safest place for him

COLUMBIA — An order from South Carolina’s high court created the possibility that Donnie Council could leave death row. But in the 18 years since that ruling, his lawyers haven’t tried to get him moved.

They think death row might be the best place for him.

Another condemned inmate, Ron Finklea, is similarly in resentencing limbo, though for not nearly as long. Neither his attorneys nor prosecutors have taken steps in the 2½ years since the state Supreme Court created the potential for him. It’s unclear why.

But for Council, the reason for his peculiar legal position is straightforward: his mental illness, schizophrenia.

“It’s safer for him and for the rest of the prison population at large for him to just be held where he is,” said Boyd Young, a state public defender who heads Council’s defense team.

Young also represents Finklea but declined to comment on his case.

Council, now 60, was sentenced to death in 1996 for suffocating Elizabeth Gatti, an elderly widow, at her home in Aiken County. In addition to murder, he was also convicted of kidnapping, poisoning, sexually assaulting and burglarizing the 72-year-old woman in 1992.

Gatti’s body was found hogtied in her basement, with layers of duct tape wrapped around her head, surrounded by bottles of cleaning fluid that investigators said she was forced to drink.

But in 2008, the state Supreme Court affirmed a lower court’s decision to toss Council’s death sentence and have him resentenced.

The high court found that Council’s lead trial attorney failed during his sentencing to obtain and present evidence that could have led the jury to decline capital punishment.

According to justices’ order, this potentially mitigating evidence included records that delved into Council’s significant mental health issues from childhood and his family history of alcoholism, domestic violence, mental illness, impoverished living conditions and criminal activity.

If Aiken County prosecutors again seek the death sentence in Gatti’s killing, they’ll have to go through another sentencing trial — which in a capital case is separate from the trial to determine guilt or innocence. But due to his mental illness, Council is not legally competent to be retried.

The state could instead ask for a sentence other than death. A judge can make that decision. It wouldn’t require a separate trial.

That’s what happened to former death row inmate Quincy Allen, who was resentenced in 2024 to life in prison without the possibility of parole after a federal court found the judge over his 2005 sentencing trial ignored his mental illness. After nearly two decades on death row, the convicted killer was moved to Perry Correctional Institution in Anderson County.

More restrictive but familiar

Death row is more restrictive than the facilities where people serve other prison sentences. But it represents stability for Council, helping regulate the symptoms of his schizophrenia, Young said. It keeps him and the people around him safe, added the defense attorney.

“After people are in certain conditions long enough, they get comfortable,” Young told the SC Daily Gazette. “Those conditions, even though possibly more restrictive, they feel more safe.”

Council’s documented symptoms include paranoid ideations and delusions of grandeur.

Young and co-counsel Robert Bank, both attorneys with the S.C. Commission on Indigent Defense, said they believe death row provides the best incarcerated housing situation for him. They explained why:

• Death row, at Broad River Secure Facility, is a familiar environment to Council.

• It currently holds 21 men. So, it’s not as noisy as other prisons with bigger populations.

• Death row inmates have a cell to themselves. In another state prison, Council could have a cellmate.

• The facility is self-contained with its own medical unit. If Council experienced a mental health crisis while housed elsewhere, his attorneys said, he would likely be taken to the Department of Corrections’ Gilliam Psychiatric Hospital, which is inside another prison at the sprawling Broad River campus, exposing him to more inmates in crisis situations.

• Council’s accustomed to the people around him: his fellow death row inmates, corrections officers and healthcare providers.

“It’s not chaos for him right now,” Bank said. “We’re making our best-guess decision on what we think will happen.”

Not competent to be retried

Council was diagnosed with schizophrenia around 2001, five years after entering death row.

Council is getting treatment through the Department of Corrections, but it’s unclear when, or even if, he’ll become legally competent to assist in his defense for a resentencing trial.

State inmates with incompetency issues can’t be medicated against their will if they’re not a danger to themselves or to others, Young said. But they can be forcibly medicated if they become aggressive, he said.

The 2nd Circuit Solicitor’s Office, which covers Aiken County, has not responded to multiple phone calls and emails from the SC Daily gazette requesting an interview with prosecutors about Council’s case.

The S.C. attorney general’s office acknowledged that county prosecutors can either set another death penalty trial or withdraw their notice to seek capital punishment.

“The decision to continue to seek death rests with the solicitors,” said Robert Kittle, spokesman for the attorney general’s office.

In the three decades since Council was sentenced to death, 41 of South Carolina’s condemned prisoners have been executed.

When asked whether Council could remain on death row for safety reasons, even if he is resentenced to a non-death sentence, Corrections spokeswoman Chrysti Shain said the department’s score-based classification system determines an inmate’s custody level and housing assignment.

“We wouldn’t be able to speculate or give an opinion on any inmate’s future housing,” Shain said.

The other resentencing order

Finklea, the other condemned inmate in limbo, was sentenced to death in 2007 for killing a security guard at a former manufacturing plant in Lexington.

Investigators said the now-53-year-old shot the victim, Walter Sykes, two times and burned him alive while trying to rob an ATM at the plant in 2003.

Then in 2019, a Lexington County judge threw out Finklea’s death sentence and ordered him resentenced.

The judge found that, because Finklea withheld information about his severe physical and psychological child abuse at the hands of his mom, his trial attorneys failed to present this mitigating evidence to the jury.

The state Supreme Court declined in July 2024 to review the case, paving the way for the lower court’s decision to be carried out.

It’s unclear why Lexington County prosecutors have not resentenced Finklea in the past two years. Rick Hubbard, solicitor for the 11th Circuit, which has jurisdiction over the case, said he could not comment on the matter because it’s ongoing.

Young and Bank also declined to discuss Finklea’s current situation.

Available court records don’t show that he has a competency issue.