Originally created 11/16/00

Convict's lawyer will get access to notes



AIKEN - Death row inmate Donnie Council, convicted in the 1992 torture killing of an elderly Aiken County woman, returned to Aiken for a brief visit Wednesday as his attorney worked on his latest appeal.

The inmate, who was shackled on his legs and guarded by a corrections official armed with a shotgun, appeared bored as defense attorney Teresa Norris worked on efforts to get his convictions overturned.

In preparation for a post-conviction relief hearing set for early next year, Ms. Norris asked a judge to grant her access to scribbled notes and the trial notebook used by 2nd Circuit Solicitor Barbara Morgan in the 1996 trial. Assistant Solicitor Grant Gibbons argued that the prosecution's notes were privileged information that his office was not required to release.

But Ms. Norris said the solicitor's office had already waived its privilege by releasing several documents to author Harriet Brown, who is writing a book about the high-profile case. The book is tentatively titled Something Wicked This Way Cometh.

Judge James R. Barber III granted Ms. Norris' request and ordered the solicitor to disclose the items to the attorney, who is employed with the Center for Capital Litigation in Columbia, a nonprofit organization.

But the judge said the notes could not be disclosed to anyone else without his permission. That means they could not be used against the prosecution if a judge eventually orders a new trial in the case.

"I don't want anyone to see it unless they are involved in your efforts," Judge Barber said.

Ms. Norris said she wants to review the solicitor's notes to see if there is anything in them to contradict the testimony of prosecution witnesses in the original trial. The post-conviction relief hearing is planned for the spring.

Mr. Council, 35, was convicted in a 1996 trial in the torture murder of 72-year-old Elizabeth Gatti of Bath. The victim was found dead in her home in 1992 after neighbors noticed her newspaper lying untouched in the driveway - out of character for the widow, who had asked nearby residents to help look out for her.

Ms. Gotti had been beaten, raped, hog-tied on the floor of her basement for hours and finally smothered with duct tape that was wrapped around her head. She was also forced to drink poisonous household cleaners before she died.

Her house was ransacked, and two televisions were missing, as was her gold 1972 Buick LaSabre, which later was found abandoned in the parking lot of a Graniteville housing project. Mr. Council was arrested and charged in the case when physical evidence tied him to the crimes.

During his trial, Ms. Morgan fought back tears at times as she told the jury Mrs. Gatti's death was "the most malicious, evil-hearted, torture-murder killing that I can think about."

Mr. Council was convicted and sentenced to death. The South Carolina Supreme Court upheld his conviction, and the U.S. Supreme Court refused to overturn it.

In May, Mr. Council filed his post-conviction relief hearing, seeking to have his nine convictions and sentences overturned because his lawyers didn't try hard enough to discredit genetic tests used in his original trial.

His motion states that his original trial attorneys didn't hire an expert to challenge DNA tests, considered a new science when he was tried. As a result, he claims, his case made legal history in the state - it was the first time a South Carolina jury was allowed to consider that kind of evidence.

Mr. Council claims the failure of trial attorneys James E. Whittle Jr. and Gregory Harlow to hire an expert on DNA testing allowed it to be used against him "without sufficient guarantee that the underlying science was reliable."

Mr. Council is being held on death row at Lieber Correctional Institution in Ridgeville.

Reach Greg Rickabaugh at (803) 279-6895 or greg.rickabaugh@augustachronicle.com.