Header Header Convicted child killer on death row gets another chance at life

Nine-year-old Stephanie Burditt's gravesite is in Dorchester Memory Gardens.

The bright red Coca-Cola logos on the sign for Spell's Grocery Store have nearly faded. As the sun set behind the brick building in Summerville on a recent evening, cars whisked by the neighborhood store, many of the drivers probably unaware that 20 years ago a 9-year-old girl's life had ended at that very spot.

Stephanie Burditt's bright smile is now frozen on a heart-shaped gravestone at a cemetery about eight miles south of the store.

For 19 years, Timothy D. Rogers, 45, has been in prison, convicted of shooting Stephanie in the head and sentenced to death.

But Rogers has not just been sitting on death row awaiting his end. He has been fighting for his life, and now he's getting a third chance to avoid a lethal injection and, possibly, even walk the streets again as a free man.

About two weeks ago, a decision by the South Carolina Supreme Court essentially sent the case back to Dorchester County, where its solicitor will have to retry the sentencing hearing for Rogers.

“It's almost still basically a trial. You have to pick a jury and put evidence in a case,” said 1st Circuit Solicitor David Pascoe, who will try the case.

The older the case, the more challenges there are for both sides, according to Miller Shealy, a former assistant U.S. attorney and now a professor at the Charleston School of Law.

“Criminal cases are not like wine. They don't get better with time. They get worse. They turn to vinegar,” Shealy said.

Those who were involved in this case echo that observation.

“You have witnesses that are disabled or deceased or can't find them,” said Walter Bailey, the 1st Circuit Solicitor who prosecuted the case in 1994.

Burditt parked his truck next to a pay phone, and he and his daughter walked into the store. On his way out of the store, Burditt stopped to talk to another friend. Stephanie hopped back into the truck, where she waited for her father.

Three people who were strangers to Burditt then walked up to the store: Rogers, his 16-year-old girlfriend at the time and a 21-year-old Sangaree man. The 21-year-old started arguing with Burditt and his friend, possibly about the use of the pay phone.

Michael Burditt got back into his truck as the arguing continued.

Rogers, who was 24 years old at the time, then pointed a gun at Burditt's head, threatened to kill him, and spit on him. Burditt or his friend, both white, may have used racial slurs toward Rogers, a black man.

Rogers also has said he saw Burditt reach behind the truck seat, so Rogers fired his gun, as a “warning shot.” He denied spitting on and threatening to kill Burditt.

The gunshot hit the left hubcap of Burditt's pickup truck. He fired his gun again while Burditt cranked up his truck and began to leave. That shot pierced the back window of the truck and struck Stephanie Burditt in the head. The 9-year-old girl was taken to the hospital, where she died the next day.

Rogers fled the scene and the state, but was arrested in Alabama shortly afterward and was charged with murder, according to court records.

He later turned down a plea bargain that would have spared him the death penalty and would have sent him to prison for life without the possibility of parole.

Rogers said Stephanie Burditt's killing was an accident, and that he wanted only to intervene in the argument, and he fired the gun to scare Michael Burditt.

Rogers has admitted he fired the shot that killed the child, but he has maintained that he never meant to shoot her.

“He had to take responsibility for the murder. That was part of the plea deal,” Bailey said. “It was an intentional act. The child's head was clearly visible through the back window of the truck. He was a couple feet behind the truck, so he could clearly see into it.”

But Rogers balked at the deal and demanded a trial. On March 3, 1994, after four days, a jury found him guilty of murder.

During the sentencing hearing, Rogers asked for mercy. “I never meant to hurt the Burditt family. I never meant to hurt any child, 9 years old,” Rogers told the jury. “I ask the jury to spare my life.”

After 3½ hours of deliberating, on March 5, 1994, the jury came back with a decision. As it was read, Rogers appeared stunned, bowing his head and rocking slightly in his chair.

Despite his plea for his life, the jury recommended that he be executed, and the judge agreed.

“It didn't have to be this way,” said his attorney at the time, Bill Runyon, following the sentencing. “We had it worked out for him.”

Two years later, Rogers got another chance to stay alive. State law at the time of his original sentencing had prevented the judge from telling jurors that with Rogers' criminal record, a life sentence would mean life without parole.

Rogers' death sentence was automatically overturned in June 1994 when the U.S. Supreme Court ruled in another South Carolina case that a jury must be told if a life sentence means no possibility of parole.

The order gave Rogers a new sentencing hearing in 1996.

This time the jury was told that a life sentence would mean life without parole. And, for a second time, a second jury sentenced Rogers to death.

“They were told in a second jury and they still decided he would get the death penalty, which made our original advice to take the plea bargain seem more reasonable,” Runyon told The Post and Courier in a recent interview.

On June 12, 2000, Rogers filed for post-conviction relief, in which his new attorneys claimed he had received ineffective counsel; they requested a new trial and sentencing.

In 2010, a full decade later, Circuit Judge Diane Goodstein dismissed many of Rogers' claims, but agreed with enough of them to grant Rogers a new sentencing hearing.

The heart of Rogers' argument lies in that plea bargain he rejected in 1994. During that time, life sentences for murder convictions could be paroleable. So in order to secure that Rogers remain in prison for life, prosecutors offered a deal: plead guilty to two counts of criminal sexual conduct with a minor and murder and you will spare yourself a trial in which you could get the death penalty.

The criminal sexual conduct charges, which were unrelated to the murder, stemmed from Rogers' relationship with his girlfriend, who was a minor at the time.

The plan was to stagger the guilty pleas over several days, so that Rogers would be subject to the two violent strikes that would keep him in prison his entire life once he pled guilty to murder.

When Rogers backed out of the third leg of that plan, deciding not to plead guilty to the murder, the negotiation was off.

But the sex convictions stuck. Prosecutors still used the convictions of criminal sexual conduct against Rogers during the sentencing hearing, according to the order.

So in her order, Goodstein also threw out those two criminal sexual conduct convictions.

In hindsight, Runyon said he had a goal during the case — saving Rogers' life, which he did. “You can try to save your client's life or you can worry about protecting the lawyer's situation on the record,” Runyon said. “If you do it the way legal experts say it should be done, if you dot every 'i' and cross every 't' and they get the death penalty, they're going to die.”

From the time Rogers applied for a new trial and sentencing and Goodstein issued the order, 10 years had gone by. It's unclear if the same judge presided over the entire course of the court's consideration of that application.

Goodstein's office said due to ethical rules, she is not allowed to comment on the pending case.

Charleston School of Law Professor Miller Shealy called it an “unusual” amount of time, but Shealy did not want to speculate on why it could have taken this long. “Who knows?” he said.

Bailey also called it “extremely unusual,” but said other factors could have been at play.

Diana Holt, Rogers' current attorney who represents prisoners on death row, would not comment on the specifics of the case. But she did answer questions about the amount of time it took for a judge to make a decision.

“To quote Martin Luther King Jr. 'The arc of the moral universe is long, but it bends toward justice,'” she said. “Sometimes it takes a long time to get to the truth.”

“There is no 'normal' when talking about the death penalty,” Holt said.

The 2010 order by Goodstein was not the end of Rogers' journey in trying to get another chance to escape execution. Shortly after, the state appealed the judge's decision. The South Carolina Supreme Court agreed to hear the case, but on Sept. 25 it issued an order essentially stating that it should not have accepted the case for review.

The case is now in Solicitor David Pascoe's hands. He's currently reviewing the case file and is planning to set up a meeting with Stephanie Burditt's family.

Her father, Michael, did not respond to The Post and Courier's requests for comment. A family spokesperson responded to the newspaper's request on behalf of Stephanie's mother, Belinda, and said they had been advised not to speak to the media until after the hearing.

During the first hearing in 1994, Michael Burditt testified about coping with the loss of his daughter.

“It gets easier, but it's not that easy. It's a terrible tragedy. I loved my child dearly,” he told the jury. “There is not a day that goes by that I don't hear that shot and reach out for Stephanie.”

During her testimony at the hearing, Stephanie's mother described her daughter, who was a fourth grader at Newington Elementary School, as an outgoing little girl who earned merit badges as a Brownie, loved to play with dolls and enjoyed riding her bicycle.

Now her family will have to weigh in on Pascoe's decision whether or not to go after the death penalty again.

“They will have the largest say in determining what I'm doing in this case,” Pascoe said.

The other option could result in a life sentence for Rogers.

But since the statute abolishing parole for murder convictions was not in place at the time of Rogers' 1994 trial, if he's sentenced to life, that could really mean a 30-year sentence, when he would be eligible for parole. Since he's already served 21 years, he could be freed in nine years.

That's the same number of years Stephanie Burditt lived her life. The bright smiling child enjoyed sitting with her father while he worked on a race car he was building in his spare time, according to testimony during the 1994 hearing.

A reminder of that race car is engraved in the gravestone that sits above her final resting place. Bright flowers adorned the site on a recent afternoon, a sign that Stephanie Burditt is gone, but never forgotten.

Reach Natalie Caula at 937-5594 or Twitter.com/ncaula.