CHARLESTON, S.C. — A competency hearing to determine whether the man convicted last month of killing nine people in a Charleston, S.C., church, can continue to serve as his own attorney will be closed to the public, the judge overseeing the death penalty case ruled Monday morning.
The pervasiveness of social media as well as Roof’s right to a fair trial were factors in the decision of U.S. District Court Judge Richard Gergel, who said he would be compelled to sequester the federal jury if he allowed the public and press to attend the hearing.
Noting the “saturation in coverage,” Gergel said jurors can be inadvertently exposed to new information in the case while shopping at the grocery store or driving a car.
“I can’t walk down the street without hearing people talk about this case,” he said.
Roof, convicted of 33 federal counts in the June 2015 attack on Emanuel African Methodist Episcopal Church, last week told the court he planned to offer an opening statement in the sentencing phase of the trial, but would offer no evidence and call no witnesses in his defense. The 22-year-old defendant appeared at a hearing to determine whether the hearing should be closed wearing a jail jumpsuit, handcuffs and leg shackles.
That public announcement prompted his defense attorney, David Bruck, now in the role of standby counselor, to request a competency hearing to determine whether Roof has the capacity to represent himself.
“This defendant’s announcement (on Wednesday) that he will not defend himself against the death penalty — following a government presentation that is expected to involve more than 38 additional witnesses and hundreds more exhibits — raises in especially stark fashion the question of whether the defendant is actually unable to defend himself,” Bruck wrote in a motion regarding the Monday hearing.
Gergel granted the motion, and Roof was examined for five hours over the weekend by Dr. James C. Ballenger, a forensic psychiatrist based in Charleston.
Ballenger's examination of Roof is the second in as many months. In November, the psychiatrist examined Roof after Bruck and the defense team asked for a competency hearing as jury selection was set to begin.
That move came after Roof sought to dismiss his team of four counselors who together offer nearly a century in death-penalty litigation experience. They had sought to offer a mental health defense, one that Roof blocked shortly after becoming his own lawyer.
This second competency hearing is scheduled one day ahead of the beginning of the sentencing phase of Roof's trial, where jurors will weigh a sentence of life imprisonment against the death penalty.
The closure comes over the objections of media outlets and family members of the nine victims shot to death in the attack.
Gergel said his instinct is to not close the proceeding, but the hearing would in part cover Roof’s planned strategy, one that he said includes more than not offering witnesses or evidence. The judge said he plans to release transcripts of the competency hearings after a verdict is reached.
How Dylann Roof might save himself
When Dylann Roof appears in federal court on Tuesday for the penalty phase of his trial, he will be representing himself as his court-appointed lawyers stand by and watch. I'm sure Roof's decision to represent himself was applauded by those who believe Roof deserves to die for killing nine innocent people while they worshiped at a church in Charleston, South Carolina. Common sense suggests that a defendant who represents himself in a serious criminal case, especially a death penalty case, becomes a much easier target for the prosecution.
That's certainly the prevailing view among lawyers and judges. In Roof's case, the federal judge overseeing the trial told Roof point blank that it's "a bad idea." I have no idea what kind of a defense Dylann Roof intends to present, or if he will even try to convince the jury not to impose a death sentence. At a hearing last week, Roof told the judge that he does not plan on calling any witnesses or offering any evidence.
If that's the case, his sentence should be an easy and quick decision, right? Maybe not. By representing himself at the penalty phase, I actually think Dylann Roof has a better chance than most might believe at avoiding a death sentence for his crimes.
Let me be clear: I am opposed to the death penalty. I know, after representing people in serious criminal cases for over twenty years, that the death penalty is not fairly or uniformly imposed. Statistics show that death as a punishment has been predominately imposed on people of color. And, as the number of exonerations of death row inmates continues to climb through the use of DNA testing, it is a virtual certainty that our judicial system has sentenced people to die for crimes they did not commit. Without 100% certainty, I don't think the state should be in the business of killing people. I think it's both unconstitutional and immoral. To me it's no wonder why Supreme Court Justice Stephen Breyer has joined other judges, lawyers and legal scholars in the belief that capital punishment is cruel and unusual.
But it's hard for me to say it would be cruel to execute Dylann Roof for what he did. Roof has admitted both his crime and his racial motives for committing it. If anyone deserves to die for their crimes, Dylann Roof certainly does.
And that's what will likely happen if Roof is represented by lawyers who follow the standard script in death penalty cases. If Roof's lawyers try to convince the jury to spare his life for the usual reasons -- his youth, possible mental illness, difficult family circumstances - they will lose. Roof committed a senseless, horrible crime and has expressed not even the slightest bit of
How Roof's choice could change the script
But by dismissing his experienced lawyers and deciding to represent himself, Roof is throwing the script out the window. He has no legal training that we know about, no idea about complicated evidence rules and court procedures, and absolutely no credibility with the jury. Most people are now assuming it's over for Roof -- but I'm not so sure.
In a recent case from Georgia, a defendant represented himself in a death penalty trial and lived to tell about it. The defendant in that case admitted to a killing spree during which he murdered a well-known local police officer, tried to kill another police officer, and then killed an innocent bystander. The case was tried in a rural, mostly white county in a red, pro-death penalty state.
Like the Roof case, everything about the Georgia case pointed to a death sentence. But that's not what happened. Like Dylann Roof, the defendant in that case decided to start representing himself during the proceedings. That's when the wheels of justice went off the track.
I followed a good portion of that trial in the press and watched the penalty phase (I personally knew lawyers on both sides and the judge). I saw how the defendant interacted with the court and the jury. I don't know of any other cases (until now) where a defendant has represented himself at the penalty phase, and I am convinced that the Georgia defendant's decision to represent himself literally saved his life -- because the jury got to see him as a real person, not just a defendant sitting in a chair while lawyers spoke for him. The defendant in that case didn't try to deny the crime. Instead, he talked about his various grievances against law enforcement and how he had not been treated fairly by the system. It was all crazy talk, but it was enough to keep this conservative jury from sentencing him to death.
I don't know if the jury decided against death in that case because they thought the defendant was mentally ill or for some other reason. But I do know that the jury's decision not to impose death wasn't based on any doubt about the defendant's guilt. He admitted killing these innocent and well-liked people, and never once expressed any remorse or offered any rational justification for his acts.
Why the jury might not want him to die
Instead, I think the jury rejected a death sentence in that case for the simple reason that the jury actually got to know the defendant on a more personal level than if his lawyers had done all the talking.
Prosecutors are wisely taught to de-humanize criminal defendants at trial. They avoid calling the defendant by name and will instruct their witnesses to do the same. The more "human" a defendant becomes, the more difficult it is for a jury to impose severe punishment, especially the ultimate punishment of death. It's easier to sentence a "Mr. Defendant" to death than someone who has a name, a family, and the messy baggage of an often difficult life.
When a defendant represents himself, it throws the prosecutors off their game. Any experienced prosecutor who has tried a case against a pro se defendant (a defendant who represents himself) will tell you how frustrating and difficult it can be. Maybe the prosecutor over-compensates by beating up on the defendant and exposing his ignorance of the law and court procedures. The judge will have to allow the defendant more leeway than a lawyer would get just to try to insure a fair trial.
As strange as it may sound, a juror or two may also start to see something in the defendant that reminds them of a person they know. Or, the more they see and hear the defendant, they may start thinking about his age, his childhood, his emotional and mental issues, or any number of things we can only speculate about.
There is also a very real chance that the more the jury sees and hears Roof trying to act as his own lawyer, the more they may be inclined to question his mental competence. If one or more of the jurors think he is mentally ill, they may be reluctant to sentence him to die. I think that's especially true if Roof puts up no defense at all or actually asks the jury for a death sentence.
Regardless of what Roof says or does, it's admittedly very difficult to imagine a normal person feeling any empathy towards him at all. But I am certain, based on my experience as a lawyer and my observations of the trial in Georgia, that he has a better chance to live representing himself. There would be little possibility for the jury to empathize with him if a legal team were pleading for his life while he just sat there.
Even if the jury doesn't empathize with him, I think Roof's decision to represent himself at sentencing may still help him avoid a death sentence. The jurors' level of disgust for Roof may grow the more they hear from him, but they may decide that letting Roof die in prison after many years would be a tougher sentence than the death penalty. I can easily see jurors not wanting to allow Roof to become the racist martyr he fantasized about when he committed these crimes.
I'm not saying Dylann Roof should live, or that a death sentence in this case would be a travesty of justice. But don't expect the prosecution to have an easier time achieving their goal just because Roof is representing himself. For better or worse, I think it's now going to be more difficult.
Why is Dylann Roof rejecting his best defense against the death penalty?
JANUARY 2, 2017 —“Also I want [to] state that I am morally opposed to psychology. It is a Jewish invention, and does nothing but invent diseases and tell people they have problems when they don’t.”
The declaration is buried some 20 pages deep in Charleston church shooter Dylann Roof’s handwritten journal, which he kept in his car, scribbling bits about white supremacy and his desires to bring on a race war. Used as a piece of evidence to convict Mr. Roof of a race-based hate crime that involved shooting nine black parishioners during a Bible study meeting at Emanuel African Methodist Episcopal Church in 2015, the journal also holds clues as to why the young man may be acting in ways that could sabotage his chances of escaping the death penalty.
On Tuesday, Roof’s trial will shift into its second stage: the sentencing phase. While Roof allowed his attorneys to represent him during the federal trial, he will act as his own defense during this subsequent punishment proceedings, and said last week he does not intend to present any evidence or call witnesses during the proceedings, but will make an opening statement.
Experts and federal Judge Richard Gergel have repeatedly advised Roof against foregoing his legal counsel in either stage of his federal trial. But for more than a month, Roof has insisted on representing himself in the sentencing phase without explanation, prompting many to wonder if he intends to bar the use of testimony that would draw his mental health status into play or even steer his trial away from a life sentence, seeking the death penalty purposefully.
A jury convicted Roof of 33 charges of federal hate crimes resulting in death, obstruction of religion, and firearms violations on Dec. 15. He will stand trial again later this year for murder, which violates a state statute.
He faces the death penalty in both trials, but had offered to enter a guilty plea if the death penalty was taken off the table. Federal prosecutors refused to cut a deal, opting to bring the harshest sentence against him for the heinous crime.
While the court has deemed Roof competent to stand trial, that low bar requires only that he understand the proceedings and be capable of assisting in his defense, and it’s possible that a defendant like Roof could suffer from serious mental illness left unaddressed by professionals or the court – especially if he doesn't believe such conditions exist. A 2008 Supreme Court ruling allows judges to insist defendants use professional legal representation if they are “competent enough to stand trial but ... suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves,” but hasn’t been invoked.
Roof’s attorneys have argued that he should not be able to represent himself, but aside from calling the move “a bad idea,” Judge Gergel hasn’t moved to bar him from doing so.
Gergel said he would allow Roof to reconsider the decision up until the start of the sentencing phase. Working to defend him during the guilt phase, Roof’s lawyers did not dispute his role in the shootings, but did ask jurors to consider the motivational factors that could have led the 22-year-old to carry out the massacre, noting he might be delusional.
But the legal team was not permitted to use evidence related to Roof’s mental state in the guilt phase, and did not call any witnesses during the deliberations. By taking control of the sentencing phase, he can continue to exclude those details.
If Roof is trying to sabotage his own trial, he wouldn’t be the first to do so. For decades, some inmates have become “volunteers” for execution, either asking for the death penalty at trial or abandoning lengthy, involved appeal efforts and accepting their fate. Some 10 percent of inmates executed over the last 40 years have fallen into that category, accounting for 141 of the past 1,400 executions.
“When you look at people who choose to ask for death at trial, or people who waive their appeals and agree to be executed … some people say this is really state-assisted suicide, and some people say the person should have the autonomy and the choice to make their own decision,” John Blume, a Cornell Law School professor and director of the Death Penalty Project there, previously told The Christian Science Monitor.
But allowing defendants to sway the trial in that direction robs the jury and court of due process, and could leave them with a punishment levied by a biased jury acting on prejudice or passion.
“The jury is supposed to be able to make a reasonable assessment ... not just what he did, but they’re also supposed to hear everything about his life, background, mental impairments, anything traumatic that happened to him, so they can contextualize the offense in light of his entire life history and make an assessment of what punishment he deserves,” Professor Blume added. “When we allow people to waive their appeals, I think that also casts some doubt on the capital punishment system.”
Other legal experts have raised concerns with Roof’s decision and the court’s hands-off approach that allows it, noting that mental health issues could become minimized in the proceedings.
“Whether or not they’re legally insane, there’s certainly something mentally wrong with them,” Peter Greenspun told The New York Times. He’s an attorney who represented John Allen Muhammad, who was convicted of killing more than 10 people in the 2002 Washington area sniper attacks, for parts of a capital murder trial in which Mr. Muhammad temporarily served as his own legal counsel. “To have a person like that make this kind of decision, it really calls into question, from a philosophical point of view, whether that person is in a position to understand their civil liberties.”
Experts say it’s unlikely Roof will be able to convince the jury to spare his life without evidence of mental illness. He could lament about the difficulties of life in federal prison or give anecdotal information about his childhood and life before the crime, but doing so would take a certain nuance and emotional awareness that he might not possess.
“This work is really hard. It’s very technical, and it involves a lot of emotion and a lot of technical skill,” Christopher W. Adams, a Charleston defense attorney who is not involved in the case, told The Washington Post. “For a guy who’s a high school dropout, it’s almost impossible. And I think, for any defendant, no matter how smart, it would be impossible to hit the right emotional tones for the jurors.”