In Roof’s self-defense, a constitutional quandary

DYLANN ROOF: CHARLESTON CHURCH SHOOTER CONVICTEDSurvivor didn’t believe Roof ‘could be so evil’ | 1:05

An attorney for the families of the Charleston, SC church shooting victims says survivor Felicia Sanders didn’t believe gunman Dylann Roof ‘could be so evil’ until she saw his taped confession. Roof was convicted of all 33 counts on Thursday. (Dec. 16) AP

CHARLESTON, S.C. – Absent a change of mind by the judge overseeing the trial of Charleston church shooter Dylann Roof, a story only half-told is expected to unfold before jurors as they weigh a sentence of life in prison against execution.

On one side, prosecutors have deftly combined compelling witness testimony with an avalanche of evidence to present a heartrending account of the shootings at Emanuel African Methodist Episcopal Church and Roof’s planning that led to the deaths of nine black congregants.

Jurors delivered guilty verdicts on all 33 federal counts inside of two hours, and as the sentencing phase resumes Tuesday, the government’s well-crafted case will almost certainly continue.

For Roof counsel, a life’s work fighting the death penalty

From Roof, who will serve as his own attorney, jurors will hear near silence. The 22-year-old plans to offer only an opening statement.

In that dichotomy, critics of a judicial system that allows a self-represented defendant to forgo a defense see a proceeding that feels more like a march to a death sentence than the constitutional right to a fair trial.

The position is troubling for Roof’s attorneys, who were granted a request for a hearing on Roof’s competence, scheduled for Monday. Afterward, U.S. District Court Judge Richard Gergel will determine if the defendant retains the right to serve as his own lawyer.

The accused Charleston church shooter had a troubled past even before he was arrested for killing nine people at Emanuel AME Church in June 2015. USA TODAY NETWORK

Roof’s lead capital defender, David Bruck, now relegated to the advisory role of standby counsel, believes Roof suffers from an undisclosed mental defect, according to courtroom documents and statements. Roof, in assuming his own defense and decision-making powers, is expected to block jurors from hearing any such evidence.
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“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.

That frustration is familiar to Kris Poppe, a retired Army lieutenant colonel who in 2013 served as standby counsel for the Army psychiatrist convicted in the shooting deaths of 13 soldiers at Fort Hood, Texas.

As Roof plans to do, Maj. Nidal Hasan served as his own attorney and offered no mitigating evidence that might persuade a jury to vote for a life sentence rather than death. His attorneys told the court they believed Hasan was working in concert with prosecutors as they sought the death penalty.

A military jury sentenced Hasan to execution.

“If the prosecution is presenting a case and that’s the only one that’s being presented, there’s only a case for death and there’s no case for life being presented,” said Poppe, now a civilian attorney in Fayetteville, North Carolina. “I think our society and our Constitution demands that the decision-makers, the fact-finders, the sentencing authority have full facts in front of them to make that decision. I don’t think there’s any more important decision a court can make and if they only get a case for death, there is no constitutional outcome.”

The U.S. Supreme Court has taken a ‘death is different’ stance and in a landmark 1972 case struck down executions, a decision that forced states to revisit their statutes as they sought to reinstate the punishment. Four years later, another ruling by the high court established broad guidelines in death penalty statues, lifting the de facto moratorium on capital punishment.

The justices have also held that criminal defendants deemed competent have a constitutional right to serve as their own attorneys, but just how that aligns with the withholding of evidence from a jury is an unsettled question.

Outside the presence of the jury, Poppe offered mitigating evidence to the court, though the judge ruled the panel would not hear that case. He hopes an appellate court orders a new trial in the Hasan case, one that would allow jurors to hear a defense, but barring that, believes the Supreme Court will have to weigh in eventually.

“To place the right to represent themselves on a pedestal such that that case for life is never presented, I think the Supreme Court is going to have to decide if that fits our constitutional framework,” he said. “The full story of what happened on Nov. 5, 2009, at Fort Hood, Texas has not been told and there has not been an examination of Nidal Hasan and what led to him doing what he did.”

In a chilling confession to police, the accused shooter laughs as he details walking into a historically black church on a mission to kill. The video was played to jurors in Roof’s trial. USA TODAY NETWORK

The unknown Roof

Roof’s planning and attack on Mother Emanuel has been documented in stark detail in the trial’s guilt phase, and the account offered by prosecutors was not disputed by defense attorneys.

But where prosecutors have argued that Roof was driven by racism and hatred toward African Americans, Bruck in opening and closing statements tried to signal to the jury that Roof suffers from an underlying mental condition.

He noted that Roof in a video recorded confession to FBI agents repeatedly said “he had to do it,” an explanation that Bruck characterized as incomplete, irrational and charged with mad energy.

The legendary capital defender hinted that something is fundamentally wrong with Roof’s brain, but could not elaborate on mental health issues, typically addressed in the sentencing phase of a trial.

“You were surely looking for remorse and you didn’t see very much, and I’ll be the first to acknowledge that,” Bruck told jurors of a client who appeared disengaged throughout the proceedings. “But if you have to do something, remorse is not a logical emotion. You don’t feel remorseful for what you think you had to do.”

Remorse is generally accepted as a mitigating factor in capital cases, as is an impaired mental capacity, but with Roof leading his own defense, those issues are expected to go unexplored.

While mitigators do not guarantee a lesser sentence for a defendant, jurors weigh those circumstances against aggravators presented by prosecutors as the decide between possible penalties.

The government’s attorneys already have laid before jurors a host of aggravating factors, including the heinousness of the crime, the substantial planning prior to the shooting, as well as the vulnerability of the victims. Among them was Susie Jackson, an 87-year-old grandmother who walked with a cane and an 11-year-old girl who survived the attack.

While Roof’s crimes have been chronicled in detail, much of his personal life remains unknown. A high school dropout with a GED diploma, he appears to have been a loner and was self-radicalized in his anger toward African Americans after reading internet postings.

His parents, including the mother he lived with in Eastover, S.C., have made no public statements about Roof.

Twice he was confronted by Columbia police after odd encounters at a mall, though the incidents did not lead to criminal convictions.

Chris Spears, manager of the Shoe Department store, told the Los Angeles Times that in a February 2015 incident, an employee there described Roof, clad in all-black, as creepy and behaving as though he were on drugs.

“He was asking her all kinds of personal questions, wanting to know work schedules. She was busy working and she felt uncomfortable, so she called security and they came and got him,” Spears told the newspaper.

He was arrested for illegal possession of Suboxone, a drug typically used to treat opiate addiction and two months later he was again detained at the same mall after violating a one-year ban.

In court, his defense team has pointed out small oddities about Roof — that he was arrested wearing sweatpants under jeans on a hot June day, that his car held T-shirts with the bottoms cut off, that in a candid confession to the FBI, he believed the victims numbered five rather than nine — while in opening statements, Bruck urged jurors to disregard Roof’s demeanor.

Should they draw conclusions from a rigid, frozen posture or a smile at an inappropriate moment, they might jump to wrong conclusions, he said.

On Thursday, the jury considering the federal capital case against their accused killer, Dylann Roof, saw photos from inside Emanuel’s fellowship hall and of the church members who died in that room.

‘Early in the game’

Roof underwent a similar competency hearing in November, one in which Gergel ruled he could self-represent, but later called Roof’s decision “strategically unwise.”

A mental condition that might have caused a defendant to commit a crime does not preclude him from representing himself, said Jona Goldschmidt, a criminal justice professor whose research includes defendants who act as their own attorneys.

“Unless he has some mental illness that would prevent him from presenting his own defense, he is entitled to present whatever defense he wants, or no defense,” said Goldschmidt, of Loyola University in Chicago.

He added though, that because there have been few capital defendants who have self-represented, “we’re fairly early in the game on this whole issue.”

“There is a view that jury is entitled to all information at mitigation,” he said. “It may be that this trial judge or other trial judges in similar situations will rule and then it will go to the Supreme Court. They may rule because ‘death is different,’ we’re going to give the jury everything it needs as a matter not only of fair trial, but what could also be cruel and unusual punishment.”

Arguments against the death penalty often hinge on it being a violation of the Eight Amendment, which forbids the state from engaging in cruel and unusual punishment.

Polly Sheppard testified as the last witness offered by the prosecution in the Dylann Roof trial. Listen to part of her chilling 911 call that played in the courtroom for the jury. USA TODAY NETWORK

A month ago, Roof’s defense team invoked that amendment in a court filing, arguing that he should not be able to self-represent and waive mitigation in a capital trial. Should jurors sentence Roof to death, the document could serve as a basis for an appeal.

If information is withheld from jurors, the community cannot have confidence in a verdict, the document argues.

It will also likely be an issue addressed on appeal, said Mark Rabil, director of the Innocence and Justice Clinic at Wake Forest University, who believes Roof suffers from a mental defect.

“It’s wrong for the judge to allow Roof with his obvious mental disabilities to attempt to represent himself in the death penalty phase of a case, which is the most difficult case any lawyer can handle, much less a mentally disabled person. I can’t imagine this will be held up on appeal,” Rabil said. “It’s traumatic on everyone involved in the process, particularly the surviving families. I just think that is a total and complete injustice to allow this to occur.”

Follow Tonya Maxwell on Twitter: @factsbymax

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