Outside the Beltway

Dylann Roof Will Represent Himself In Charleston Church Shooting Trial

He has a fool for a client.

Doug Mataconis · Monday, November 28, 2016 · 12 comments

Dylann Roof will represent himself in the Federal Court trial related to the charges against him resulting from last year’s shootings at a church in Charleston, South Carolina:

A federal judge ruled on Monday that Dylann S. Roof, who was charged in the massacre of nine black worshipers at a Charleston, S.C., church in 2015, can represent himself in his federal death-penalty trial.

The judge, Richard M. Gergel of Federal District Court in Charleston, called the request by Mr. Roof, 22, “strategically unwise,” but allowed him to have a lawyer present as backup.

“I do find defendant has the personal capacity to self-representation,” Judge Gergel said, according to The Post & Courier. He added, “It is a decision you have the right to make.”

Mr. Roof had been represented by David I. Bruck, a noted death-penalty lawyer, who slid over from the lead chair after the judge’s decision. The ruling came days after Mr. Roof was found competent to stand trial.

The Justice Department is seeking the death penalty for Mr. Roof, a self-described white supremacist who is accused of the fatal shootings on June 17, 2015, at Emanuel African Methodist Episcopal Church.

As a general rule, any person who is ruled competent to stand trial has a right to refuse the representation of counsel that has been appointed on their behalf and to either choose different attorneys or choose to represent themselves. As a general rule, though, the fact that criminal trials in general, and death penalty cases in particular, are so complicated that the average layperson cannot sufficiently navigate their way through the court system. This would seem to be especially true in a case where they are on trial for their lives and are going up against the United States Attorney’s Office, which is typically staffed by a phalanx of highly-skilled attorneys well-versed in Federal Criminal Law and Procedure, and who are available to assist the team that is handling the trial at a moments notice. In Faretta v. California 422 U.S. 806 (1975), the Supreme Court ruled quite emphatically that the Sixth Amendment clearly means that people accused of crimes have the right to refuse representation just as much as they have a right to be represented. Therefore, once Roof was found competent to stand trial on Friday, it was inevitable that the Federal Judge would grant his motion for self-representation. To do otherwise would have been reversible error on the trial court’s part. At the same time, and especially in cases such as this where the death penalty is on the table, the Court will often appoint “stand-by counsel” to provide assistance to the Defendant in much the same way a paralegal would assist an attorney. Additionally, if it is determined at any point during the trial it is determined that the Defendant is unable or not competent to represent themselves, the Court has the option of rescinding its previous order and requiring the Defendant to proceed with counsel, which could either be the stand-by counsel appointed by the Court or another attorney that the Defendant chooses to employ at their own expense.

A common question that comes up in cases like this is whether a Defendant may use the fact that they represented themselves and made errors during the trial that arguably amount to ineffective assistance of counsel in any appeal of a guilty verdict. The short answer to that question is no. In both Ferretta and other cases, the Supreme Court, along with numerous lower courts.  ruled that one price the Defendant pays for choosing to represent themselves is that they will be assumed to be as aware of the relevant laws and procedures as any licensed attorney and that they will be held to the same standards of conduct as such an attorney. For this reason, a Judge who allows a Defendant to represent themselves in a case that would otherwise require counsel will often give the Defendant an extensive speech on the record explaining the consequences of waiving the right of representation, part of which includes waiving the right to raise ‘ineffective assistance’ on appeal. This is similar to the rules that establish that an attorney representing a criminal defendant cannot raise this issue on appeal if it appears from the record that the trial attorney was deliberately acting in a manner that would create an ‘ineffective assistance’ defense on appeal, nor can a self-represented defendant raise as an error on appeal the fact that the Court granted his request for self-representation unless it appears from the record that the request should not have been granted because the Defendant was not competent at the time of trial.

Most likely, Roof is seeking to represent himself because he wishes to use the trial as a vehicle to make some sort of political statement. This is not uncommon for pro se Defendants, but it is also not likely to  succeed. Unless a Judge completely loses control of a trial, any effort by a Defendant to use a trial this as a political platform is likely to fail miserably. This will make things difficult, no doubt, for the survivors of the attack and the victim’s families, who will have to maintain their own calmness if and when he cross-examines them either at trial or during the sentencing phase of this case. Nonetheless, this is the price that must be paid for respecting the Defendant’s rights under the Constitution.