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Nov 29 2016

South Carolina Church Shooting Case Raises Question of Whether a Defendant Should Be Allowed to Represent Himself in a Death Penalty Case?

Against the advice of a federal judge, accused South Carolina church shooter Dylann Storm Roof will represent himself in a federal death penalty trial that began Monday. Roof filed a motion under seal Sunday to represent himself having also been found competent to stand trial. Federal District Court Judge Richard Gergel granted the motion moments before jury selection began. The case stems from the June 2015 shooting deaths of nine black worshipers at Emanuel African Methodist Episcopal Church in Charleston, South Carolina. Due to Root’s affirmed white supremacist views and his brandishing of the Confederate flag in many of the images he posted on social media, Governor Nikki Haley agreed to take down the Confederate flag that had until then always flown above the State Capitol grounds.

Once he was found competent to stand trial, Roof had to go through a brief questioning by the court to assess if he was sufficiently competent to act as his own counsel. Most defendants who make this decision usually make a stop at the prison law library first to bone up on a few terms and issues that they may be questioned about. Newspaper accounts on the case say the inquiry lasted less than ten minutes. But the Supreme Court in the landmark decision of Faretta v. California held that a defendant has an absolute Constitutional right to represent himself in a criminal proceeding. And then in Godinez v. Moran the Supreme Court clarified that the question is if the defendant is competent to waive his right to counsel not whether the defendant is competent enough to defend himself. And if you look at the Moran case you would see how low the bar of that competency is. Justice Harry Blackmun pointed that out in his dissent in the Moran decision (he also dissented from the Faretta case:

Just a few months after he attempted to commit suicide, Moran essentially volunteered himself for execution: He sought to waive the right to counsel, to plead guilty to capital murder, and to prevent the presentation of any mitigating evidence on his behalf. The psychiatrists’ reports supplied one explanation for Moran’s self-destructive behavior: his deep depression. And Moran’s own testimony suggested another: the fact that he was being administered simultaneously four different prescription medications. To try, convict, and punish one so helpless to defend himself contravenes fundamental principles of fairness and impugns the integrity of our criminal justice system.

Fool for a client?

Fool for a client?

Here, Roof faces a slew of forensic evidence to be brought against him and is facing the death penalty for one of the most notorious crimes in recent memory. The judge cannot help him in making his decision, only instruct him as to certain rights which only a defendant can waive (right to trial, right to testify, for example). Roof also was given David Bruck (who had originally been assigned to represent him) as standby counsel to sit at counsel table with him through the process to provide advice. Bruck is a highly-experienced well-regarded death penalty practitioner who had to move aside to the second chair at counsel table to allow the 23 year old, 9th grade dropout to slide into first chair and act as sole trial counsel.

The right of a party to a legal action to represent his or her own cause has long been recognized in the United States, and even predates the ratification of the Constitution. The Supreme Court noted that “[i]n the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that ‘in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel.'” Why was this so important to the Founding Fathers? The framers of the Declaration of Independence and the Constitution highly valued the individual’s “inalienable rights” and wanted to assure that those rights were essentially supreme to all statutes and laws that may be enacted afterwards. Thomas Jefferson had distinguished between the rights of what he called “personal competency”(such as freedom of opinion and right to self-determination) and property rights; while the former were inviolable, the latter could be modified as times and circumstances required. They were also mindful that most of them and their class were well-educated and perhaps more capable than any lawyer the government might force them to use and whom they may not trust to have their best interests at heart. They were worried that in political trials, they could be stifled and kept from testifying or pleading a particular cause. Those are all powerful reasons in the context of early 18th Century America, but most of them do not hold true today when applied to the average criminal defendant. Though it is important to note that it is in political or high-profile cases that you most regularly now see defendants who want to represent themselves in an effort to “make a statement.”

And I think that may be what’s happening here. Here in NY, a similar issue arose when Colin Ferguson decide to represent himself in the notorious shooting on the Long Island Railroad in 1993. Even though William Kunstler and Ron Kuby – two highly regarded high-profile criminal defense attorneys – had agreed to represent him for free, once they announced that they were mounting an insanity defense, Ferguson fired them and represented himself. Ferguson wanted to present a defense that he was manipulated by a third party who had obtained control of his brain. He wanted to prove that this control was the reason for all of his recent paranoia and delusions. Of course he was quickly convicted. Here, however, Roof’s position may be closer to what the Founding Fathers intended with the right to self-representation. While Bruck was Roof’s lawyer, he filed a motion for a psychiatric examination of his client as he prepared to mount a likely insanity/emotional disturbance defense. The psych exam came out that Roof was competent to stand trial and then Roof filed his motion to represent himself. Roof may not have wanted to plead a psych defense because he may very well see himself as a martyr for a cause and didn’t want his sacrifice for his beliefs to go down as those of a madman but rather as those of a committed white supremacist. While that cause is repugnant to the vast majority of Americans, that right is his and falls into the category of Jefferson’s “personal competency” rights.

While I believe the right to self-representation should remain intact, three safeguards can be put into place to better protect the accused. First, I think courts need to strike a balance and allow self-represented defendants to have attorneys handle certain cross-examinations, particularly of expert witnesses or police forensic specialists. It need not be all or nothing. A defendant should be able to choose to represent himself and yet get more than mere guidance when it comes to these types of witnesses. If the defendant so chooses, he should be able to have an experienced defense lawyer cross-examine these highly skilled witnesses who testify about complicated, scientific matters. Secondly, the court should do more than just a cursory examination of whether a defendant is competent enough to waive his right to counsel. The inquiry should try to assess if the defendant has at least a rudimentary knowledge of the workings of the criminal justice system. They do that in NY – asking for example if the defendant knows what a prosecutor does and what a judge does – but in most states these issues are not addressed. Finally, the court should directly address the defendant and advise him of the various rights he has – especially the right to remain silent, the presumption of innocence, the right to confront witnesses and the right to use court process to secure documents and witnesses to court. These steps will still honor the Founders’ belief in self-determination while not making a total mockery of the judicial system and while also doing more to ensure that the accused gets a fair trial.

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2 comments

  1. Gloria Wolk

    He must know he faces the death penalty in federal court as well as South Carolina (and he can only be executed once). It’s unlikely he knows anything else about law. I suspect he’ll try to use self-representation as a platform to spew his ideas.

  2. Oscar Michelen

    I think thats his plan too

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