FOURTH CIRCUIT AFFIRMS DEATH SENTENCE IN SC SHOOTING
(Posted August 25, 2021) A panel of three circuit judges sitting by designation has affirmed the convictions and death sentences of Dylann Roof, who murdered nine clergymembers and parishioners in Charleston, South Carolina in June 2015. The slip opinion comprises 149 pages, so it will take me some time to finish reading it and posting commentary. I’ll do that over the course of the afternoon.
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The panel that considered Roof’s appeal comprised three judges designate from other circuits, as all members of the Fourth Circuit had recused themselves. The panel consisted of judges from the Third, Sixth, and Eighth Circuits.
This raises a troublesome procedural issue: If Roof wishes to seek en banc rehearing of today’s decision, can the Fourth Circuit accommodate him? I’ve never seen an en banc proceeding where all judges on the court are recused. In theory, fifteen judges designate – including the three who heard this case as a panel – could be appointed; but that’s a tremendously unwieldy prospect.
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The court first considers Roof’s challenge to the district court’s ruling that he was competent to stand trial. Both sides offered expert testimony, and the court eventually agreed with the prosecution’s principal expert that Roof was capable of understanding the proceedings and participating in his defense.
Interestingly, Roof fought his appointed trial team, including a highly qualified capital defender, on whether to challenge his mental state. He told his lawyers that he didn’t want his acts attributed to autism, as he meant them as a political statement. This is what he told the district court: “I get that. But the problem is … if the price is that people think I’m autistic, then it’s not worth it.” The context makes it clear that the it in the phrase “it’s not worth it” represents the murders. He elaborated, “if people think I have autism, … [i]t discredits the reason why I did the crime.”
Roof’s IQ scores indicate that he possessed above-average intelligence. The district court allowed him to testify at the competency hearing, and considered his statements in finding him competent. On appeal, Roof argued that the evidence at that stage didn’t establish that he had both rational and cognitive abilities. The Fourth Circuit panel turns that argument aside with this memorable observation: “The [district] court did not fail to consider the possibility that a cognitively capable person could act irrationally; instead, it reasonably relied on expert testimony that Roof was both cognitively capable and acting in a manner that was logically consistent, even if despicable.”
The prosecution of this case included two competency hearings – one in November 2017 before trial, and the second during the trial, when Roof sought to represent himself. For the second hearing, the district court insisted upon hearing about only matters developing after the first hearing, perceiving that the earlier competency ruling was “the law of the case.” In a technical sense, the district judge was mistaken in using this expression, because that doctrine applies to findings of law, not fact. But the Fourth Circuit panel concludes that the court acted within its discretion in so limiting the second-hearing evidence.
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The second major category of appellate issues relates to that request by Roof to represent himself. There might conceivably be a circumstance in which a decision by a criminal defendant to represent himself is wise, but the limits of my own imagination leave me unable to conceive of such a situation, especially when, as here, the lawyer is highly capable. Nevertheless, Roof perceived that his lawyers were trying to sabotage his case, so he sought to take the helm.
The district court allowed it, directing his appointed counsel to serve in a standby capacity. Roof then conducted his own voir dire examination, and apparently did a capable job for a layman. He later agreed to allow his lawyers to resume control of his case during the guilt phase, expressly demanding to self-represent during the penalty phase. The court did as he asked.
On appeal, Roof insists that it was error to allow this procedure. He wished to prevent his lawyers from adducing mental-health evidence, and based on the court’s admonitions to him, perceived that the only way to do that was to assume control of his own defense. Relying on the recent decision in McCoy v. Louisiana, he argued that he, the client, had a right to determine the objective of his defense.
The Fourth Circuit rejects this contention, holding that the avoidance of mental-health evidence isn’t an “objective” but a tactic, and that’s a decision for the lawyers, not the client.
Roof next argued that the district court should have refused his request to represent himself at the sentencing phase. He contends that this phase is equivalent to an appeal (where you don’t have the right to self-represent under federal law) and that the Sixth Amendment assured him the right of effective assistance. The appellate panel has little difficulty in turning these arguments aside.
The panel next considers the argument that the Eighth Amendment requires consideration of mitigating evidence, so the district court erred in allowing Roof, serving as his own lawyer, to “do nothing.” This argument fails on the facts; as today’s opinion points out, Roof did plenty in the sentencing phase, including submitting “nine mitigating factors to the jury, which found six in his favor.” The court accordingly finds, as a matter of first impression in this circuit, that the Eighth Amendment provision cannot overcome the Sixth Amendment right to counsel, which includes the right of self-representation.
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The appellate court next turns to the death sentence itself. The district court allowed the prosecution to introduce a letter that Roof wrote from prison with inflammatory language. Here; judge for yourself: “I realized it was worth it. … I did what I thought could make the biggest wave, and now the fate of our race is in the hands of our brothers to continue to live freely.” Elsewhere he expressed his hope that a race war would emerge. The prosecution called this letter “the jailhouse manifesto” and urged the jury to find future dangerousness from it, as Roof could continue to fan the flames of a hoped-for race war even from prison.
The jury seized on this, sending two questions to the court from the jury room. Both addressed whether the ability to write from prison would constitute future dangerousness (as contrasted with, say physical violence directed toward other inmates). The court declined to answer these questions, instructing the jury to use its common sense in interpreting the aggravating and mitigating factors listed in the instructions. Thus instructed, the jury returned guilty verdicts and recommended sentences of death.
Roof appealed several sentencing-phase rulings. First, he argued that the district court improperly refused two mitigating-factor instructions. These would have invited the jury to find that Roof would be in grave danger during a long prison term, and might have to serve long stretches in solitary confinement. The court found those to be too speculative: “It is inappropriate to ask the jury to imagine conditions at some imaginary prison.”
These factors don’t relate to Roof’s character, the Fourth Circuit rules today. It agrees with the Seventh Circuit that the harshness of prison conditions isn’t an appropriate mitigating factor. It also rejects a challenge to the district judge’s decision to admonish the jury to use its common sense instead of defining categories of future dangerousness. Today’s panel finds that the curt properly refused to “pick sides” in the parties’ dispute over these factors.
Next, the court considers Roof’s objections to items of evidence. He argued that a witness, one of the survivors of the mass shooting, tainted the trial when, at the end of a long answer in the guilt phase, she called Roof “Evil. Evil as can be.” But Roof didn’t object at the time of the testimony; only doing so after the court had taken a ten-minute recess. The lawyers responded that the witness was crying and “it seemed inappropriate to respond.”
The Fourth Circuit rules today that, tears or no tears, the contemporaneous-objection rule (FRE 103) requires a timely objection. By waiting to object later, the defense consigned this issue to plain-error review. Unsurprisingly, the panel finds no plain error.
Roof argued that the death penalty was cruel and unusual when applied to him because of his age and mental capacity. As for age, he cites the recent line of cases that ban the imposition of death sentences upon defendants who were juveniles at the time of the crimes. But Roof was 21 on the night of these murders. He asked the appellate court to apply the juvenile-sentencing holdings expansively, but today the fourth Circuit declines to draw the line at a point where the Supreme Court did not.
As for mental incapacity, the panel today need only cite Roof’s IQ of 125 to note that he hardly suffers from an intellectual disability.
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The Fourth Circuit then rejects facial and as-applied challenges to some of the federal statutes under which he was prosecuted – those criminalizing obstruction with religious observances and those describing hate crimes. For the latter, the court cites what might seem at first glance to be an unusual authority: the Thirteenth Amendment. That, as even casual students of the law will know, prohibits slavery. But in 1968, SCOTUS ruled that it was a sufficient constitutional basis for law prohibiting discrimination in housing. That’s because the second section of that amendment gave Congress the “power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.” The court today rules that if housing discrimination is within that ambit, then so are hate crimes.
Roof’s lawyers mount what looks like a plausible challenge to this approach. While there are no decisions limiting Congress’s power to enact appropriate legislation to carry out the Thirteenth Amendment, there is such caselaw for the next two amendments, both of which contain comparable enforcement-power sections. The most famous of these rulings is Shelby County v. Holder, in which the Supreme Court struck down Congress’s attempt to limit racial discrimination in voting issues. To this, the panel today has a simple riposte: We can’t extend these exceptions to a different amendment. Only SCOTUS can do that.
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Roof’s lawyers aren’t through. They argued that the federal government improperly certified these crimes for federal prosecution, when the cases properly belonged in South Carolina state courts. The appellate panel assumed without deciding that the issue is justiciable and proceeded to the merits.
The court rules today that the federal government had a legitimate basis to certify the case, for two reasons. First, South Carolina doesn’t have a hate-crimes law, so that couldn’t be prosecuted outside federal court. Second, as the district court observed, this was “a mass murder at a historic African-American church for the avowed purpose of reestablishing the white supremacy that was the foremost badge of slavery in America.” That, the panel finds today, makes it entirely appropriate for federal prosecutors to take the wheel.
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There’s one more set of substantive rulings, but they won’t be surprising. The court rules that both of the primary offenses, prosecuted under the Hate Crimes Act and that laws forbidding interference with religious observations, are violent crimes that justify companion firearms convictions. That’s because the sections under which the government prosecuted Roof provide that if the offense results in death, the maximum penalty is life in prison. That makes these crimes of violence, and that, in turn, triggers the firearm charges.
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Today’s opinion, at 149 pages, is one of the longest single opinions that I’ve analyzed for this website, now in its 17th year. The longest one that I can recall with certainty is Muhammad v. Commonwealth, the DC sniper appeal decided in April 2005, when this site was barely three months old. The slip opinion was 139 pages. Back then, I wrote that “I’ve read the whole thing, so you won’t have to.”
I recall well the extraordinary pain that reading the Muhammad decision brought, as the Supreme Court of Virginia recites, in dozens of pages, Muhammad’s long, malevolent campaign of terror against the citizens of Virginia.
Today’s opinion recalls the coldness of that earlier case. Roof made a conscious decision to kill other human beings, selected his target with care, and publicly declared himself a righteous warrior in a hoped-for race war before setting out for the church. It doesn’t carry quite the prolonged agony and sustained outrage of reading the Muhammad opinion – not because Roof’s murders were any less horrific, but because the court’s description of the undisputed crimes is astonishingly short – just two paragraphs, contained on a single page. The rest of the opinion is about criminal procedure.
But that visceral sense cannot diminish the enormity of Roof’s savage actions here. Because the appellate panel crafted a suitable summary of the case on the last page of the opinion, I’ll set that conclusion out here, in full.
Dylann Roof murdered African Americans at their church, during their Bible-study and worship. They had welcomed him. He slaughtered them. He did so with the express intent of terrorizing not just his immediate victims at the historically important Mother Emanuel Church, but as many similar people as would hear of the mass murder. He used the internet to plan his attack and, using his crimes as a catalyst, intended to foment racial division and strife across America. He wanted the widest possible publicity for his atrocities, and, to that end, he purposefully left one person alive in the church “to tell the story.” (J.A. at 5017.) When apprehended, he frankly confessed, with barely a hint of remorse.
No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose. We have reached that conclusion not as a product of emotion but through a thorough analytical process, which we have endeavored to detail here. In this, we have followed the example of the trial judge, who managed this difficult case with skill and compassion for all concerned, including Roof himself. For the reasons given, we will affirm.