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January 4, 2017
"Why Dylann Roof Has a Right to the Death Penalty" ... OR "Why Dylann Roof Representing Himself Is A Constitutional Tragedy"
The title of this post is the headline of this effective and timely new NBC News commentary authored by Andrew Cohen. Here are excerpts:
Dylann Roof has a constitutional right not to try to spare his own life....
In the end, despite the drama of a closed hearing in the middle of a capital trial, it likely wasn't a close call as a matter of law to allow Roof to continue to represent himself. The standard for "competency" in these circumstances is low, on purpose, to give defendants the chance to control their own fates. Roof has consistently shown he understands the nature of the proceedings against him. The truth is that Roof's decision not to present mitigating evidence seems entirely consistent with his racist beliefs and with his evident antipathy toward psychiatry and psychology. He wrote in the past that he is "morally opposed to psychology," calling it a "Jewish invention."
Roof also appears to share the mentality of other notable murderers who for one reason or another eschewed a defense their lawyers would have chosen for them. For example, Theodore Kaczynski, the Unabomber, rejected his attorneys' plans for an insanity defense on his behalf before accepting a plea deal that spared him the death penalty. Oklahoma City bomber Timothy McVeigh gave up the rest of his appeals following his capital conviction and opted for an expedited execution, which took place at the federal death chamber in Terre Haute, Indiana, on June 11, 2001. The Beltway Sniper, John Allen Muhammad, also sparred with his own lawyers in Virginia before he was convicted and sentenced to death.
For all the hand-wringing over the constitutionality (and morality) of self-representation in a capital case, for all the arguments that every capital defendant should always present every non-frivolous defense at trial, the truth is that Roof has a constitutional right not to present a defense, to choose to increase the likelihood he'll get the death penalty instead of a life sentence without the possibility of parole.
It is not necessarily a sign of mental illness, or mental instability, or mental incompetence, to take responsibility for one's murderous actions rather than blame them, in some fashion, on some sort of mental disease or defect. Some killers, like McVeigh, saw it as one final act of control over their lives. This may be why Roof on Wednesday in his first direct interaction with jurors chose not to beg for his life but rather to tell the panel: "There is nothing wrong with me psychologically."
Nor is it necessarily a sign of mental incompetency to chose to want to die sooner, rather than later, after spending years in solitary confinement in a federal prison — which is where Roof will be headed no matter what his jury decides. If he doesn't want to save himself, in other words, or if he doesn't want the world ever to perceive him as having been mentally ill when he killed those innocent people inside that church, there is nothing his lawyers can do to save him so long as he's judged competent.
Finally, a point that's been under-reported these past few days: Just because Roof won't put on any mitigating evidence doesn't guarantee he'll get the death penalty. All it would take for the jury to preclude a capital sentence for Roof is for one juror to decide that consigning the 22-year-old defendant to 50 or 60 or 70 years in ADX-Florence, the federal prison in Colorado that Roof soon will call home, is a punishment worse than a death penalty. That, too, is not an unreasonable position to take.
UPDATE: Not more than an hour after I posted the Andrew Cohen commentary above, I learned of this new Huffington Post commentary by lawprof Scott Sundby which has the headline I have added to the title of this post. Here are this piece's final two paragraphs:
The Supreme Court has justified the current death penalty regime on the premise that the jury will act as the conscience of the community. Jurors can only carry out this sacred function, however, if they hear all of the evidence, both for and against imposing a death sentence. Jurors often feel betrayed in cases when they later learn that a defense lawyer’s ineffectiveness meant they did not hear compelling evidence about a defendant’s mental illness or abusive childhood. And well they should. The justice system asked them to make a profoundly difficult moral and spiritual decision and then failed to give them the information that they needed to carry out their mandate.
In Roof’s case, the court may believe that its ruling furthers certain values, but it has missed a far more important constitutional principle: a death sentence should never be imposed unless we have complete confidence that the jury’s decision is a reliable and knowing one based on all of the facts. With Dylann Roof representing himself, that outcome is simply impossible. We owe it to the jurors and to ourselves as the society for whom the jurors speak that they hear all about Roof’s life before we ask them whether he should be sentenced to death.
January 4, 2017 at 04:34 PM | Permalink
We are all dying.
Posted by: anon4 | Jan 4, 2017 5:03:34 PM
"The Supreme Court has justified the current death penalty regime on the premise that the jury will act as the conscience of the community. Jurors can only carry out this sacred function, however, if they hear all of the evidence, both for and against imposing a death sentence."
Really? Could this just stop? First of all, and no one here will deny it, the decision about executing a guilty murderer is far less weighty than the guilt/innocence determination of the lowliest of misdemeanors. And good grief--the function is "sacred"? That's just stupid.
The decision to execute a guilty murderer just isn't that big a deal. The murderer deliberately took a life.
Posted by: federalist | Jan 4, 2017 5:35:54 PM
"Jurors can only carry out this sacred function, however, if they hear all of the evidence, both for and against imposing a death sentence."
They have heard all the evidence the defense wants to present.
"Jurors often feel betrayed in cases when they later learn that a defense lawyer’s ineffectiveness meant they did not hear compelling evidence about a defendant’s mental illness or abusive childhood."
That is a fair point but irrelevant because the defendant in this case is not mentally ill. Nor is the defense ineffective. So this jury will have no cause to feel betrayed in this case for those reasons.
"a death sentence should never be imposed unless we have complete confidence that the jury’s decision is a reliable and knowing one based on all of the facts. With Dylann Roof representing himself, that outcome is simply impossible."
Why? Nothing in the article demonstrates this outcome is impossible. In fact, the logical conclusion is the opposite.
Posted by: Daniel | Jan 4, 2017 5:36:23 PM
I agree with the first writer. This Roof person is telling the jury he is not insane. He killed people out of racial hate. Is that insanity? I think not. Otherwise all of the Nuremberg defendants should have been not guilty by reason of insanity. All the Klansmen hanging the guy at the tree are not insane. Partially drunk maybe. They have a belief system that it is their right to go kill all the black people who they do not think are fit to walk the planet. This Roof guy needs to be listened to. The jury would be right to have him killed. There is no evidence he is insane.
Killing others is not insane. Many states have laws which allow a court and a jury to decide to kill a human. This is in violation of the Sixth Commandment. All these jurors may go to church on Sunday and not think they violated the Sixth Commandment if they order Roof killed. They think there is an exception to the Sixth Commandment. It is called: The Y'all Can Exception.
Posted by: Liberty1st | Jan 4, 2017 10:35:54 PM
"They have heard all the evidence the defense wants to present."
That's avoiding the argument, not addressing it. It may very well be that it's the correct thing to do, as the article suggests, to let a defendant choose the death penalty or let him defend his arguments solely on the basis of justification. But the argument you responded to is that the jury should hear the full arguments for and against the death penalty in the case. If the defense doesn't want to present that second argument, it's not the full argument. Think of it like the Supreme Court appointing an Amicus to defend a side of an issue neither side wants to defend. They do that routinely to make sure they reach the correct decision. Like I said, maybe the correct decision isn't the only important criteria here or maybe correctness should only be as the parties see it, but if you're going to reply to an argument, you should address its actual argument.
As for whether Mr. Roof is mentally ill, we have no evidence one way or the other, so I wouldn't be so confident he's not. He himself doesn't believe mental illness exists, which makes it difficult for him to agree to present any evidence, if it exists. He's competent to represent himself, which is far different from being mentally ill.
Posted by: Erik M | Jan 5, 2017 8:58:11 AM
I totally agree with you as every body has their rights and law is equal for everyone whether they politicians, government employee or any VIP, Law is equal for everyone
Posted by: Amanda Ruano | Jan 5, 2017 9:35:06 AM
Dylan Roof's closing argument in the penalty phase:
" I only regret that I have but one life to lose for my for my racist ideology, for my anti-semitism, and for the the Confederacy. Long live slavery, lynching, Auschwitz, and the Second Amendment right to kill whomever I wish, whenever I wish, wherever I wish! Ladies and Gentlemen of the jury, rot in hell!"
Posted by: anon | Jan 5, 2017 11:47:06 AM
"But the argument you responded to is that the jury should hear the full arguments for and against the death penalty in the case."
There is no "full argument" that is separate from the legal argument. In other words, the full argument is legally speaking identical to the legal argument a competent defense freely chooses to make.
"As for whether Mr. Roof is mentally ill, we have no evidence one way or the other."
The judge held a competency hearing. He found Mr. Roof not mentally ill and therefore competent to defend himself. It therefore a malicious lie to say there is no evidence one way or the other when the court heard the evidence and found him competent.
Posted by: Daniel | Jan 5, 2017 12:18:31 PM
"He found Mr. Roof not mentally ill and therefore competent to defend himself."
It is unclear to me how terms are being used by the different sides here. A person can be competent to defend himself and have some sort of mental illness. There is a relatively low bar here -- he has to be not mentally ill ENOUGH to be able to do it. Also, I'm loathe to toss around "malicious" -- if the person is mistaken, fine -- many are, including in confused ways that are bothersome. But, "malicious" is step further.
Anyway, yes, Roof has a right to defend himself (at least under current law) and to choose a defense approach that invites the death penalty. He could stand mute after all while the state brings forth its case. I'm wary of him representing himself because there is more to it than this. The state prosecutes and here aims to execute him. Two competent advocates that understand the laws in place protects the system in place there. If the state is going to kill someone (and a jury hand them the authority to do so), I rather a better advocate than Mr. Roof. The update references concerns me as well.
Posted by: Joe | Jan 5, 2017 1:22:18 PM
A 16 year old daughter testified, she misses her murdered mother, would want to hug her just one more time. The jury wiped tears away.
Posted by: David Behar | Jan 6, 2017 12:52:38 AM