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July 25, 2015

Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers

Download (7)One aspect of the modern death penalty that always irks me is the all-too-common reality that some of the very worst-of-the-worst murderers often get the help of some of the very best-of-the-best defense lawyers (and almost always at taxpayer expense).  As I write this post, there are literally tens of thousands of federal drug prisoners desparate to get the help of any lawyer to help them prepare a decent clemency petition.  But, as this local article highlights, white supremacist mass murderer Dylann Roof now is going to be represented in federal court by one of the very best defense lawyer in nation:  

Legendary death penalty lawyer David Bruck, who has more than 35 years of experience in South Carolina and around the nation representing people accused of heinous killings, has been appointed lead defense lawyer for alleged white supremacist killer Dylann Roof, according to federal court records....

Roof, 21, of the Columbia area, is charged with killing nine African-Americans in June during a prayer meeting at a historic downtown Charleston church, “Mother” Emanuel AME. Evidence against him includes a purported confession, an alleged online manifesto in which he announced his intention to start a race war by going to Charleston and Internet photos on his alleged website of him and his gun.

A federal grand jury in Columbia indicted Roof on Wednesday on 12 counts of committing a hate crime against black victims, 12 counts of obstructing the exercise of religion and nine counts of the use of a firearm to commit murder....

Bruck, 66, has the kind of experience Roof needs, lawyers familiar with death penalty cases said Thursday. “He’s the total package, versed in the law and quick on his feet at trial. He never screams or yells — he’s a methodical, intentional kind of guy,” recalled Columbia attorney Dick Harpootlian, who as 5th Circuit prosecutor won a death penalty case over Bruck in a 1990s trial, only to lose to Bruck in oral arguments before the U.S. Supreme Court in the same case.

Columbia defense attorney Jack Swerling, who has tried a dozen death penalty cases, said he has consulted Bruck on most of them.  “He’s my go-to guy,” said Swerling, known as one of South Carolina’s best criminal defense lawyers.  “He’s formidable, brilliant, and he is a passionate advocate against the death penalty.  He truly believes it’s not appropriate in any case.  That is his heart and soul.”

The Canadian-born Bruck, who graduated from the University of South Carolina law school and got his start defending S.C. death penalty cases in the early 1980s, helped win a life sentence in the nationally publicized 1995 case of child killer Susan Smith, now in state prison for drowning her children in a Union County lake.  He recently helped defend Dzhokhar Tsarnaev, the Boston Marathon bomber who was sentenced to death in May....

But his record shows that few of his clients are acquitted by juries.  Instead, Bruck concentrates on either getting life sentences during the punishment phase of a capital case, or getting a death penalty overturned on appeal.  Over the years, Bruck has been involved in hundreds of death penalty cases across the country, either as a lawyer or adviser.

Since 2004, Bruck has been director of Washington & Lee University’s death penalty defense clinic, the Virginia Capital Case Clearinghouse.  Before that, Bruck practiced criminal law in South Carolina for 28 years, specializing in death penalty cases....

Most of the crimes Roof has been charged with in both state and federal arenas are death penalty eligible. However, a formal decision to seek the death penalty has not been announced by either state or federal prosecutors.  Death penalty cases are so complex that federal judges appoint defense lawyers knowledgeable in capital punishment law and trials well before a case has been formally declared a death penalty case.

“Judges don’t want to wait on the Justice Department,” said Columbia attorney Johnny Gasser who has prosecuted the only three federal death penalty cases in South Carolina’s modern era. “Judges want to go ahead ... to ensure that the accused is appointed the best legal representation possible.”

Of course, as critics of modern death penalty are right to highlight, not every capital defendant gets great (or even competent) defense representation. In fact, the sad reality in most state capital prosecutions is that poor representation has historically been much more common than top-flight lawyering. But, as we have now seen due to the mass murders committed by Dzhokhar Tsarnaev and Dylann Roof, when federal prosecutors get involved in a capital case, it is far more likely for some of the best lawyers in the country to be involved on the defense side. (This reality is one reason I quite seriously contend that capital punishment should be the (almost) exclusive province of federal prosecutors, and also a reason I half-jokingly suggest murderers should be sure to kill in a way that garners federal attention and triggers federal jurisdiction.)

July 25, 2015 at 08:30 AM | Permalink


In my state (and my state is not unusual), people facing the death penalty get the best public defenders. Even normal indigent defendants get better representation from a supposedly over-worked public defender system than most people could afford to get from a private attorney.

My hunch is that if you look at the "incompetent" representation that capital defendants are getting, it is still much better than what they could get if they were having to pay for it. After all what percentage of people have $30,000 or more in spare cash to pay for representation. Figuring that most capital trials take at least two weeks (80 hours), it doesn't take too long for the legal bills to add up to an amount that exceeds the average annual income for most families. Unfortunately, the test for competent representation has gotten divorced from the understanding that money and time are both limited and must be prioritized. When the standard of competence is what would the top 0.01% pay for if they were facing this charge, the amount of money that gets spent on the death penalty is going to be very high.

Posted by: tmm | Jul 25, 2015 9:46:31 AM

Good, so when SC goes to execute the 8th white guy with a black murder victim, there won't be any ability to make any BS ineffective rep arguments.

Posted by: federalist | Jul 25, 2015 10:22:30 AM

Does a tribunal have to settle any controversy in this matter? So $millions will be spent for the appearance of piety by the lawyer profession, but mostly to make money for tax sucking parasites. I know the defense lawyer will say, he is defending the constitution, during this outrageous time wasting. But it is not true. He is just lying, and making a lot of wasted tax money.

Posted by: Supremacy Claus | Jul 25, 2015 11:11:28 AM

The discussion notes that many sentenced to die have had suspect representation. So, is it that the death penalty leads to this or that certain in effect celebrity defendants ... who would get top lawyers even if they murdered 10 people in NY or some other non-death penalty state ... get them? If so, yeah.

I gather back in 1770 or so some were irked at John Adams defending Thomas Preston.

Anyway, it makes sense that if the government is going to kill someone, especially the most unpopular miscreant around, they should get better defenders than even if they lock them up for a long time. But, we don't even get there a lot of times.

Posted by: Joe | Jul 25, 2015 11:58:52 AM

Here is how stupid the lawyers are. Given the notoriety, there are likely hundreds of Dream Team type lawyers who would provide better defenses than this lawyer pro bono, if only to get their names in the paper so rich drug dealers and white collar defendants hire their firms.

Posted by: Supremacy Claus | Jul 25, 2015 2:42:14 PM

So, we need a PET scan on Roof (frontal lobes not fully myelinated), blood and hair lead levels, neuropsychological testing, a sports history in case he headed a soccer ball, a history of concussion,


Then order Michael Levine's mitigation factors review, now up to 128. Keep bringing one up, until the tab is up $10 million.


Posted by: Supremacy Claus | Jul 25, 2015 2:58:47 PM

S.C., thanks for the plug, but it's actually 178.
See July 1, 2015 edition of "171 Easy Mitigating Factors"

Posted by: Michael R. Levine | Jul 25, 2015 11:09:22 PM

Michael. You have one mitigating factor which I sincerely like and strongly support. Assisting the victim in the course of or in the time surrounding the crime. I just never heard of nor read of such a mitigation in this blog, nor in any criminal law textbook, nor anywhere else.

Otherwise, your great book is a roadmap to really slowing the proceedings and generating trial costs. Worth every penny to the defense bar.

Posted by: Supremacy Claus | Jul 25, 2015 11:31:53 PM

For first time I agree with S.C.: Levine's "171 Easy Mitigating Factors" is a great book that I regularly consult It has saved my clients many years in prison. Prosecutors, as well, might gain insight from the cases and arguments in the publication.

Posted by: defense lawyer from Texas | Jul 26, 2015 1:32:17 PM

DLFT: In fairness to me, I have made several defense points, which no one has picked up yet.

I believe that the availability of Michael's book, its simple, clear language represents a required checklist to review with every client facing sentencing. Michael may wish to add a separate checklist for the defendant to review and to check off, with the help of the defense lawyers.

I do find most mitigating factors to be aggravating factors in the real world. However, operating in the legal world as you, missing one of the items in that simple and clearly written list is lawyer deviation from professional standards of due care. It has turned into a guideline defining the standard of due care.

In fairness to me, I have argued that any mention of general deterrence, or the phrase, send a message, should result in a motion for a mistrial. It violates Fifth Amendment due process to punish a person to scare others he has never met, over which he has no control, and who may or may may not consider committing a similar crime in the near or in the distant future. I don't know if Michael added that since I have only read his shorter list.

In fairness to me, I have said I would oppose the death penalty if the existence of the Werther Effect could be shown. The video of Saddam Hussein's hanging caused hundreds of kids to imitate it and to hang themselves. If we are trying to prevent harm, then the Werther Effect is an ironic and twisted consequence.

Posted by: Supremacy Claus | Jul 26, 2015 9:40:23 PM

Roof is getting the best.

If an appellate court rules that someone's representation was inadequate, should that ruling also be one of lawyer malpractice per se? If yes, many insurmountable barriers to a lawyer malpractice claim would be skipped. The trial in a trial. The litigation privilege. Finding an expert witness on professional standards of due care.

Posted by: Supremacy Claus | Jul 28, 2015 10:22:42 AM

My brother is facing federal time. How do I order the 171 Easy Mitigating Factors book?

Posted by: Andrea | Jul 28, 2015 1:28:24 PM

Andrea, go to Levine's website at wwww.levinemchenry.com and follow the link.

Posted by: Dave from Texas | Jul 28, 2015 6:43:21 PM

The appropriate penalty for this schmuck would be to throw him off a high roof.

Posted by: Liberty1st | Jul 29, 2015 11:10:33 PM

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