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May 31, 2016

Intriguing capital case tussle between South Carolina and feds in Dylann Roof prosecution

As noted in this prior post, last week federal prosecutors finally decided that they will seek the death penalty for racist mass murderer Dylann Roof.  That decision, as reported in this recent local article, now creates some novel issues in light of South Carolina's parallel capital prosecution plan.  The article, headlined "Dylann Roof prosecution entering ‘uncharted waters’ of legal history," includes these passages:

Authorities will have two chances to see that Dylann Roof meets the same fate as his victims.

But never in modern times have both state and federal prosecutors sought someone’s execution at the same time. How they will manage two death penalty cases could break legal ground and offer some lessons.

“We are in completely uncharted waters,” said Chris Adams of Charleston, an experienced capital defender. “The federal government’s decision (to seek the death penalty) creates many more questions than it does answers.”...

Scheduled for Jan. 17, the state’s trial is on a faster track. Wilson also sent a letter to [U.S. District Judge Richard] Gergel, asking him to set the federal trial later. The judge could finally set a trial date at a June 7 hearing.... The possibilities are daunting. “It just creates logistical chaos,” Adams said. Officials must sort out subpoenas being filed in two different courts, he said. Prosecutors in each case also must give the defense all exculpatory evidence, or information used to fend off a guilty verdict or to mitigate a sentence. If some evidence is missed in the first trial only to be discovered when it’s turned over in the second trial, that might be grounds for an appeal in the first...

State and federal authorities rejected Roof’s offer to plead guilty and serve life in prison. “Now what we’re going to have is ... possibly two very public, very painful trials and unquestionably a decade of appeals,” [DPIC executve director Robert] Dunham said. “The families will have to deal with Dylann Roof getting all the attention.” But Dan Simmons Jr., whose father was slain in the attack, said prosecutors have made him well aware of that. The Virginia resident has attended most hearings in the two courthouses that sit across the street from each other. “It’s been more than overwhelming,” he said. “But it’s not an overnight thing. ... It’s going to open up some wounds. But we will endure.”...

The state ran out of its supply of the fatal drug [used in executions] in 2013. Citing ethics, all major manufacturers have cut off the states, whose stashes soon expired or were seized as illegal imports. And the federal government has been reviewing its injection methods since 2010, effectively halting executions. There is no indication that either government is in a better position to obtain the supplies now, Dunham said. State prisons spokeswoman Stephanie Givens said, “Officials continue to research solutions and alternatives but have been unsuccessful in acquiring lethal injection drugs.” So even if a jury condemns Roof to death, experts said, the 22-year-old could live a long life in prison — unless he voluntarily opts for South Carolina’s alternative execution method: the electric chair.

I cannot at this point resist highlighting that I flagged the possibility of a double capital prosecution in this post about the case back in June 2015.

A few prior related posts:

May 31, 2016 at 09:10 AM | Permalink


Yes, I hold to my comments in that older post as well, including the double jeopardy matter (as I noted recently, I realize different sovereigns are allowed to prosecute under current law though Koons v. U.S. hinted at a limited concern regarding sentencing).

If this is going to cause problems, it only underlines it's just ill-advised and avoidable by just letting SC prosecute. There also seems to be no great rush -- the feds might actually be better off waiting to see how the state prosecution goes. Finally, there is a reasonable argument that the decision should be made by the Administration under which the trial should take place.

Posted by: Joe | May 31, 2016 9:22:45 AM

("prosecute" might work -- even a non-capital federal case might best wait -- but the ultimate issue is clearly the capital part)

Posted by: Joe | May 31, 2016 9:24:13 AM

It's not entirely unprecedented: http://www.mercurynews.com/ci_16906226

Posted by: John | May 31, 2016 9:38:31 AM

I should have noted that having both a state and federal capital prosecution is not unprecedented. The Anh Dung case in California involved exactly that. There, the federal case went second and resulted in a life verdict. The state case landed him on death row. http://www.mercurynews.com/ci_16906226

Posted by: John | May 31, 2016 9:48:21 AM

Concurrently try the federal and state cases , using total of 24 jurors , 12 from each jurisdictional pool •

Posted by: Docile Jim Brady „ the Nemo Me ♠ Impune Lacessit ♂ in Bend, Oregon ‼ | May 31, 2016 4:11:33 PM

Not unprecedented, they ended up doing dual prosecution with Nichols (McVeigh's co-defendant), but both juries deadlocked on death.

From the prosecution side, two good reasons for federal prosecution: A) one less round of review; B) more likely feds will actually be able to carry out execution.

Brady is not really a good reason not to have dual trials. If the evidence it is not disclosed for the state trial, it will be an issue used to challenge the sentence regardless of how it is discovered later.

Posted by: tmm | May 31, 2016 5:57:26 PM

"more likely feds will actually be able to carry out execution"

Wouldn't know that from the execution totals.

Posted by: Joe | May 31, 2016 6:39:14 PM

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