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December 28, 2016

Dylann Roof tells federal judge he does not plan to present any evidence at penalty phase of his capital trial

As reported in this new AP story, "Dylann Roof told a judge Wednesday he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life for killing nine black worshippers at a Charleston church in a hate crime." Here is more:

But there also is mystery evidence that Roof is working hard to make sure the public never sees in his federal death penalty trial.

Roof, who is acting as his own attorney in the penalty phase to prevent what he thinks would be further embarrassment to himself or his family, again was warned by U.S. Judge Richard Gergel at a hearing Wednesday that being his own lawyer was a bad idea. "That's your decision," Gergel told Roof. "I think that highlights my advice to you that you aren't served by being your own counsel."

Gergel told Roof to talk to his grandfather, who is a lawyer, and other family members one last time. He told Roof he has until the start of the penalty phase Tuesday to change his mind and hire his high-powered, publicly funded defense team back.

The same jurors who convicted Roof earlier this month on 33 counts including hate crimes and obstruction of religion will return next week to decide if he faces life in prison without parole or the death penalty.

Roof spoke for less than 10 minutes of the 35-minute hearing Wednesday. He told Gergel he does plan an opening and closing statement. He then told the judge he objects to prosecutors' plans to present a photograph of evidence in the court's possession. Roof, Gergel and assistant U.S. Attorney Jay Richardson all carefully tiptoed around saying what that evidence was. Gergel did say there was a hearing in which he decided it could be admitted in the penalty phase.

Roof also wanted a jailhouse statement left out of the penalty phase and evidence that involved his mother. No specifics were given. Gergel told Roof to go back to jail and write a motion for him to consider. Roof's ankle chain clanked as he walked back to the defense table in his jail jumpsuit.

Prosecutors also laid out their case. Most of the penalty phase will involve up to 38 people related to the nine people killed and the three people spared when Roof went into Emanuel African Methodist Episcopal Church on June 17, 2015, sat through a 45-minute Bible study in the fellowship hall, then fired 77 shots as many of the worshippers hid under tables.

Gergel, who complained during the guilt phase that prosecutors were repeating themselves at times with witnesses, said he will allow Richardson to call as many witnesses related to the victims as he wants. "The statute provides broad leeway for the victims to be heard, and I plan on honoring that," the judge said....

Gergel spent much of the hearing going over the format of the penalty phase with Roof, warning him several times he was likely doing himself no favors leaving his defense team as just advisers to file briefs. After saying he planned no witnesses, Roof told Gergel he was just answering the same question the judge had asked prosecutors. Gergel said that wasn't necessary. "Don't do them any favors," the judge said. "They aren't going to do you any."

December 28, 2016 at 04:13 PM | Permalink


Enjoy the execution, Doc.

Posted by: anon | Dec 28, 2016 6:07:01 PM

I do not enjoy the judge's attempt to generate lawyer time. Why are prosecution witnesses necessary? Is it necessary to show the jury that the murder of a loved one is painful, devastating, and life changing? Should it be required to be shown beyond a reasonable doubt? Why is this judge trying to get Roof get a real hearing going by rehiring his lawyers? Is this judge preventing reversible error, if yes, which? Or, is this judge wasting tax money in rent seeking?

Posted by: David Behar | Dec 28, 2016 9:27:11 PM


I can sure we both can agree that we do not like what is happening here. However, it's important that we remember that a judge is to remain unbias, impartial, and neutral throughout a court proceeding. This judge is giving Dylan due process. The stakes are high in this case and we he wants to make sure that Dylan is very aware of that. This judge doesn't know what the jury is going to decide, but I believe he is doing a fair and just job buy reassuring Mr. Roof of his options and the possible consequences.

Posted by: Tracy Djuan Boyd | Dec 28, 2016 10:04:35 PM

Tracy. I understand judges' helping pro se criminal litigants conduct a fair trial. I understand protecting the verdict against reversible error. I support such assistance. I would even support urging the defendant to hire a good lawyer if the trial is going against the truth, if there were any doubt about his guilt. I even support the judge's giving the defendant legal advice about rules of evidence he may have never heard before, in a sense, assisting the defense to even the scale of justice.

In my comment, I strongly objected to the long parade of prosecution witnesses, attesting to the pain of the loss of their loved one. That is a waste of time because 1) it is obvious, and testimony adds no information; 2) the rules of evidence seek to prevent emotionally inflammatory testimony; 3) not even lawyer defense experts have ever nor will ever do this. If the witnesses are to testify about damage, then they should be cross-examined about the benefits to them of the death of their loved ones. Examples of benefit would be 1) inheritances; 2) the end of negative, conflictual relationships, including abuses by the murder victim; 3) the relief to the family of the exit of problematic person, a criminal, an addict, an untreated mental patient, emotional and financial relief. Such fairness mandated by the Fifth Amendment would turn the trial into a circus, and is better avoided by precluding victim impact statements.

I have argued, lawyer mitigating factors are really aggravating factors upended by lawyer denial of reality.

In this case, there was no question of fact. Then, not even false lawyer mitigating factors apply to the sentencing decision process.

The jury should have retired after about an hour, not the days or weeks. Their sentencing should be based on the convicted conduct, and on the character of the defendant.

In the rent, people take tax money collected at the point of a gun, and return nothing of value. If you can think of any benefit of factual value, I can be persuaded to be less negative about this judge. All I see here is a theater production, an expensive display false piety, for the benefit of the judge and of the lawyers, and not substantive probative value.

Posted by: David Behar | Dec 29, 2016 12:09:22 AM

When I had originally heard that the defendant had let his lawyers defend him for part of the case, I had assumed it was the penalty phase as that's obviously the more important of the two. It seems that Mr. Roof is making a mistake if his goal is to not receive a death sentence. That being said, if there's any fault, it was the determination he was competent (and the lower standard of competency). After that, everyone has to respect his wishes. My guess is there's some mitigating evidence that reflects poorly on his family and he wishes to spare them embarrassment. That's his choice.

Posted by: Erik M | Dec 29, 2016 8:43:08 AM

The general assumption is that the best hope for him to avoid the death penalty is for him to be labeled unhinged even if he was judged competent. A comment suggests that the defense might reflect poorly on his family. Maybe. These things usually toss something about that in. But, seems to me, it is more about himself and perhaps to give him a platform. It's his choice though on fair trial grounds, it has issues to it. The trial, including the penalty phrase, generally has two skilled advocates going at it for a reason.

You'd think him avoiding the death penalty (twice given the feds want to get involved) is a long shot anyhow. But, some of the victims are against it and it is not out of the realm of possibility -- probably would help if a professional handled the penalty phrase there -- one or more jurors would agree.

Posted by: Joe | Dec 29, 2016 1:21:39 PM

My experience (11 cases at various stages from trial to federal habeas) is that there are four basic mitigation strategies in capital cases: 1) claim that the defendant deserves mercy because of his poor childhood; 2) claim that the defendant deserves mercy (or is less culpable) because of his mental issues; 3) claim that defendant is generally a good person with the murder representing a momentary aberration (i.e. that the defendant's good qualities outweigh the evil of this specific crime); and 4) claim some form of imperfect justification (i.e. that the victim was somebody who needed killing -- e.g., drug dealer, child molester, pimp, etc.) Which strategy is best depends upon the facts of the case (and many will combine the defendant's upbringing with mental health issues) and the likelihood of success for any of them depends upon the strength of the evidence in aggravation.

From what I have read in the papers, it seems most likely that the dispute between Roof and his counsels is between defense counsel wanting to focus on Roof's mental health and upbringing and Roof wanting to assert his belief that these killings were somehow justified. Given the basic facts of the murders -- multiple victims, killed while attending bible study, some of the victims being leaders of the community -- it seems like any defense strategy would face a serious uphill battle.

I suspect that the prosecution will not call all of the endorsed witnesses, but rather will play it by ear and make decisions on which witnesses to call as the penalty phase progresses. It's not unusual to over endorse just in case something happens and to allow for switching witnesses at the last second. Additionally, given that there is only one shot at getting the death penalty, the incentive is there to go for overkill rather than taking the risk of presenting too little.

Posted by: tmm | Dec 29, 2016 1:56:36 PM

I could also see the victims family wanting to speak and the prosecution wanting to honor that request. Otherwise, I tend to agree.

Posted by: Erik M | Dec 29, 2016 3:23:46 PM

David, nothing is "obvious" unless and until it is heard from the witness stand; the rules of evidence do not apply in sentencing hearings; and, everything else raised is neither coherent, nor has anything to do with a criminal trial under the American justice system. Finally, is that you, SC?

Posted by: Mark M. | Jan 1, 2017 4:19:38 AM

The jury should first, order him castrated so that there are no offspring. Second, life in prison with black prisoners. Third, tell him to shut the ukFay up.

Posted by: Liberty1st | Jan 1, 2017 7:13:46 PM

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