« US Sentencing Commission getting an early start on possible guideline amendment | Main | Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21 »

December 2, 2016

Should I be more troubled by Dylann Storm Roof being allowed to defend himself at his federal capital trial?

Abc_dylann_roof1_wg_150716__16x9_992The question in the title of this post is prompted by this intriguing commentary authored by Chandra Bozelko and headlined "Dylann Roof shouldn’t be allowed to act as his own lawyer." Here are excerpts:

Dylann Roof, the avowed white supremacist accused of killing nine black parishioners at a historic Charleston, South Carolina church last year, is a 22-year-old man with a presumed history of drug use. He did not graduate from high school. He could be sentenced to death if a jury finds him guilty. And yet he is acting as his own lawyer to defend himself against 33 federal charges of murder and hate crimes.

Roof is representing himself in court against the advice of the presiding judge, Richard Gergel. And by doing so, Roof will likely go the way of other self-represented defendants like Joan of Arc, Jesus, Socrates and Ted Bundy: he’s probably going to be convicted and killed.

But what many people don’t understand is that the judge had no choice but to let Roof represent himself. Since the Supreme Court decided Faretta v. California in 1975, the right to represent oneself is absolute regardless of intellect or educational attainment. Requests to relinquish counsel “…must be honored out of that respect for the individual which is the lifeblood of the law.”

Because it’s likely to be little more than a spectacular suicide, the Roof trial should get us to admit that the lifeblood of the law has clots in it. Unprepared defendants shouldn’t be allowed to represent themselves in capital trials; the Supreme Court precedent established in Faretta needs to be overturned or modified in a meaningful way.

I wasn’t as successful as Dylann Roof. In 2007, I tried to represent myself in a criminal trial but was denied, Princeton degree and two years of law school notwithstanding. The judge claimed that, because my request came after jury selection but before the start of the state’s evidence, it was a delay tactic and made my motion untimely. I hadn’t asked for a continuance and was prepared to start right away.

I had a lawyer forced upon me, one who admitted she hadn’t read the police reports and went on to advise the jury that there was no reasonable doubt about my guilt. I ended up being convicted of ten felonies and four misdemeanors and sentenced to five years in prison for identity theft-related crimes, but without a lawyer I might have been sentenced to the maximum on every charge consecutively, which was 185 years in jail. I wasn’t facing the death penalty and the judge assigned to my case still wouldn’t let me represent myself.

Scholars, judges and attorneys have long seen self-represented defendants as calves pulling their own leads to slaughter. Accordingly, they’ve chipped away at Faretta with decisions like the one in my case. Courts look for ways to deny requests for self-representation because they know the unfairness that can ensue. Federal circuit courts are actually split on what constitutes a valid self-representation request. The Supreme Court itself curbed the Faretta right in 2008 in Indiana v. Edwards when it held that defendants can be competent to stand trial yet not competent to represent themselves.

Whether self-representation would hurt every defendant who engaged in it is debatable. The limited evidence we have on the number of self-represented defendants who win is encouraging. But many of those successes come in cases where lethal injection isn’t a possible penalty. Every self-represented person in a capital case has lost.

And yet we still allow defendants like Dylann Roof to act as their own attorneys, despite their obvious inability to do so.... Saying that minimally educated or mentally ill criminal defendants who face lethal penalties must be free from government intrusion in the form of counsel is the same thing as saying suicide is part of individual liberty. While it may be true, it contradicts our country’s alleged respect for life. What is judicially permissible may not be moral....

Removing self-representation as a possibility in capital cases could and should be corrected for with some type of minimum standards for capital defenders.... This denigration of the right to effective assistance of counsel is what makes it easy to allow defendants like Dylann Roof to represent themselves. If appointed counsel won’t do much better, why not let people exercise their rights under Faretta and get themselves killed? Especially when the trial will add glorious sound bites and scenes of an allegedly racist killer getting to cross-examine his African-American victims.

In the name of individual liberties that we’ve already stopped protecting, we will watch Roof’s slow, elaborate, taxpayer-funded self-harm unfold. The trial of the Charleston church shooter places us at a crossroads of Constitution and conscience. If we overturn Faretta v. California and prevent defendants in capital cases from defending themselves while providing them with qualified and paid counsel, we won’t have to choose.

I am tempted to assail many contentions in this commentary, and yet I feel I must give it some respect because it was authored by someone who seemed to have been burned by his her own inability to serve as his her own attorney. I will just comment that I always look for principles of liberty and personal freedom to guide me when I think I might be "at a crossroads of Constitution and conscience." And principles of liberty and personal freedom lead me to the view that persons who are competent should generally be allowed to represent themselves when on trial for their lives or for any other interest.

A few of many prior related posts on prosecution of Dylann Storm Roof:

December 2, 2016 at 08:54 AM | Permalink


At the end of the day, I would probably agree with someone's right to defend themselves especially with the presence of stand by counsel. I say "probably" since I'm somewhat less firm about it than other things.

But, partially since provision in the Bill of Rights really shouldn't just be seen in a vacuum here, it is not a total simple call. An actual defense counsel is very useful to protect the overall sanctity of the trial and the safeguards of the Bill of Rights generally. So, e.g., if someone is ignorant of the law and doesn't know how to object, blatantly unfair results can occur by default. Also, the trial's truth finding aspects can be cited with some cynicism, but again, the whole idea is to have two actual lawyers there to have a sort of battle with the end result being some form of justice.

Finally, it will be harder for the witnesses to be questioned by an unhinged uninformed (if allegedly competent) defendant here.

Posted by: Joe | Dec 2, 2016 9:43:31 AM

I haven't followed the court proceedings closely and have no access to his confidential mental health information, so I can't comment on his particular choice or the district court's ruling. The law is clear, however, that competence to stand trial and competence to act as your own attorney are different, and the standard for competency for the second is higher. Particularly in a death case, I think the court should give real weight to the distinction and pause before letting any person represent themselves when death is on the table.

Posted by: defendergirl | Dec 2, 2016 9:53:14 AM

I also read analysis arguing that the judge in the case is applying the rules with too heavy of a hand and should let's say let the standby counsel be able to object in certain cases (unless Dylann Roof clearly opposes it) & that other judges handled it differently.

Posted by: Joe | Dec 2, 2016 10:35:13 AM

He did it. There's no doubt he did it, and he deserves to die for it. Who cares? This handwringing is just pathetic.

Posted by: federalist | Dec 2, 2016 10:35:32 AM

The author of this piece sounds like he had an amazing Faretta issue on appeal, if he's accurate about his trial.

And for the record, of COURSE people should have the right to represent themselves, if they're sane enough to manage it. It's an important right, and it exists to stop people from having incompetent or conflicted counsel foisted on them to prevent them from speaking their piece. That judges sometimes punish pro se defendants with consecutive sentences doesn't mean we should stop people from representing themselves--it just means we should be looking more closely at such trial taxes to ensure fair sentencing.

Posted by: Andrew Fleischman | Dec 2, 2016 11:03:02 AM

I got curious and looked up the opinion. It makes more sense now. https://scholar.google.com/scholar_case?case=137246112903201289&q=Chandra+Bozelko&hl=en&as_sdt=4,7#[8]

"The representation of counsel that the defendant "was willing—or she's prepared to go forward pro se, if need be," is not precisely the same as a representation that the defendant would proceed without any delay or disruption and that none would occur during trial. The circumstances, of course, would be different had trial not begun."

Posted by: Andrew Fleischman | Dec 2, 2016 11:07:22 AM

"it exists to stop people from having incompetent or conflicted counsel foisted on them to prevent them from speaking their piece"

The defendants are likely to be less competent than even counsel so incompetent that even a conservative would find appeals on the point sound. If they merely want to "speak their piece," do that. Relying on the person to question/challenge jurors etc. isn't necessary for that, I gather. Basically, it seems Dylann Roof didn't want his counsel to put on a defense suggesting he is unhinged.

Anyway, even if he's obviously guilty, etc., one would think some might worry about the victims here, who now have to have him asking them questions. Colin Ferguson asking people in that train questions, I gather, was pretty hard, harder than if his counsel to. Or, if a rapist "obviously guilty" was asking his/her victim questions directly especially a child. And, how much harder it makes for the judge etc.

Posted by: Joe | Dec 2, 2016 11:10:59 AM

"Anyway, even if he's obviously guilty, etc., one would think some might worry about the victims here, who now have to have him asking them questions. Colin Ferguson asking people in that train questions, I gather, was pretty hard, harder than if his counsel to. Or, if a rapist "obviously guilty" was asking his/her victim questions directly especially a child. And, how much harder it makes for the judge etc."

Not relevant to the inquiry. If he gets to, he gets to, and those issues do not bear on the question. Stop handwringing and get on with it.

Posted by: federalist | Dec 2, 2016 12:26:39 PM

The constitutional right is "to have the assistance of counsel." The rules of professional conduct give the final say over most defense decisions to defense counsel. At least in my experience (both as a public defender and as a prosecutor), it is not unusual for defendant's and defense counsel to have different opinions on what the defense should be. If after receiving the advice of counsel on how the case should be defended, competent (in the Edwards sense) defendants decide that they do not want "assistance" that amounts to counsel overriding the defendant's wishes, then that seems to me to be part of the concept of "ordered liberty" that the Bill of Rights as a whole protects. While we all wish for a fairness and accuracy in legal proceeding, some values take higher priority. The issue is not whether counsel being foisted on defendant is competent (although that is a frequent complaint that those seeking to represent themselves make), the issue is whether a defendant has to surrender control of his case to a counsel when they disagree about how the case should be managed.

There is always the question of standby (i.e. ready to step-in), hybrid (shared responsibilities), and advisory counsel. But all of these variations are ways of cluttering up the fact that nobody in the legal system likes the fact that defendants have a right to represent themselves. Assuming that the judge dotted the i's and crossed the t's during the Faretta hearing (and appellate judges are prone to seize on the tiniest errors in those hearings), I am not "bothered" that Root gets to represent himself. I think that it's probably a dumb move that increases the likelihood that Root will not outlast the Trump Administration, but it's his right to cut his own throat in court.

Posted by: tmm | Dec 2, 2016 12:42:46 PM

He wants to represent himself so he can spew his racism. This is a trial that people really need to listen too. Let him talk about the sites on the internet he got his information from. AS a Blk Man, I want to hear this, you should too. it shows a Cancer growing in this country. Not saying this to be Racist, but White's need to listen very closely, this type of mindset is growing in this country. He is not Cutting his own Throat, this is what he believes. he told the Cop's he did it because of Racism. We minorities have been complaining about racism in courts, policing, education and how we are perceived. America needs to look at it's self because this country is getting more diverse everyday. Almost 1000 hate related incidents since the election of 2016, and there are more people like him in this country. People need to quit ignoring what's happening and pay some attention because this is going to get worse.

Posted by: Kevin Newbill | Dec 2, 2016 4:33:54 PM

The "assistance of counsel" -- and this was brought up during oral argument in Faretta -- doesn't suddenly mean ipse facto he himself can act like counsel here. It is not merely that he is waiving counsel. He is making decisions now a counsel makes.

He is not saying "judge, you decide" or something. That's a major concern even if "ordered liberty" gives him the right to act as his own counsel. That's why to me it's a tad harder than some here appear to be making it. federalist notes:

"Not relevant to the inquiry. If he gets to, he gets to, and those issues do not bear on the question. Stop handwringing and get on with it. "

The fact someone "gets to" do things doesn't mean there shouldn't be a concern about it. It's a major reason why we don't blithely accept certain things, like guys like this causing problems -- including to victims, which federalist repeatedly cites as an important concern -- by being their own counsel. Legal and something to worry about is not the same thing.

Posted by: Joe | Dec 2, 2016 8:15:16 PM

Defendergirl. The success of the pro se litigant in criminal court is better than your success rate, much better. You stink at your job. Any criminal off the street, uneducated, unhinged, and unpaid can do a better job than you kind can.


Posted by: David Behar | Dec 3, 2016 1:44:27 AM

Adherence to the constitutional protections enshrined in the Bill of Rights = "handwringing." It's good to be reminded that there are those who really think this way.

Posted by: Mark M. | Dec 3, 2016 8:49:05 AM

Professor Berman, the author of the commentary you reference, Chandra Bozelko, is a woman.

I think there should be a special rule at least for capital trials, in which the court can determine whether it is in a defendant's best interest to represent herself in capital trials. I think it could be fairly argued that a defendant who insists upon representing herself is either attempting to fail or uneducated about her ability to succeed/ the system she is working within. If the individual is attempting to fail, that is indicative of a suicidal intent. How can the adversarial system work if the defense counsel is ineffective and willing to lose?

The state wields great power in sentencing someone to death, and even lay-bystanders can see that Dylann Roof is "troubled." Surely the process by which this person's life could be ended, in our name, should have more dignity than the three ring circus it will be if Roof represents himself. If not for Roof's dignity, than for ours. Though I especially think this is true when considering liberty and personal dignity for Roof himself-- perhaps in the very short term, he will have the liberty of saying (some of) what he pleases in court. But in the long run, it seems clear that he will face the ultimate deprivation of his liberty and personal dignity.

Posted by: Law student | Dec 4, 2016 12:26:10 AM

Dear Student: I want you to learn about the Rent Seeking Theory. See the good Wikipedia review. The lawyer adds no value to the defense, indeed has an inferior performance to the pro se criminal litigant.

Stop being a rent seeker to generate lawyer jobs with false propaganda. Such propaganda violates the Rules of Conduct and the fiduciary responsibility of the lawyer to be candid about the benefit of representation.

Posted by: David Behar | Dec 4, 2016 12:49:40 PM

I have fixed my pronoun reference, law student, and thanks for reminding me I needed to do so. But speaking of pronouns, though, I think it is misguided to talk of a woman wanting to "represent herself in capital trials" because only about 5 of every 100 charged with capital crimes are women.

On substance, the point of the adversarial system is to serve defense interests, which is why defendants can waive so many of its features and plead guilty. If rather than plead guilty, if a defendant wants to just tank his own defense, so be it. I agree that Dylann Roof is "troubled," but the same can be said about most serious criminal defendants.

Meanwhile, what does it mean for a system to have "dignity" and whose choice is that. Is it dignified for Roof to have court decisions made by someone not of his choosing? (Make this personal: would you like some govt-appointed person completely in charge of picking what law school courses you take, what jobs you work and how you spend your salary? Would that feel dignified to you?)

And isn't it a given, whether forced to have representation by a govt-appointed lawyer or going on his own, that Roof "will face the ultimate deprivation of his liberty and personal dignity" via either an LWOP or death sentence?

Posted by: Doug B. | Dec 4, 2016 5:35:22 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB