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May 24, 2021

Charleston church shooter Dylann Roof to have appeal of his death sentence heard by (unusual) Fourth Circuit panel

As detailed in this website, candidate Joe Biden pledged to "Eliminate the death penalty" if elected.  But many months into his presidency, it appears that Prez Biden's Department of Justice is continuing to actively defend the application of the death penalty in at least on high-profile case.  Specifically, as detailed in this local article, tomorrow a Fourth Circuit panel will hear arguments on Dylann Roof's appeal of his conviction and death sentence with DOJ apparently seeking to defend that punishment.  Here are the basics:

Defense lawyers will advance arguments Tuesday on up to 20 issues in the U.S. 4th Circuit Court of Appeals in Richmond as to why Dylann Roof was wrongfully convicted and sentenced to the death penalty in 2017 after a weeks-long trial. They will ask the court to vacate both the conviction and the death penalty.

Those arguments will be countered by a team of prosecution appellate lawyers from the U.S. Department of Justice. They seek to uphold the conviction and sentence.

Roof, 27, who grew up in Columbia, was sentenced to death in January 2017 by U.S. Judge Richard Gergel after a jury found him guilty of 18 death eligible federal hate-crimes and firearms charges. In a subsequent proceeding to determine sentence, the same jury ruled Roof deserved the death penalty. Judge Gergel then pronounced the sentence.

Evidence at Roof’s trial, which included his own writings and selfie photos and videos, portrayed him as a self-described white supremacist who wanted to start a race war by killing African-Americans. To implement his plan, Roof traveled to Charleston in June 2015, entered a prayer meeting at an African American church and executed nine Black churchgoers, including beloved Democratic state Sen. Clementa Pinckney.

“Multiple issues arising from convictions for hate crime, religious obstruction, and firearms offenses resulting in death and from imposition of death penalty” will be considered, according to a description about the case on the Fourth Circuit’s web site.

Roof’s purported mental illness and inability to be his own lawyer — casting aside an active defense role by David Bruck, one of the nation’s most experienced death penalty lawyers — is a major feature of Roof’s defense....

“Though Roof’s mental state was the subject of two competency hearings, and five experts found him delusional—findings swiftly dismissed by the court, in its rush to move the case along—jurors never heard any of that evidence. Instead, prosecutors told them Roof was a calculated killer with no signs of mental illness. Given no reason to do otherwise, jurors sentenced Roof to death. Roof’s crime was tragic, but this Court (the 4th Circuit) can have no confidence in the jury’s verdict,” the defense brief on the case says....

Prosecutors will argue that Judge Gergel’s rulings in both the guilt or innocence, as well as the penalty, phases of the trial were correct. “(Judge Gergel) did not clearly err in finding Roof competent to stand trial. The finding was supported by expert testimony and was not arbitrary or unwarranted,” the prosecutors’ brief said. “Roof’s right to self-representation was correctly defined and properly protected.”

“No error occurred at the penalty phase,” the prosecutors wrote. “The death penalty was not plainly erroneous based on Roof’s age or mental condition. Finally, Roof’s convictions rest on sound legal and constitutional grounds.”

Interestingly, though this appeal is technically being considered by the Fourth Circuit, no Fourth Circuit judge will actually be hearing the appeal. The press article explains:

The judges on the panel are Judge Duane Burton of the 8th Circuit Court of Appeals; Kent Jordan of the 3rd Circuit Court of Appeals; and Senior Judge Ronald Gilman of the 6th Circuit Court of Appeals. Usually, judges on a panel are chosen from the full 4th Circuit, which has 15 judges. However, 4th Circuit Judge Jay Richardson of Columbia was in the U.S. Attorney’s Office in South Carolina in 2017 and the lead prosecutor on the Roof case.

I welcome reader comment on the (interesting?) metaphysical question of whether an appeal in the Fourth Circuit heard by no Fourth Circuit judges is really a Fourth Circuit appeal.  (I also wonder if there will have to be an additional 12 judges appointed by designation in order to properly consider any en banc petition that might follow a ruling from this panel.)

A few of many prior related posts:

May 24, 2021 at 10:09 PM | Permalink


Quirky but still following 4CA precedent and all that.

Posted by: Joe | May 25, 2021 7:00:06 AM

An excellent point, Joe, that the parties and the judges on the panel will still focus particularly on Fourth Circuit precedents (although in some circuits en banc proceedings are often the means to reverse troublesome past precedents).

Posted by: Doug B. | May 25, 2021 7:29:48 AM

No one has ever explained how a Senior Circuit Judge from the 9th Circuit ended up sitting on my 3-Judge panel in the Fourth Circuit and writing the opinion for the Appeals Court. The record was large because we had a 17-day jury trial in Huntington, West Virginia. See, United States v. Bollin, et al., 264 F.3d 391 (4th Cir. 2001).

Posted by: Jim | May 25, 2021 9:05:39 AM

Weird question, why are all of the other judges on the Fourth Circuit recused? My experience is that normally only the judge with the conflict recuses.

I know that, when Judge Benton went from the Missouri Supreme Court to the Eighth Circuit, he recused on all of the Missouri habeas cases, but the other Eighth Circuit judges still sat on those cases.

Posted by: tmm | May 25, 2021 10:39:58 AM

tmm, it's not weird at all. I had the same question earlier, but it somehow got moderated into oblivion.

Also, it's interesting that Roof has counsel now. I note on PACER that he filed his own "supplemental brief" too in a pro se capacity.

Posted by: hardreaders | May 25, 2021 12:25:25 PM

This confusion suggests the usefulness of there being a public statement of why there are recusals.


Audio of the argument:


Posted by: Joe | May 25, 2021 2:00:07 PM

Reasons would be nice. Congress has power to require that for lower court judges.

In this case of circuit-wide recusal, it seems like CJ Roberts decides which out-of-circuit judges sit on the panel. He doesn’t have to give reasons for his choices either 😛

Posted by: hardreaders | May 25, 2021 2:37:28 PM

The lead prosecutor at Roof's trial was Jay Richardson. Not long after that trial, he was confirmed as a judge on the Fourth Circuit. When Roof's appeal came up, all of the judges on the Fourth Circuit recused themselves because it would be inappropriate for them to judge a member of their bench. The panel for the argument (which lasted about three hours) consisted of three federal appeals court judges, each from a different circuit. The judges mentioned several times that they must consider the issues under Fourth Circuit precedent, not the precedent of their home circuits.

Posted by: mjb | May 25, 2021 4:46:46 PM

"When Roof's appeal came up, all of the judges on the Fourth Circuit recused themselves because it would be inappropriate for them to judge a member of their bench."

Prosecutors become judges & the cases they prosecuted at times come to the court they are on. If this rule is standard, it is curious why people here (including lawyers) are surprised.

Judges recuse regularly over the years because a case arises that touches upon their public service.

Maybe, e.g., as a member of the Justice Department they worked on something. Thurgood Marshall, e.g., was Solicitor General before he became a justice. Tom Clark was attorney general. And so on. Many state examples surely can be cited as well.

The concern here for a very sensitive case is not surprising really but it is not consistently applied this strictly.

Posted by: Joe | May 25, 2021 6:52:13 PM

A standard recusal rule for Judges is that they are to avoid even the possible appearance of impropriety, even if there is no actual impropriety. This would seem to explain why all of the sitting 4th circuit Judges recused themselves when this highest of high profile DEATH PENALTY cases came before the 4th Circuit on appeal. The defendant is someone that our Government intends to kill (execute), so the Judges never want anyone to question whether they might have been influenced by the new 4th Circuit Judge, Jay Richardson, who was the lead prosecutor in the Roof case in District Court. Let me add that virtually all Judges and their law clerks are much ore careful and give additional attention to death penalty cases (based on my personal conversations). They never want someone to receive the death penalty who has not received all possible consideration and Due Process of Law. As some so eloquently put it, "death is different".

Posted by: Jim Gormley | May 26, 2021 7:40:01 AM

Joe, the thing is that the rule is not standard. Appellate courts regular judge cases in which their colleagues played a role -- either as attorneys or as lower court judges. While the norm is that a judge recuses from any case in which they played a role, the other judges on the court usually do not.

For example, Judge Benton was the state Director of Revenue in Missouri before being appointed to the Missouri Supreme Court. At the time, there were multiple revenue cases pending in the Missouri Supreme Court. Judge Benton recused from all of those cases and a special judge sat in on those cases, but the remainder of the Missouri Supreme Court did not recuse even though they were effectively judging their colleague's decisions.

So it's not surprising that the attorney who handled the Roof case at trial recused. What is surprising is that the entire court recused.

Posted by: tmm | May 26, 2021 10:51:57 AM

Those three judges probably *are* the en banc 4th Circuit in this case

Posted by: Jason | May 27, 2021 5:39:43 PM

Yes, tmm, I didn't think the rule was standard though appreciate the extra details. The statements (including in another law blog where this came up) that imply that came off as too flippant. As Jim Gormley suggests, I think the special nature of the case is why they are being extra concerned here. It would make sense, as I noted, a clearer statement to avoid this confusion imho.

Posted by: Joe | May 30, 2021 6:10:57 PM

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