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August 25, 2021

Unusual Fourth Circuit panel affirms federal convictions and death sentence for Charleston church shooter Dylann Roof

I noted in this post from May 2021 that an unusual Fourth Circuit panel had to be assembled to hear the capital appeal of Charleston church shooter Dylann Roof because all the member of the Fourth Circuit were recused.  The mass recusal resulted from the fact that now Circuit Judge Jay Richardson was in the U.S. Attorney’s Office in South Carolina in 2017 and the lead prosecutor on the Roof case.  And it meant that  Judge Duane Benton of the Eighth Circuit, Judge Kent Jordan of the Third Circuit and Senior Judge Ronald Gilman of the Sixth Circuit considered Roof's many issues on appeal.

That trio of judges today handed down a 149-page opinion in United States v. Roof, No. 17-3 (Aug. 25, 2021) (available here).  The per curiam opinion starts and concludes this way:

In 2015, Dylann Storm Roof, then 21 years old, shot and killed nine members of the historic Emanuel African Methodist Episcopal Church (“Mother Emanuel”) in Charleston, South Carolina during a meeting of a Wednesday night Bible-study group.  A jury convicted him on nine counts of racially motivated hate crimes resulting in death, three counts of racially motivated hate crimes involving an attempt to kill, nine counts of obstructing religion resulting in death, three counts of obstructing religion involving an attempt to kill and use of a dangerous weapon, and nine counts of use of a firearm to commit murder during and in relation to a crime of violence.  The jury unanimously recommended a death sentence on the religious-obstruction and firearm counts, and he was sentenced accordingly. He now appeals the convictions and sentence.  Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3595(a), we will affirm....

Dylann Roof murdered African Americans at their church, during their Bible-study and worship. They had welcomed him. He slaughtered them. He did so with the express intent of terrorizing not just his immediate victims at the historically important Mother Emanuel Church, but as many similar people as would hear of the mass murder. He used the internet to plan his attack and, using his crimes as a catalyst, intended to foment racial division and strife across America.  He wanted the widest possible publicity for his atrocities, and, to that end, he purposefully left one person alive in the church “to tell the story.” (J.A. at 5017.)  When apprehended, he frankly confessed, with barely a hint of remorse.

No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose.  We have reached that conclusion not as a product of emotion but through a thorough analytical process, which we have endeavored to detail here. In this, we have followed the example of the trial judge, who managed this difficult case with skill and compassion for all concerned, including Roof himself.  For the reasons given, we will affirm

In capital cases, it is pretty common for the losing party to seek en banc review. But, as was discussed in my May post, it is unclear whether and how an additional 12 judges would get appointed by designation in order to properly consider any en banc petition that might come next. Roof can, of course, proceed now to seek certiorari from the U.S. Supreme Court (which will surely happen eventually even if he does seek en banc review).

A few of many prior related posts:

August 25, 2021 at 04:34 PM | Permalink


"His crimes qualify him for the harshest penalty that a just society can impose."

That wouldn't be the death penalty, but "just" in this context would be as found by the Supreme Court.

Posted by: Joe | Aug 25, 2021 5:13:06 PM

Agree with Joe.

For en banc, is 12 mentioned because 12 + the initial 3 = 15, which is the same number of non-senior judges currently on CA4? I think it wouldn’t be hard to scrounge up 12 more judges if needed. But would the size of the en banc court sitting by designation necessarily have to match that of an ordinary CA4 en banc court exactly? It seems like at least an open question.

Also, for en banc it would be quite interesting to have some judges writing separate opinions, whereas here you just had a per curiam.

PS it’s Judge Benton not Burton.

Posted by: kotodama | Aug 25, 2021 8:59:27 PM

BTW, the recusal thing was discussed here in the past, but I still find it a bit much that the whole circuit recused themselves.

I realize this case is rather unique.

Posted by: Joe | Aug 26, 2021 10:03:23 AM

Thanks for the correction, kotodama, and I have fixed the name in the post. My numerology is based on the fact that the Fourth Circuit has 15 authorized active judgeships. So that would be the usual en banc voting number, which I presume should be replicated. I say that because I think we would surely have thought it weird an problematic if somehow this first panel of designated judges for the initial appeal was comprised of only 2 judges or was 5 judges or some other number other than the usual 3 judges for a circuit panel.

I also wonder who makes these calls and decides on the substitute judges. In less unusual settings, I assume it is the circuit chief in charge. But that judge is here recused, so it must be someone else. Chief Justice Roberts is the circuit Justice for the Fourth Circuit. I would guess he is somehow involved in running this show, but I do not know the rules of judicial administration to speculate whether there could be more to the story (e.g., should CJ Roberts appoint a Fourth Circuit Chief Judge by designation who then makes key decisions here or does he just do it himself? Is there any worry that whatever might be the Chief's possible role at the Fourth Circuit, it then impacts his SCOTUS work when the Roof case comes to SCOTUS?).

This is all likely academic, as I cannot imagine any group of 12 new designated circuit judges voting 8-4 to consider this case en banc (presumably the three panel members will all vote against). Then, again, I could imagine certain possible designated judges being eager to write a concurrence or dissent from a negative en banc vote in order to try to encourage a SCOTUS cert. grant.

One last point --- can you tell I find this fascinating? --- however this plays out on direct appeal, the Fourth Circuit will likely have to confront these issues again if/when Roof brings a 2255 action and appeals that collateral attack. And if he eventually brings a successor 2255 (imagine if the Roper age limit for who can be executed gets raised to 21 sometime in the 2030s), a panel of designated judges will be needed to decide if he can under AEDPA.

Posted by: Doug Berman | Aug 26, 2021 10:59:52 AM

I find it quite interesting too, obviously because, as Joe observes, it's such an unusual arrangement.

On the point about the initial panel size vs. a potential en banc panel size, I think there are some key distinctions. This is hardly an area where I claim expertise, but I did a little basic research and found some relevant info. On the initial panel, that size is specified exactly by statute. 28 U.S.C. § 46 provides that in typical situations, it must be a 3-judge panel. But for en banc it's different. No exact size is required; instead, the statute just states that an en banc panel ordinarily "shall consist of all circuit judges in regular active service." So the size will vary for each court depending on how many active judges there are. I certainly agree that, here, the path of least resistance in the event of en banc would just be to replicate the existing composition of CA4 precisely--that is, by adding another 12 assigned judges. But I don't think that's strictly required. Again, the size of the en banc panel isn't specified numerically, but just as a function of each individual court's personnel. I also think you can argue that in a case like this where "all circuit judges in regular active service" are recused anyway, there's no requirement to match the numbers exactly. Of course, if en banc does in fact happen, the most conservative approach would be to compensate completely for all the recusals, and I suspect that's how it would play out.

As to who makes the call, my research indicates that CJ Roberts is the ultimate decider. 28 U.S.C. § 291(a) provides: "The Chief Justice of the United States may, in the public interest, designate and assign temporarily any circuit judge to act as circuit judge in another circuit upon request by the chief judge or circuit justice of such circuit." So, here, if Gregory (the CA4 chief judge) wasn't recused even for the purposes of making an assignment request, then he requested from Roberts, and Roberts took it from there. Or, if Gregory was recused, as Prof. B. notes, Roberts is the circuit justice anyway, so he could just "request" assignments from himself(!). Either way, Roberts makes the final call.

I don't know that his role as assigner is necessarily a cause for recusal at SCOTUS either. Presumably, there is no difference in which judges are assigned and they're all expected to apply the law (here, CA4 law) in the same way as another assigned judge would. In other words, Roberts isn't "stacking the panel" (an accusation that's been leveled at the PTO director) to achieve a desired outcome. And if simply making assignments were adequate grounds for recusal, then Roberts would be recused every time a case with an assigned circuit judge came up for SCOTUs review. That seems a little excessive. Of course, this is also not a typical case.

Yet another thing that would be fascinating, especially for me as a patent wonk, is, if en banc does in fact happen with 12 additional judges, could a Fed Circuit judge end up on the panel? Criminal matters are of course totally absent from that court's docket, so it'd be quite amusing if one of the judges had a role in deciding a DP appeal.

And speaking of this case playing out for many years, what if Biden wins another term and the DP moratorium remains in place? Does that mean an appeal on that issue isn't ripe yet? I have no idea.

Finally, I agree with Joe that the recusals are way overboard. But I guess they don't want to take even the slightest chance of creating an appeal point, and so are being excessively cautious.

Posted by: kotodama | Aug 27, 2021 12:47:27 PM

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