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March 2, 2022

Will the US Supreme Court be interested in any issues being pressed by Charleston church shooter Dylann Roof?

The question in the title of this post was prompted by this new AP article headlined "Dylann Roof takes church shooting appeal to US Supreme Court."  Here are excerpts:

Attorneys for convicted Charleston church shooter Dylann Roof have asked the U.S. Supreme Court to decide how to handle disagreements over mental illness-related evidence between capital defendants and their attorneys, an issue that has played a role throughout his case over the 2015 racist slayings of nine members of a Black South Carolina congregation.

When a capital defendant who has been ruled competent to stand trial and his attorneys “disagree on whether to present mitigating evidence depicting him as mentally ill, who gets the final say?” Roof’s appellate team wrote in their petition, filed late last month with the high court.  Justices’ consideration is “needed to resolve a deep divide among the lower courts over who — client or lawyer — gets to decide whether mitigation evidence will be introduced at a capital penalty hearing.”

Roof’s self-representation and desire to block any evidence potentially portraying him as mentally ill — even if it could have helped him avoid the death penalty — has been a constant part of his case.  During the sentencing phase of his death penalty trial, Roof fired his legal team and opted to represent himself.  This move, his appellate attorneys have written, successfully prevented jurors from hearing evidence about his mental health, “under the delusion” that “he would be rescued from prison by white-nationalists — but only, bizarrely, if he kept his mental-impairments out of the public record.”

Roof made his decision, his team argued in the petition, “after the district court told him that counsel could introduce evidence depicting him as mentally ill over his objection.” But there is a disconnect, his attorneys argued, between how such cases have been handled in the 4th Circuit versus other jurisdictions, where “the vast majority of state and federal courts hold otherwise, leaving this deeply personal choice to a defendant.”

Notably, this AP article is only focused on one of three questions presented in Roof's recently filed cert petition. Here are all there issues set forth in this document:

1. When a competent capital defendant and his counsel disagree on whether to present mitigating evidence depicting him as mentally ill, who gets the final say?

2. Does the Commerce Clause authorize Congress to regulate an intrastate, noneconomic, violent offense based solely on the defendant’s pre-offense uses of interstate highways, GPS navigation, the Internet, and the telephone?

3. Should federal courts assess legislation enacted under the Thirteenth Amendment using the same tests that apply to legislation enacted under the Fourteenth and Fifteenth Amendments, where the three Reconstruction Amendments share substantively-identical enforcement provisions?

A few of many prior related posts:

March 2, 2022 at 01:58 PM | Permalink


The short answer to the question posed in the title is no. I'll bet $100 cert is denied. Any takers?

The more serious question in this case is why it's taking so long to impose the only sentence that fits. There is zero doubt that he did it, intended to do it, acted out of hate, and knows right from wrong. The extent of manufactured procedural wrangling for this character is a measure of how unserious we've become.

Posted by: Bill Otis | Mar 2, 2022 3:36:57 PM

Technically, Bill, the sentence has been imposed (and affirmed). I surmise that what you are really asking is that there be some sort of timeline or deadline for capital appeals in the federal system. If you were supreme, what capital appeals deadline/timeline would you seek to impose?

Posted by: Doug B. | Mar 2, 2022 5:19:35 PM

I certainly won't be taking Bill Otis' offer, certainly not with the court we have now or any likely court we shall see over the next year. This question strikes me very much as a spaghetti defense. If someone was competent to self-represent the fact that counsel would have done something different over the defendant's objection is entirely irrelevant.

Posted by: Soronel Haetir | Mar 2, 2022 7:16:06 PM

Doug --

You mean I'm not already supreme? Well phooey.

Yes, you're right, I meant "carried out," not "imposed." Thanks for the correction.

Off the seat of my pants, I would impose a three year deadline from imposition of sentence to its being carried out, with two caveats: (1) capital cases go to the head of the line ahead of everything else on the docket, and (2) the deadline could be extended if but only if there were a reasonably convincing case that the defendant was factually innocent, i.e., that he did not do the act he was accused of doing.

I did a lot of criminal litigation and I never heard of a case you couldn't figure out in three years. The massive majority can be figured out in a small fraction of that time.

Posted by: Bill Otis | Mar 2, 2022 8:15:05 PM

I am not sure that the three-year time line is realistic.

I think my state does a decent job of expediting at the appellate level, but even under its time-line: 1) court reporter has three months to prepare the transcript; 2) parties have a combined 105 days to brief the case (60-30-15); 3) court then has to hear argument and right an opinion (typically having to deal with a large number of claims on the appeal). Because capital cases are long and the court reporter has to prepare transcripts when the court is not in session, it is not unusual for the transcript to take longer than the 90 days. Looking at a case in which I represented the State in the initial stages of federal habeas, they actually managed to get the transcript done without an extension, but the briefing took an extra four months. While the argument was set relatively quickly after the end of briefing, it took four months to write the opinion. In short, the direct appeal took approximately fifteen months. While potentially that could be improved slightly, I do not see much room for improvement.

The real delay is in state and federal collateral review.

In my state, the defendant has ninety days after the conclusion of the direct appeal (i.e. mandate) to start their state collateral review. That time is not extended by a cert petition. Counsel is supposed to be appointed within thirty days and counsel is given 120-days (up from 90-days) to finalize the claims for relief. The trial court then has to schedule a hearing (frequently a multi-day hearing) and issue written findings after the hearing. While I know the defense bar would like a longer period to finalize the claims, the reality is that the public defender system can (and often does) assign an attorney to the defendant while the direct appeal is still pending. Realistically, done properly, the trial court part of state collateral review could be completed in one year. In the case noted above, it took three years.

Then, there is the appeal from the denial of state collateral review. The same time standard applies as above. Again, the patter was similar (about four months extension of the briefing schedule, but a quick argument and opinion resulting in a total of fifteen months on appeal.

In short, I think three years is a reasonable period for resolving the state part of a case. Presumably for a federal prisoner (assuming not grant of certiorari), it would be possible to be done in three years. For a state prisoner, there will be some additional time tacked on for federal habeas.

At the federal level, for state prisoners, it would help if federal courts would be willing to find that states have properly opted in on capital cases and follow the accelerated rules. Even under the "normal" rules, the petition should be filed within one-year. Then (giving time for the State to respond and the inmate to file his reply with amended petitions allowed only under exceptional circumstances), it should be possible to schedule the hearing and issue findings within a year, and the appellate rules for the federal system is not that different from my state rules so an additional year to have an appellate opinion. Even giving time for cert, that is 3-4 years after the conclusion of the state process.

In short, I would say a reasonable time line is 3-5 years for federal prisoners, and 7-9 years for state prisoners.

Posted by: tmm | Mar 3, 2022 11:40:35 AM

Just FYI. In the case that I worked on (over six years ago when the federal habeas proceeding was just starting), it has now been fourteen years since sentence was imposed. The cert petition on the federal habeas is on the March 18 conference. So, assuming that cert is denied, it will be just under fifteen years by the time that the execution is scheduled and carried out.

Posted by: tmm | Mar 3, 2022 11:46:00 AM

tmm --

Timelines don't fall out of the sky. We create them. We also allocate (or decline to allocate) the resources that could make for a much more efficient system. Where there's a will -- a will to do better, that is -- there's a way.

The present amount of delay in capital cases (running maybe 14 or 15 years on average, IIRC) is scandalous and bespeaks a complete lack of seriousness. One thing we could do for starters is require courts to prioritize, and then expedite on a stated schedule, the disposition of such cases, and give them the resources to do it.

As an aside, I read your comments with interest because they are always well informed, on topic, bereft of all the personal stuff, and fair minded. I hope you will say more.

Posted by: Bill Otis | Mar 3, 2022 1:54:37 PM

death penalty should be abolished

Posted by: k66 | Jun 23, 2022 4:51:43 AM

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