Judge refuses to set state’s Roof trial before feds’ case

Circuit Judge J.C. Nicholson speaks with opposing attorneys Wednesday during a hearing about the state’s trial of Dylann Roof.

A judge on Wednesday refused to “take up the state’s battle” and try Dylann Roof before federal authorities.

Circuit Judge J.C. Nicholson denied a prosecutor’s request to move up the trial date, keeping the federal proceeding on track to begin Nov. 7, just ahead of the holiday season.

The judge said that “the horse was out of the barn,” and it was likely too late to change that schedule now. The state’s trial is set to start Jan. 17.

“I’m not the one to fight with the federal government on who tries it first,” Nicholson said during an afternoon hearing in downtown Charleston. “That’s not my job. ... I’m not going to do it.”

Ninth Circuit Solicitor Scarlett Wilson had sought the move to avoid back-to-back trials for the survivors and the families affected by the slayings last year of nine black worshippers at Charleston’s Emanuel AME Church.

To ease their ordeal, Nicholson said he would likely further delay the state’s trial. Both Wilson and Roof’s defense lawyers agreed. The judge was expected to later issue a written order calling for jury selection to start in mid-January with opening statements and testimony weeks later.

Wilson had argued that the state should try Roof first to avoid problems with carrying out his sentence. Roof, a white 22-year-old from Eastover, was indicted on 13 counts in state court and 33 federal charges, including hate crimes. Some of those charges in each case make him eligible for the death penalty, but the federal system is historically less likely to execute people.

After the hearing, Wilson said her concerns about “primary custody” of Roof — a legal concept calling for the state to impose its sentence first — had been largely ignored.

“It doesn’t seem to matter. I’m afraid that leads us to two trials,” she said. “In the long run, I hope I am wrong about this.”

Roof is the first person to be prosecuted in state and federal death penalty cases at the same time, so how the cases and his sentences play out is unknown. Wilson told Nicholson that defense lawyers had unfairly called her “reckless” for fighting for an earlier trial. In documents filed before the proceeding, she said the attorneys’ stance on the issue amounted to “unsupported outrage.”

Nicholson told Wilson that she was not reckless and that he understood her concern. But his courtroom was the wrong place for her argument, he said. He encouraged Wilson to file a motion in U.S. District Court, though Wilson had already expressed her wishes in a letter to the federal judge, Richard Gergel.

“I don’t even know why we’re having this argument,” Nicholson said.

Roof’s lawyers in federal court had asked for a speedy trial — leading to the scheduling dilemma that prompted Wilson’s request for an earlier date. Circuit Public Defender Ashley Pennington, one of Roof’s attorneys in state court, had opposed the move.

“I don’t see any stumbling blocks or impediments to (the federal court) actually being able to commence on Nov. 7,” Pennington said Wednesday.

Problems could arise, though — particularly in selecting a jury. Roof’s lead federal defender, David Bruck, has said he didn’t plan to ask for a trial outside the Charleston area. But he said in a filing Wednesday that it would be “irresponsible to declare an absolute” position because of “unforeseeable new developments” that could change his stance. If an impartial jury cannot be chosen, he explained, the defense team might ask for a change of venue.

If the federal date remains unchanged, Nicholson’s decision Wednesday means that two historic trials are on course to happen simultaneously. A week before Roof’s federal proceeding, the murder trial of former North Charleston police officer Michael Slager is set to begin. Slager, who is white, fatally shot Walter Scott, a black man, during a traffic stop last year.

Both trials are expected to last weeks.

“We’ll just have to play it by ear and see what happens,” Wilson said.

Reach Andrew Knapp at 843-937-5414 or twitter.com/offlede.