Public defender: Solicitor ‘reckless’ in quest to try Dylann Roof

Ninth Circuit Public Defender Ashley Pennington represents Dylann Roof during a bond hearing on June 19, 2015.

Charleston’s top public defender said in a court filing Wednesday that a state prosecutor’s attempt to try Dylann Roof before federal authorities is “reckless and shortsighted.”

Ninth Circuit Solicitor Scarlett Wilson asked a state judge last month to set Roof’s death penalty trial sooner than the Nov. 7 federal proceeding. She cited legal rules calling for the jurisdiction that first charges a defendant to first impose a sentence.

But Circuit Public Defender Ashley Pennington called her argument “inaccurate and misleading.” Such a shuffle risks violating Roof’s due process rights, which could jeopardize the trial’s outcome on appeal, and the legal fight over it has created an “unseemly spectacle,” he said.

The effort “to move the trial even earlier is just the sort of reckless and shortsighted ... tactic that has led to reversals and retrials,” Pennington wrote in the document. “Altering the established trial dates ... will serve no interest but her own desire.”

The filing is the latest salvo amid a conundrum posed by two jurisdictions seeking Roof’s execution at the same time — a first in history. A judge did not immediately rule on whether to adjust the Jan. 17 state trial date.

“We stand on our (memo supporting the change) and believe it accurately highlights legitimate issues in this case,” Wilson said Wednesday. “The defense’s response does not alleviate my concerns.”

Pennington shed light on how hard state judges also have pushed to try Roof quickly.

In June 2015, Roof was accused of fatally shooting nine black people at Emanuel AME Church. The white supremacist’s hatred fueled his crimes, authorities said. Pennington said he learned when Roof appeared for a bond hearing two days later that the state’s then-chief justice, Jean Toal, had asked a local circuit judge to try the case promptly. The judge, J.C. Nicholson, suggested a March date, only nine months after the shooting. That was too soon, Pennington protested.

The trial was later set for July but eventually postponed to January when Roof’s lawyers said they needed time to finish a mental health evaluation.

Perturbed by the delay in the state case and the defense team’s request for a speedy trial in federal court, where people are less likely to get the death penalty, Wilson asked Nicholson to speed up the process because South Carolina would actually carry out the punishment. The state also has “primary custody” of Roof, Wilson said, meaning that he might have to serve his sentence in that jurisdiction before the federal one.

In his pointed response, Pennington said none of the legal precedents cited in Wilson’s argument support her theory that the state might not give up custody of Roof for a federal death sentence to be imposed. He called the contention “simply ludicrous.”

Pennington added that FBI agents were the first and only investigators to do a recorded interview with Roof after his arrest in North Carolina. Federal authorities, though, didn’t indict him until the next month.

Miller Shealy, a local attorney and former federal prosecutor, agreed with Wilson that it would be unusual for a current prisoner to be transferred to serve a sentence in a different jurisdiction. While the issue sounds like a technicality, Shealy said, it could be problematic later on.

It’s also unusual for the Department of Justice to simultaneously prosecute someone, he said. The agency typically comes in after a state case fails, such as the one that prompted the acquittals of Los Angeles police officers in Rodney King’s 1991 beating.

“Usually, the feds don’t jump in unless there’s a miscarriage of justice,” he said. “It baffles me as to why this is the case that the DOJ jumped in on. As a result, there are too many cooks in the kitchen.”

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