Dylann Roof faces second competency hearing

Dylann Roof poses with a Confederate flag in his bedroom in Eastover. The photo is among dozens Roof took to accompany an online racist manifesto he posted before the Emanuel AME Church massacre in June 2015. 

A judge ruled Monday that Dylann Roof is competent to represent himself and proceed with the penalty phase of his federal hate crimes trial, where he faces a potential death sentence for killing nine black parishioners at Charleston’s Emanuel AME Church.

U.S. District Judge Richard Gergel issued the brief ruling after a closed, all-day hearing that drew from a weekend psychiatric evaluation Roof underwent at the Charleston County jail. It marked the second time in six weeks that the judge found Roof mentally competent to stand trial after defense attorneys raised questions about the convicted killer's psychiatric state.

Monday's hearing came on the eve of the trial's penalty phase, when jurors will decide whether the 22-year-old white supremacist gets a death sentence or a life prison term for the nine killings in June 2015.

Roof has sidelined his noted defense team for that portion of the trial and will represent himself. The judge did, however, grant a defense request to postpone the proceeding from Tuesday morning until Wednesday at 9:30 a.m.

Monday's hearing followed a brief session in which Gergel heard objections to his plan to close the proceeding from public view. He then did bar the public from the competency hearing despite objections from The Post and Courier and other news organizations. 

Attorney Jay Bender, who represents the newspaper and other media outlets, told the judge the move was unnecessary. The jury already has been admonished to avoid information about the case outside of the courtroom, and Roof has no privacy rights sufficient to close the hearing to the public, he said.

"You're closing out the community from this important part of the proceedings," Bender said.

But Gergel said he saw two choices given the pervasiveness of social media, the immediacy of today's news coverage and the many ways jurors can be exposed to details that will be divulged during the competency hearing. He could close the hearing or sequester jurors to ensure they don't inadvertently hear information that could taint their decision over whether Roof lives or dies for his crimes.

"I can't walk down the street without hearing people talk about this case," Gergel said. "This tragedy profoundly affected this community."

Bender countered that is all the more reason to open the hearing, so the public can understand what is happening in their criminal justice system and why. "There is a wound in the community," he said, and these proceedings toward justice represent an opportunity for "catharsis."

Gergel, however, held firm. Information discussed in the hearing is so sensitive that it has a strong likelihood of prejudicing jurors if they hear it. Yet, he didn't want to sequester the jury because studies have shown it to be very stressful on the 12 people already charged with such a huge task.

"There is no civic responsibility more serious than this," Gergel said. 

Hundreds of filings in the case, and Roof's previous competency hearing, already have been shrouded from the public despite intense interest in the psychiatric state of a young man who developed extreme racist views online and then drove to a black church to gun down nine unarmed worshipers who welcomed him into their Bible study. 

However, a larger issue also is at play, Gergel said, one that courts increasingly will be forced to grapple with.

In today's world of immediate news dissemination and social media, it has become much harder for jurors to avoid potentially prejudicial information, such as Roof's mental state, even if a judge warns them to avoid news coverage. Merely glancing at Facebook or Twitter, listening to the radio or passing by a television can expose them to sensitive information not introduced in court. 

It's not like in days gone by when newspapers came out once a day and the TV news came on only at certain times. News today spreads much more quickly and widely. "I'm talking about a whisper becoming a shout," said Gergel, who repeatedly interrupted Bender in court.

However, Bender argued that isn't the issue. Jurors are questioned before their selection about whether they can decide a case based only on what they hear in court and disregard anything else they learn. Those who cannot do so should be disqualified. 

“The question is not whether the jurors are unexposed to extrajudicial comment, but are they influenced by it? Will they be controlled by it?” Bender said after a hearing over whether to close the competency proceeding.

Assistant U.S. Attorney Jay Richardson, lead prosecutor in the case, also argued to open the competency hearing so that the survivors and victims' loved ones can observe. He suggested Gergel let them into the hearing but order them not to disclose what they hear to anyone.

The judge denied that but promised to release a transcript of the competency hearing about 10 days after the jury reaches a verdict.

"They're going to know what happened," Gergel responded. "It's just question of when."

This marks Roof's second mental competency review. His attorneys sought the first one just as jury selection was set to begin in November.

Last week, they again asked Gergel to review Roof's ability to understand the charges against him and the possible punishments after Roof announced he planned to call no witnesses or offer any evidence in the sentencing portion of his  trial. Although he let his widely acclaimed defense team represent him during the guilt phase of his trial, Roof now is representing himself through the penalty phase.

“This defendant’s announcement that he will not defend himself against the death penalty — following a government presentation that is expected to involve more than 38 additional witnesses and hundreds more exhibits — raises in especially stark fashion the question of whether the defendant is actually unable to defend himself," wrote his former lead attorney, David Bruck, now a mere adviser, in a filing. "At a minimum, it suggests that he may lack the mental capacity to assume the role of his own lawyer."

Roof's defense team had indicated earlier in the case that they planned to introduce mental health evidence during the penalty phase of his trial in hopes of convincing the jury to spare his life. However, Roof then sought to represent himself. After taking the helm of his defense, he told Gergel that he did not, in fact, plan to introduce such evidence.

Roof was convicted last month of 33 federal charges, including hate crimes and religious rights violations, in the June 2015 shooting at the South's oldest AME Church. On Wednesday, the jury that found Roof guilty will begin to weigh his punishment. 

Roof has said he plans to offer an opening statement and a closing argument. On Monday, Gergel also ordered that Roof not be allowed to approach the jury, witness stand, or the bench while representing himself. He also will sit in a seat at the defense table farthest from the jury and the shooting survivors and victims' loved ones.

Contact Jennifer Hawes at (843) 937-5563 or follow her on Twitter @jenberryhawes.

Jennifer Berry Hawes is a member of the Watchdog and Public Service team who worked on the newspaper's Pulitzer-Prize winning investigation, "Till Death Do Us Part."