Arguing federal charges are unconstitutional, Dylann Roof lawyers seek dismissal

Dylann Roof is seen after his arrest last year in North Carolina.

As one racially charged trial in Charleston ended, another is set to begin next door.

The nation’s eyes will shift Wednesday from a white police officer's trial for murder in the shooting death of a black man to the start of a self-avowed white supremacist’s hate crimes trial for allegedly gunning down nine black worshipers in a church.

On Monday, a judge declared a mistrial in the case of former North Charleston police officer Michael Slager, charged in the shooting death of an unarmed black man, Walter Scott. On Wednesday morning, a judge is expected to impanel a jury to hear Dylann Roof's federal death penalty trial.

Yet, between those two days, in a case that has felt like riding a roller coaster for weeks, Roof's attorneys on Tuesday asked the judge to delay the trial's start given the freshness of Slager's hung jury.

"The Slager mistrial, declared less than 48 hours before the scheduled start of the trial in this case, is highly likely to create undue pressure on the jury to compensate for the judicial system’s apparent failure to punish Mr. Slager by imposing a harsher punishment here," defense attorneys wrote.

U.S. District Judge Richard Gergel blasted the motion when he denied it just hours later, calling the argument "utterly far-fetched and illogical to the Court."

That means shooting survivors and loved ones of those killed will pack into a fairly small federal courtroom in downtown Charleston on Wednesday after all. From wooden pew-like benches on either side of an aisle, they will hear how a man who hated black people reportedly targeted and killed nine while they studied Scripture in the historic Emanuel AME Church.

New legal terrain

Those packed into the courtroom, and those listening in two overflow rooms, also will witness the plowing of new legal soils in Roof's case:

• If Roof gets the death penalty, he apparently will become the first in America to receive the ultimate punishment in a federal trial involving hate crimes. The federal government has sought execution in hate crimes trials seven times before. Five resulted in guilty pleas; two received life sentences, according to the Federal Death Penalty Resource Counsel Project's database.

• Experts couldn't point to another federal death penalty case in which a judge agreed in advance to let attorneys represent a defendant in one phase of the trial but the defendant to act as their own attorney in another. Roof's defense team will represent him during the guilt phase of his trial, but he will act as his own attorney for the penalty portion.

"In federal cases, divided representation is unheard of," said Kevin McNally, director of the Federal Death Penalty Resource Counsel Project.

• Never in modern times have both state and federal prosecutors sought someone’s execution simultaneously, experts said. Roof's federal jury will be impaneled Wednesday. His state death penalty trial is scheduled to begin less than six weeks later.

After police in North Carolina arrested Roof, state prosecutors quickly charged him with nine murders. Two months later they announced intent to pursue the death penalty.

U.S. Attorney General Loretta Lynch announced that Roof had been indicted on 33 federal charges, as well. Because South Carolina is one of five states without a hate crime law, “the state charges do not reflect the alleged hate crimes offense,” Lynch said.

Then almost a year went by.

After much anticipation, federal authorities in late May announced they too would seek Roof's execution. Assistant U.S. Attorney Jay Richardson, chief prosecutor in Roof's case, filed the federal death penalty notice. In it, he noted the killer tried to incite violence, expressed hatred of black people, killed nine including three elderly people, lacked remorse and targeted people at a church to magnify the impact of the killings.

The move was a relatively rare move. 

The federal government reinstated capital punishment nearly three decades ago, but out of thousands of eligible cases, the U.S. Attorney’s Office has authorized prosecutors to seek execution in only about 500. Of those, three men were executed, the most recent happening 13 years ago.

The federal death penalty notice was especially unusual given state prosecutors already had announced plans to seek an execution. Never before have federal and state prosecutors pursued death penalty cases against the same person at the same time, said Robert Dunham, executive director of the Death Penalty Information Center in Washington, D.C. 

Typically, state and federal prosecutors agree which case should take a back seat. 

For instance, in the recent Boston Marathon bombing case, the federal government successfully pursued Dzhokhar Tsarnaev's death. Local prosecutors then wanted to pursue a case, as well, but the idea "was roundly criticized and dropped," Dunham said.

In Roof's case, the state announced its intentions in Roof's case first. But his federal defense team requested a speedy trial and leapfrogged over the state's Jan. 17 trial date.

Jurors and lawyers

A group of 67 prospective jurors — mostly women, mostly white — will arrive in a federal courtroom Wednesday after Gergel culled the 3,000 people initially summoned to decide Roof's fate.

Of the group, 22 percent are black. Nearly 75 percent are white. Women dominate the pool. About 70 percent of the prospective jurors are female; 30 percent are men.

From them, the judge will impanel 12 jurors and six alternatives. 

Opening statements and testimony then will begin, likely with survivors' testimony about the evening 12 people, including a child, gathered to study one of Jesus' parables. When the group bowed for closing prayer, Roof reportedly pulled out a .45-caliber Glock and fired 77 shots.

The Rev. Clementa Pinckney, who was Emanuel's pastor and a state senator, and eight others soon lay dead. Pinckney's wife and 5-year-old daughter cowered under an office desk through the terrifying sounds of gunfire.

Felicia Sanders and her 11-year-old granddaughter played dead amid the carnage. 

And Polly Sheppard, a 70-year-old nurse, hid beneath a table praying as the gunman stepped toward her. 

“I am going to let you live so you can tell the story of what happened,” he told her.

Last week, when Roof was acting as his own attorney, it appeared he would be the one to cross-examine survivors called to testify. He sat at the defense table during jury questioning still garbed in his grey striped prison jumpsuit, asking questions and making objections as the victims' loved ones and survivors watched on.

But then on Sunday, Roof backtracked. He asked Gergel to allow his defense attorneys to represent him again but only during the guilt phase, when prosecutors must prove he committed the crimes.

Roof didn't, however, entirely backtrack.

He asked to resume acting as his own attorney during the penalty phase, when prosecutors will work to show the enormous impact of the deaths on victims' families and the survivors in an effort to garner a death sentence. It also is when the defense can show mitigating factors to argue for life in prison, typically issues such as serious mental illness or a history of abuse. 

Gergel agreed, saying Roof had a constitutional right to decide his representation.

Issues of race

Beyond the new legal ground navigated, Roof's trial promises to sting deep racial wounds in a city that once served as the nation's slave trade epicenter.

A conversation about that history is desperately needed, said Harlem, N.Y.-based attorney Anthony Ricco, who has served as lead counsel on about 45 federal death penalty cases and teaches at the Fordham School of Law. 

“I’ve always viewed this case as a premier opportunity to litigate racism and the destructive issues of race,” Ricco said. 

The trial could illuminate how Roof, after scanning white supremacist sites online, fomented such violent hatred for blacks that he headed for Charleston and targeted an AME Bible study with hopes of starting a race war. 

If Roof represents himself in the penalty phase to spew racist venom, it could inflame tensions left taunt by police officer Slager's mistrial on Monday. Yet, learning more about Roof's virulent ideology also could help people grasp how a person comes to those views, Ricco said.

"In an odd way, the trial has potential to educate people about the poison of racism," Ricco said. “Dylann Roof’s case is about racism and a sickness so powerful that a young person’s mind was poisoned.”

The "poison" then harmed so many others, from the victims’ families and the survivors to the church and the broader Charleston community to Roof’s own family and friends. But how? How does a man barely old enough to buy a beer form such violent racist views and then act on them?

That's what Ricco and millions of others across the nation hope to understand after the trial.

“Unraveling the why is our spiritual release of racism,” Ricco said.

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."