Mimesis Law
28 May 2020

Dylann Roof & The Government’s Right To A Jury Trial

June 17, 2016 (Fault Lines) – Dylann Roof is an admitted mass murderer. He confessed to both Charleston police and the FBI that he shot and killed nine people worshipping at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina.

Roof’s actions deeply affected the City of Charleston and the State of South Carolina. His desire to start a race war led to the shooting. The actual result of the shooting was far from war, as the people of Charleston and the victims of the shooting handled the tragedy with a grace not seen much these days.

Prosecution of Roof has been swift and severe. Approximately a year after the shooting, both state and federal prosecutors are lined up to execute Roof as soon as possible. He doesn’t seem to be fighting this outcome particularly hard.

Last fall, Charleston County Solicitor Scarlett Wilson announced she would seek the death penalty against Roof. She also asked that her case be heard before the federal civil rights case against Roof.

In a letter late last week to the judge presiding over the federal case, 9th Circuit Solicitor Scarlett Wilson said she prefers that the state bring its death penalty case against Roof first.

“That is our preference,” Wilson wrote in a letter late last week to U.S. District Judge Richard Gergel, who is presiding over the federal case. “I appreciate any consideration you may give us in this regard.”

She wrote that she could not recall a time when the U.S. Department of Justice pursued a case while the state was still prosecuting the same defendant.

The cynical out there may be wondering what’s the point of two prosecutions? Especially in light of the state’s intent to seek the death penalty. It can only be imposed once, and it supersedes any other punishment that might be imposed. If the state imposes the death penalty, it seems a little silly for the federal government to get in on the action with just its sentencing guidelines.

Last month, the Department of Justice upped the stakes, announcing it too would seek the death penalty against Roof. Attorney General Loretta Lynch was short and sweet in making the announcement:

Following the department’s rigorous review process to thoroughly consider all relevant factual and legal issues, I have determined that the Justice Department will seek the death penalty.  The nature of the alleged crime and the resulting harm compelled this decision.

The decision results in much more than a piling on by the feds. Roof now faces a federal death penalty trial before the state will have the opportunity to try him for the same thing. According to news reports, Judge Gergel intends for the federal trial to go forward this fall. He seems unwilling to entertain delay in the case.

Both sides said they will be prepared for court by the Nov. 7 start date. Gergel said the chance for delaying the trial was slim and mentioned that only a “shot in the dark” would lead to a continuance.

Roof filed a jury trial waiver last week, notifying the judge he did not want to have a jury of his peers decide whether he is guilty, and perhaps more importantly, whether he deserves to die. While the right to a jury trial is very personal to Roof, the waiver isn’t. Under federal rules of criminal procedure, the government must consent to a defendant waiving his right to a jury trial.

The government objected to the jury trial waiver. The judge correctly ruled there must be a jury trial if the government wants one.

“The trial will be conducted by jury,” Gergel wrote, “and, should defendant be found guilty of one or more capital crimes, the sentencing hearing will be conducted before a jury.”

The Supreme Court has upheld this, so there is no real legal issue with the government’s objection and the judge’s ruling. The government can do this, but the question is: why?

Prosecutorial decisions can be based on the practical or the philosophical. Practically, the government should consider the logistics of a trial. Sometimes witnesses disappear or evidence is lost or too much time passes. Sometimes the costs of a trial far outweigh any possible result. Philosophically, prosecutions can be used to send a message, or make a point to society. This is usually a bad idea.

What is going on with the Roof case? Practically, the feds can’t kill Roof any deader than the state. Their case isn’t any different from the state’s case. A federal death penalty case costs eight times as much as a regular federal case. Putting aside the money, a jury trial in this case is far more likely to turn into a long, drawn out spectacle. Practically, it’s a bad idea.

Philosophically, this case doesn’t send much of a message. The state was looking to impose the death penalty. We can go out on a limb and say his chances of acquittal are nil. So the jury’s real job is to determine whether Roof dies for what he did. And that was already being handled. But the feds want to make sure the hate crime aspect of this shooting is addressed.

South Carolina does not have a hate crime law, and federal officials have said they believe that a murder case alone would leave the racial component of the crime unaddressed.

“The parishioners had Bibles,” [Attorney General] Lynch said. “Dylann Roof has his .45-caliber Glock pistol and eight magazines loaded with hollow-point bullets.”

What purpose does focusing on the racial component of this shooting serve? Drawing attention to race was Roof’s idea. Ignore it, let him know murder is murder, and give him no special recognition for his crimes. Roof wanted to start a race war. But he knew there wouldn’t be any race war over what he did. What he really wanted to be was a martyr.

The state’s murder prosecution treats Roof like just what he is. A murderer. He killed more than normal. He got more news coverage. But at the end of the day, he is just a murderer.

The federal hate crime prosecution, on the other hand, is not only unnecessary, but it gives him what he wants. His own little race war in a federal courtroom. And that’s where the feds get it wrong. Concentrating on the “hate crime” gives effect to the hate. He took lives. Society punishes that. But hate? He can hate who he wants. Ignore it, ignore his views, and ignore him. Punish his acts.

Don’t force an expensive, drawn out jury trial. Roof’s actions were horrible and the results tragic. But the response to the shootings, unlike so many other public responses, has been admirable. Roof intended to start a race war and instead brought a city and a state together. His attempt at notoriety has failed. If he deserves anything, it’s to quietly disappear to his fate with as little fanfare as possible.

A bench trial helps accomplish that, as they tend to be less dramatic and more pragmatic. The federal government has the right to step into this case and it has the right to force a jury trial. But just because it can doesn’t mean it should.

8 Comments on this post.

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  • TMM
    17 June 2016 at 10:43 am - Reply

    As to the reasons for a federal prosecution, there is, of course, one less round of review after a federal conviction — direct appeal followed by federal collateral review on a federal conviction as opposed to direct appeal, followed by state collateral review, followed by federal collateral review on a state conviction.

    As to the issue of bench trial vs. jury trial, there is the issue of the validity of a jury waiver. In capital cases in which there is either a guilty plea or a bench trial, the failure to have a trial by jury often becomes a focus of the later litigation. Since there is no right to a bench trial or a guilty plea, simply proceeding to a jury trial eliminates that issue. Additionally, while judges are required to independently find whether a death sentence is appropriate, there is the psychological thumb on the scale of a jury having already made that recommendation.

  • Richard G. Kopf
    17 June 2016 at 1:56 pm - Reply


    There are many reasons why the federal government generally does not like bench trials. That I get.

    But, what I don’t understand is why the government is demanding a jury trial in the face of the defendant’s waiver if DOJ seriously thinks about the best interests of the families and friends of the victims and the community at large given the horrors of this particular case. It worth remembering the overwhelming evidence against the defendant–the case is likely a slam dunk.

    A bench trial would be much quicker and much easier to review on appeal and far less likely to generate a reversible error recognizable in a direct appeal or subsequent 2255 motion. If by some miracle, the killer didn’t get the death penalty, the state could try him again with the death penalty still a viable option.

    Sometimes doing the easy and practical thing is best for everyone even when lofty principles are at stake. All the best.


    • Greg Prickett
      17 June 2016 at 2:22 pm - Reply

      I’m not going to comment on the federal part of this, but will note that in Texas, both the defendant and the State have a right to have a jury trial.

      In most cases where the defendant requests a bench trial, the State will waive a jury, but I’ve seen cases where they would not.

    • Keith
      24 June 2016 at 12:23 pm - Reply

      Do you have some good info on why the Gov’t should have a right to a jury trial? The Judge is picked by the Government. The Judge is approved by the Government. WI can understand the need for the defendant under the 6th, as the jury can be a check on system. But what’s the logic when the defendant wants to waive the jury trial to require a jury trial?

  • Matt Norwood
    17 June 2016 at 2:33 pm - Reply

    I agree that it’s a bad idea to treat Roof any different from any murderer, but the government seems intent on perpetuating bad incentives for those who kill with a political purpose. If the 9/11 hijackers had been treated like run-of-the-mill murderers, just think about the problems we wouldn’t be dealing with today. It’s almost as if the state benefits from encouraging generation after generation of young men to fancy themselves martyrs fighting a holy war.

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