Dylann Roof’s request to represent himself was odd but not unprecedented

The white supremacist accused of shooting nine African-American parishioners at a historically black church in South Carolina will act as his own attorney in federal court, defying the recommended practice of relying on counsel.

U.S. District Judge Richard Gergel reluctantly granted accused gunman Dylann Roof’s request Monday morning. Many people were surprised that he (or anyone) would choose to go it alone in a death penalty trial.

Richard J. Bonnie, a professor of law at the University of Virginia, said the Supreme Court acknowledged that in most cases it won’t be in the best legal interests of clients to represent themselves, particularly given the lack of familiarity with legal procedures and the nature of their rights.

“In a capital case, you cannot imagine the stakes being higher or the risks being greater,” Bonnie told Yahoo News, referring to cases in which there is a potential death penalty. “In general, this does not happen very often in the criminal process at all and certainly only a small percentage of capital cases.”

But there are two distinct reasons defendants in federal cases have the right to represent themselves, and a slew of reasons as to why they might do so.

Fred Smith, a visiting professor of law at Emory University, cited the Judiciary Act of 1789, which expressly allows people to represent themselves in federal criminal cases.

A white supremacist gunman kills nine black churchgoers during a Bible study session at a historic, predominantly black church in Charleston, South Carolina. (Photo: Jason Miczek/Reuters)
A white supremacist gunman kills nine black churchgoers during a Bible study session at a historic, predominantly black church in Charleston, S.C. (Photo: Jason Miczek/Reuters)

“At the time the law was passed it wasn’t particularly shocking because this practice was widely available in the colonies prior to the American Revolution,” Smith told Yahoo News. “It was available for most crimes in British tradition as well.”

Smith, who specializes in federal judiciary and constitutional law, said Roof also has a constitutional right to represent himself. In 1975, during the case Faretta v. California, the Supreme Court ruled that under the Sixth Amendment, people have the right to self-representation regardless of whether they are in federal or state court.

According to Smith, the right was widely available at the United States’ founding and it was present in a lot of state colonies as well. Another argument, he continued, is that implicit in the right to counsel is surely the right to not have counsel. In other words, if you have a positive right (such as the freedom to speak as guaranteed by the First Amendment), then you also have a negative right (freedom not to speak, guaranteed by the same amendment).

“Really, one way of framing the question is, ‘Does someone have a constitutional right not to have a lawyer who they don’t want forced upon them during a criminal trial?’” Smith said. “When you frame it like that, the rationale starts to make sense.”

Authorities said that Roof spouted off racist epithets at the six women and three men he killed at Charleston’s Emanuel African Methodist Episcopal Church in June 2016. Three people survived the attack.

Federal prosecutors are seeking the death penalty. Roof has pleaded not guilty and will now have to personally make that case to jurors.

“What is often the case when a client decides to represent himself is that what preceded it was tension or disagreement between the attorney and the client about how to defend the case,” Bonnie said.

In 2008’s Indiana v. Edwards, the Supreme Court ruled that just because defendants are competent enough to stand trial when represented by counsel does not mean they are competent enough to represent themselves.

On Friday, Judge Gergel ruled that Roof, 22, was competent to stand trial following a 16-hour hearing behind closed doors earlier in the week. Bonnie said it seems likely, in light of the court’s ruling Monday, that one of the reasons — and perhaps the main reason — the competence evaluation was conducted was to determine whether he could make the decision to represent himself.

Colin Miller, a professor of law at the University of South Carolina, said it’s exceedingly rare, especially in murder cases, for defendants to represent themselves.

“My guess might be that by representing himself, the jury might get to see more of him as a person and might, therefore, empathize with him and spare him the death penalty,” Miller said to Yahoo News.

Roof’s attorneys, including his previous lead counsel, David Bruck, will now serve as stand-by counsel. They will be able to assist Roof and take over the defense if the defendant realizes that he’s in over his head.

Miller also said that this opens up the possibility of an appeal if Roof is convicted.

“You could imagine a case where Dylann Roof is convicted and he says, ‘Even though I asked to represent myself, I wasn’t competent to represent myself,’” Miller said. “‘The judge should’ve denied my motion, and therefore I deserve a new trial with competent counsel.’”