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Roof is representing himself in court against the advice of the presiding judge, Richard Gergel. And by doing so, Roof will likely go the way of other self-represented defendants like Joan of Arc, Jesus, Socrates and Ted Bundy: he's probably going to be convicted and killed.
But what many people don't understand is that the judge had no choice but to let Roof represent himself. Since the Supreme Court decided Faretta v. California in 1975, the right to represent oneself is absolute regardless of intellect or educational attainment. Requests to relinquish counsel "must be honored out of that respect for the individual which is the lifeblood of the law."
Because it's likely to be little more than a spectacular suicide, the Roof trial should get us to admit that the lifeblood of the law has clots in it. Unprepared defendants shouldn't be allowed to represent themselves in capital trials; the Supreme Court precedent established in Faretta needs to be overturned or modified in a meaningful way.
I wasn't as successful as Dylann Roof. In 2007, I tried to represent myself in a criminal trial but was denied, Princeton degree and two years of law school notwithstanding. The judge claimed that, because my request came after jury selection but before the start of the state's evidence, it was a delay tactic and made my motion untimely. I hadn't asked for a continuance and was prepared to start right away.
I had a lawyer forced upon me, one who admitted she hadn't read the police reports and went on to advise the jury that there was no reasonable doubt about my guilt. I ended up being convicted of ten felonies and four misdemeanors and sentenced to five years in prison for identity theft-related crimes, but without a lawyer I might have been sentenced to the maximum on every charge consecutively, which was 185 years in jail. I wasn't facing the death penalty and the judge assigned to my case still wouldn't let me represent myself.
Scholars, judges and attorneys have long seen self-represented defendants as calves pulling their own leads to slaughter. Accordingly, they've chipped away at Faretta with decisions like the one in my case. Courts look for ways to deny requests for self-representation because they know the unfairness that can ensue. Federal circuit courts are actually split on what constitutes a valid self-representation request. The Supreme Court itself curbed the Faretta right in 2008 in Indiana v. Edwards when it held that defendants can be competent to stand trial yet not competent to represent themselves.
Whether self-representation would hurt every defendant who engaged in it is debatable. The limited evidence we have on the number of self-represented defendants who win is encouraging. But many of those successes come in cases where lethal injection isn't a possible penalty. Every self-represented person in a capital case has lost.
And yet we still allow defendants like Dylann Roof to act as their own attorneys, despite their obvious inability to do so. Consider the case of Scott Panetti. Panetti, a veteran diagnosed with schizophrenia, was allowed to represent himself at trial on charges that he murdered his in-laws in Texas. He wore a purple cowboy suit during the trial, tried to subpoena Jesus Christ and showed the jurors scars that he claimed deceased President John F. Kennedy had healed with coconut milk. As expected, he was convicted and sentenced to die. His execution was halted, but he remains on Texas' death row today. Those courts held that the right to self-representation as established in Faretta was absolute, as absolute as the mockery of the justice system they made.
The indignities posed to Roof and Panetti should be enough to convince us that Faretta is bad law. Saying that minimally educated or mentally ill criminal defendants who face lethal penalties must be free from government intrusion in the form of counsel is the same thing as saying suicide is part of individual liberty. While it may be true, it contradicts our country's alleged respect for life. What is judicially permissible may not be moral.
Besides, the legal landscape in the United States has changed since Faretta was decided. At the time the opinion was written, in 1975, the death penalty had been ruled unconstitutional three years earlier, so the justices might not have weighed the right to self-representation against the capital punishment that would await many defendants at the other end of their pro se appearances. The death penalty was reinstated the year after Faretta became law. In 1977, Gary Gilmore became the first person executed in 10 years.
A total of 1440 people have been executed in the 40 years following the Faretta decision.
It's true that lawyers don't always provide the protection that the Constitution guarantees. It happened to me and is happening in a case now pending before the Supreme Court. As he was facing the death penalty for murdering an ex-girlfriend and her friend, a black defendant, Duane Buck, never asked to be his own lawyer but was assigned one counsel who was once described as having "perhaps the worst record of any capital lawyer in the United States." In the sentencing phase of the trial, Buck's own lawyer presented expert testimony that black people are inherently dangerous. Buck was sentenced to death but may be saved by a Supreme Court decision this term. As was the case in my trial, it's hard to see how self-representation would have made things worse for Buck.
Removing self-representation as a possibility in capital cases could and should be corrected for with some type of minimum standards for capital defenders. Few defendants in death penalty trials can afford a lawyer. The lawyers that are appointed for them are often unprepared, unqualified and otherwise problematic. A 2000 analysis of 461 capital cases found that 25 percent of death penalty defendants in Texas were represented by attorneys with disciplinary histories. One-fifth of people who were executed in Washington state were assigned counsel that had been or was later disbarred. The qualified attorneys who should be appointed need to be adequately compensated, but they're not.
This denigration of the right to effective assistance of counsel is what makes it easy to allow defendants like Dylann Roof to represent themselves. If appointed counsel won't do much better, why not let people exercise their rights under Faretta and get themselves killed? Especially when the trial will add glorious sound bites and scenes of an allegedly racist killer getting to cross-examine his African-American victims.
In the name of individual liberties that we've already stopped protecting, we will watch Roof's slow, elaborate, taxpayer-funded self-harm unfold. The trial of the Charleston church shooter places us at a crossroads of Constitution and conscience. If we overturn Faretta v. California and prevent defendants in capital cases from defending themselves while providing them with qualified and paid counsel, we won't have to choose.