A decisive but little understood part of the high-profile Dylann Roof federal death penalty trial, selecting a jury, begins in earnest Monday at the historic courthouse in downtown Charleston.
Picking 12 jurors likely will be a long and tedious process, said S.C. lawyers who have tried death cases before. The 12 will decide, first, whether Roof – a self-proclaimed white supremacist from the Columbia area who is accused of killing nine African-Americans at a Charleston church in June 2015 – is guilty, and second, whether Roof should be put to death or spend life in prison
“This is the most challenging jury selection in the American legal system,” said Johnny Gasser, now in private practice in Columbia but who has tried 10 death penalty cases as first a state prosecutor and then a federal prosecutor.
“There’s nothing like it,” said Gasser, who also served on the U.S. Attorney General’s Death Penalty Review Committee. “And cases don’t get any more high profile than the Roof case.”
Roof’s lawyers have said he would plead guilty to killing nine people if he could be sentenced to life in prison. So in a trial where guilt is all but established, defense attorneys will have one focus: saving Roof from the death penalty.
Since defense attorneys need just one vote to achieve their objective – saving the defendant’s life – defense attorneys search not only for a juror likely to vote for a life sentence but also a juror strong enough to stand up to other jurors.
Unlike in state court, in a federal death penalty case, a jury’s unanimous vote for death is binding on presiding Judge Richard Gergel, who would then formally impose the sentence.
In recent weeks, potential jurors who obviously couldn’t be on the jury for various issues – because of the essential nature of their job or because they are a sole caregiver or have health restraints – already have been excluded.
During the more intense jury selection phase that begins Monday, individual jurors are likely to sit on the witness stand and be questioned, first by Judge Gergel, and then, possibly, by defense and prosecution lawyers.
No one knows how long this phase – called voir dire, or preliminary questioning – will take. Estimates are from two to five weeks.
“You can only examine a certain number of jurors each day,” said Columbia defense attorney Jack Swerling, who recalls that selecting a death qualified jury in the 1983 case of the notorious multiple murderer Donald “Pee Wee” Gaskins took four weeks.
“Forty-five minutes to an hour per juror is not unusual,” Swerling said.
Prospective jurors’ attitudes on race also may be probed, lengthening the questioning process, Swerling said, since Roof is accused of deliberately killing African-Americans to try to start a race war. “I would be shocked if lawyers didn’t pursue those kinds of questions as to whether that would influence a juror’s thinking.”
In the Roof trial, from a pool of 512 potential jurors, Judge Gergel has ordered 20 prospective jurors to report for questioning each day until a total of 70 potential jurors are found to be qualified.
From that 70, 12 jurors and six alternates will be chosen.
The trial will have two phases.
First, the jury will hear evidence on Roof’s guilt or innocence and give its verdict. Then, if a guilty verdict is returned, the same jury will hear evidence on whether Roof should be put to death or get life in prison.
The stated goal for both prosecutors and defense is to put open-minded people on the jury – people who don’t have hard and fast opinions on Roof’s guilt or innocence and his ultimate punishment.
“You’re trying to get people who haven’t made up their minds,” Swerling said, explaining that jurors will likely be asked what publicity they’ve been exposed to in the incredibly high-profile case and whether they can decide the case based on evidence in the courtroom.
That means to sit on Roof’s jury, a potential juror has to assure the court he or she hasn’t been swayed by publicity about Roof’s guilt or innocence or, if he is found guilty, how he should be punished.
If Roof is found guilty, the trial then moves to the life sentence or death penalty phase.
Prospective jurors can expect to have their thinking and beliefs on the death penalty probed extensively.
“We’ve gone through a whole morning and not even gotten one juror qualified,” said Gasser, explaining how drawn out that process can be.
Prosecutors and defense lawyers have different objectives. The defense wants jurors who will vote for a life sentence without parole, while prosecutors want jurors who will vote for death, said Chris Adams, a Charleston defense attorney who has participated in some 40 death penalty cases and was a co-founder of the National College of Capital Voir Dire, which trains death penalty lawyers on what it calls “the art and science of capital jury selection.”
Finding qualified jurors under that standard is an elusive goal, Adams said.
In any death penalty jury pool, perhaps one-third of the potential jurors don’t believe in capital punishment, Adams said. And another large group not only believes in capital punishment, they would believe it exists for crimes as heinous as the ones Roof is accused of, he said. The first group would never vote for death; the second group always will once a defendant is convicted of multiple counts of murder, he said.
“Those two groups combined are approximately 80 percent of the people, and those views tend to be strongly held moral views,” Adams said. “Consequently, these prospective jurors are not eligible to serve in a capital case.”
The optimal defense juror is one with mixed feelings, who is open to considering the death penalty in some cases but who would be able to impose a sentence of life without parole after considering the entire life history of a defendant and the realities of a life-without-parole sentence, Adams said.
“It’s a rather slender selection of people who will be able to serve as a jury in this case, which brings up the question of whether it’s a fair cross section of society,” Adams said.
A ‘detailed, personal snapshot’
A prospective juror’s beliefs on the death penalty are elicited by the court through the posing of hypothetical questions.
“If a potential juror says, ‘I’m pretty sure I’m going to give the death penalty (if someone is found guilty of murder),’ the job of the prosecutor is to rehabilitate that juror, to bring them back to the center and show they could listen to evidence that would show the defendant should get life in prison, and that they could, if circumstances warranted, vote for life in prison,” Gasser said.
Conversely, Gasser said, if a potential juror says, ‘I don’t know if I could sign that death form,’” or “I could never give the death penalty” – “the job of the defense lawyer is to rehabilitate that juror to push them into the middle ground, to get them to say they could envision a set of circumstances where they would give the death penalty.”
If a juror is obviously locked in to one extreme position or the other on life or death, the judge is likely to excuse that juror.
Under a U.S. Supreme Court ruling, jurors are not be allowed to serve on a death penalty case if their objection to the death penalty “would prevent or substantially impair the performance of their duties.” That means any juror who is opposed to the death penalty in all circumstances would be excused by the judge.
Potential jurors who will be questioned Monday have filled out extensive questionnaires where they were asked about all kinds of things, including what bumper stickers they have on their cars, what magazines they subscribe to, what organizations they belong to and where they go to church, said Gasser, who has tried three federal death penalty cases.
“You get a very detailed, personal snapshot of perspective jurors,” Gasser said.
In a capital trial, all 12 jurors must agree on the death penalty.
If one juror objects to the death penalty, that is a victory for the defense because the jury is then hung. In such as case, the judge must give the defendant life in prison.
Swerling said that during the upcoming questioning, jurors also will be asked this question:
“Defense lawyers want to know if you can vote for a life sentence, are you the type of person who can stand against the other 11 jurors who want the death penalty – or will you fold? Will you be strong enough to hold out?”
5 crucial questions
Here are 5 crucial questions experts say potential jurors could face:
▪ Would you always vote for the death penalty if a defendant killed numerous people?
▪ Would the race of the defendant, or the victims, make you more or less likely to vote for the death penalty?
▪ Would you be able to consider the defendant’s life circumstances in deciding whether to vote for death or life?
▪ Have you or any family members been exposed to serious mental illness?
▪ How would your religious beliefs affect a decision to vote for life or death?