Accused Charleston church hate crimes killer Dylann Roof has notified U.S. District Court Judge Richard Gergel that he does not want to be tried by a jury in his upcoming death penalty case.
In a filing Thursday in federal court, Roof’s lawyers said they do not want a jury to decide either phase of his upcoming trial. Prosecutors announced May 24 they will seek death.
If Gergel grants Roof’s request, that would mean Gergel would hear the entire case by himself. He would first preside over the guilt or innocence phase. If Roof were found guilty, Gergel would hear additional evidence then make the lone decision to sentence Roof to death or grant him a sentence of life without parole.
Also in Thursday’s filing, Roof lawyer David Bruck notified Gergel that the U.S. Attorney’s office, which is prosecuting the case, intends to fight Roof’s request to waive a trial by jury.
Jury selection in the case is set to begin Nov. 7.
Ordinarily, most defendants in death penalty cases choose to have a jury hear their case. In the penalty phase of a capital case, all it takes is one juror to object to the death penalty for a decision for life in prison to be made.
In his request, Bruck is gambling that Gergel, as a lone judge, will find it more difficult to render a death sentence than a jury of 12 people, whose decision for death would be collective.
Bruck, one of the nation’s most experienced death penalty lawyers, won a similar gambit 21 years ago.
In 1995, Bruck took a gamble with the life of convicted Richland County killer Jonathan Simmons and won a life without parole sentence before then-Judge Costa Pleicones, who is now chief justice of the S.C. Supreme Court.
In that case, Simmons, who continues to serve his life without parole sentence in the S.C. Department of Corrections, had raped two elderly women, including his own grandmother, and killed another woman, 79, by bashing her head in with a toilet-tank lid.
In announcing his decision to give Simmons a life sentence, as Bruck had wanted, Pleicones said the killer would live a far harsher life as a convict and lack the safety and the attention that comes with being a closely-guarded inmate on Death Row, according to news accounts at the time.
Asking that Gergel make a solitary decision on whether, if convicted, Roof would live or die is the second aggressive move this week in mounting Roof’s defense by Bruck.
Earlier this week, Bruck helped arrange the pace of the case so deliberations – whether by Gergel or a jury – on whether to execute Roof will likely take place around the December holiday season, a time when many people might find it difficult to render a death sentence.
Roof, 22, of Columbia, an avowed white supremacist, is accused of federal hate crimes in last June’s slayings of nine African-Americans and the wounding of three others during a bible study gathering at Charleston’s AME Emanuel Church.
Columbia attorney Johnny Gasser, who has prosecuted death penalty cases in both state and federal courts before going into private practice, said Thursday the decision is a complex one.
Death penalty lawyers who want to have a lone judge make the life or death decision do so “because they believe they have a better shot of convincing one judge rather than 12 jurors,” Gasser said. “For instance, they might think their defendant has legitimate mental health issues that regular jurors would completely disregard because of the brutality of the crime.”
But generally, said Gasser, “defense lawyers want a trial by jury because all they need is one juror – one out of 12 jurors – to say he just can’t do it, especially if life without parole is an option.”
Two high profile federal death penalty in recent years have both involved juries.
In 1997, a federal jury in Denver recommended a death sentence for Oklahoma City bomber Timothy McVeigh. He was executed in 2001.
In 2015, a Massachusetts jury recommended a death sentence for Boston Marathon bomber Dzhokhar Tsarnaev. He is appealing his conviction and sentence.
Last year’s massacre of African-Americans in downtown Charleston has similarly captured the nation’s attention. Because of the notoriety of the case, Gergel has suggested that a jury pool of up to 1,500 jurors may be necessary to ultimately select a jury of 12 impartial people.