The revelations in a federal courtroom last week were gruesome – difficult to hear and to watch.
But an underlying tension in the horrific hate crimes trial of Dylann Roof is the battle between two key players who started their careers in Columbia: defense attorney David Bruck and trial judge Richard Gergel. At stake? Nothing less than the life of Roof.
Bruck and Gergel are clashing over Bruck’s repeated motions and efforts to allow the jury to hear evidence about Roof’s mental state. Roof is charged with the June 2015 execution-style killings of nine African-Americans at Emanuel AME Church in Charleston.
In the past week, Gergel has rebuffed Bruck’s efforts to delay the trial and grant a mistrial. Although the judge has sometimes granted Bruck’s motions on various issues, he sometimes scolds Bruck as if addressing a child.
And, as frequently as Bruck tries to get Roof’s mental condition before the jury, Gergel cites numerous legal rules and court decisions that say Bruck can’t put that kind of evidence before the jury during the guilt-or-innocence phase of the ongoing death penalty trial.
If Roof had been found insane earlier, he wouldn’t be standing trial. But mental competency tests have so far found Roof is legally competent – meaning he is able to understand the legal proceedings and assist lawyers in his defense – and so has to stand trial.
So Bruck is pushing to get to the jurors as early as he can anything that would make Roof seem more human – and perhaps less responsible for his actions.
Bruck has even made the sparring personal. On Thursday, the defense attorney suggested Gergel might not be living up to a noble legal standard set by Gergel’s legal hero, the late U.S. Judge Waties Waring of Charleston.
“This courthouse is named for Judge Waring largely due to your efforts,” Bruck told Gergel last week with the jury out of the room, noting that Gergel had led an effort to put a statue of Waring in the Charleston federal courthouse plaza.
“We revere Judge Waring,” Bruck said, his voice rising across a packed courtroom, “Not because he did right – but because he did right when it was hard.” Bruck, who usually speaks in a patient, almost gentle, voice, emphasized the word “hard,” implying Gergel was taking the easy way out over a dispute about a prosecution witness’ statement that Roof should be punished “in the pit of hell.”
Gergel ignored Bruck’s jibe about Waring, a legendary Charleston judge who in 1951 wrote a courageous legal opinion that eventually helped lead to the country’s end of segregated public schools.
‘Turn over every stone’
On one occasion, Gergel appears to scoff at Bruck’s repeated efforts to get mental evidence before the jury by using a semi-legal term with its origins in the beer industry.
Granting one motion Bruck made “would be a back door to insanity lite,” Gergel told Bruck on Friday morning before the jury was brought in.
“Insanity lite” – a take off on low-alcohol-content beer – refers to a defense team efforts to place a defendant’s mental state before a jury without having to actually claim that defendant is insane.
That morning, Bruck and his legal team had just moved to summon some of Roof’s middle school teachers to testify during the guilt-or-innocence phase of the trial, which was in its third day.
“I understand your position,” Gergel told Bruck. “You need to turn over every stone in a capital case, and I respect that.”
Bruck kept arguing the point. Gergel sighed. “Now, Mr. Bruck, here we go again.”
Bruck didn’t stop, telling Gergel that Roof has vital constitutional rights at stake, including the right to call witnesses, such as middle school teachers, who could testify on his behalf in the guilt or innocence phase.
People familiar with death penalty cases aren’t surprised at Bruck’s aggressiveness.
“In a fully contested capital trial, it is not unusual for the defense to be on the nerves of the judge,” said Charles Adams, a Charleston attorney who has been involved in some 75 death penalty cases around the nation and South Carolina.
Still, Bruck’s efforts are especially crucial in this case.
That’s because Roof has already told Gergel he wants to represent himself during the trial’s death penalty phase, if it comes to that.
If that happens, Roof may try to explain to the jury that he killed nine innocent African-Americans as a political act – not because he has any mental defect. That would be sure to anger the jury rather than buy sympathy, legal observers say.
According to evidence in the case, Roof is a “self-radicalized” white supremacist who likely wants to try to convince the jury he acted out of sincere political beliefs, according to various court documents. Prosecutors contend he learned his toxic racist beliefs from extremist websites that spread inflammatory false information, then made a twisted, but sane, decision to kill.
Neither Bruck nor Gergel is giving interviews while the trial is going on.
Legal experts, however, say that Bruck has to keep pushing points he believes are valid.
“You have the ethical duty to raise all potential issues and make sure they are preserved,” Adams said.
“A lot of courts have kicked out appellate issues because they weren’t properly preserved. A lawyer is responsible for objecting in a timely way on all the different grounds that are available,” Adams said. “If you skip one of the grounds, and it was the right one, an otherwise valid appeal could be kicked out, and your client could lose his life.”
Head to head
Both Gergel and Bruck have sterling reputations.
At 67, Bruck is one of the nation’s top capital defense attorneys, appointed at taxpayer’s expense to defend Roof by Gergel. Death penalty trials are highly complicated affairs, and to avoid mistakes that would lead to a case being overturned on appeal, judges want the best lawyers trying them.
Bruck, who runs a death penalty defense clinic at Washington & Lee University, has been involved in hundreds of death penalty cases, either as a lawyer or adviser.
He has won five death penalty cases before the U.S. Supreme Court and dozens more before the S.C. Supreme Court. A Canadian who went to law school at the University of South Carolina, Bruck cut his teeth in the Columbia legal community.
In 1995, he won national attention for winning a life sentence for child killer Susan Smith, who’s now in state prison for drowning her two young boys in a Union County lake. Most recently, he failed to hold off the death penalty for the surviving brother in the Boston Marathon bomber case.
Gergel, 62, before becoming a federal judge in 2010 and moving to Charleston, was known for a series of crusading law cases. Many of the decisions led to changes in laws. He also successfully represented clients who had been wronged by governments, institutions and businesses.
Also a USC law school graduate, Gergel has handled several high-profile cases since becoming a judge. They include writing a landmark 2015 opinion that opened the doors to same-sex marriage in South Carolina.
Numerous laws and legal opinions support Gergel’s position about withholding mental condition evidence to a jury during the guilt-or-innocence phase of a death penalty trial.
Federal prosecutor and assistant U.S. Attorney Jay Richardson and other prosecutors insist Roof is a hardened criminal and want no mental health evidence to go the jury in the guilt-or-innocence phase.
“This is a case about a crime that occurred on one night, the planning and preparation that came into it, and what he did afterward,” Richardson told Gergel Friday in one dispute. Only evidence that directly goes to guilt or innocence should be admitted, Richardson said.
Late Friday, prosecutors continued portraying Roof as a man responsible for his actions, putting FBI agent Michael Stansbury on the witness stand. Along with FBI agent Craig Januchowski, Stansbury had conducted a chilling two-plus hour video in which Roof confessed to the agents.
Asked what Roof’s demeanor was by prosecutor Stephen Curran, Stansbury told the jury that Roof had no regrets, “Like other killers I have interviewed. … It was like he did what he did and wanted to explain it.”
Bruck, of course, immediately objected to the comparison of Roof with “other killers.”
Although Gergel instructed Curran to ask the question another way, Bruck objected to that one, too, and a legal dispute arose where at one point, Gergel – with his mouth half-opened in apparent disbelief at Bruck’s persistence – appeared to squinting at Bruck.
“It’s not fair!” Bruck told Gergel.
AT THE COURTHOUSE
Highlights from last week
▪ Defense attorney David Bruck, speaking almost in a whisper, told the jury in his opening statements Wednesday that Dylann Roof is guilty and that the real issue before the jury, to come in the trial’s second phase, is whether to give Roof life, without possibility of parole, or a death sentence.
▪ Lead prosecutor, assistant U.S. Attorney Jay Richardson, speaking without notes for almost an hour, characterized Roof as a man who made a free choice to become a killer. Richardson brought each of the nine victims to life. And then he described in cinematic detail how Roof executed them each. Richardson told the jury he also later would show how Roof absorbed toxic white supremacist postings on the Internet.
▪ Roof’s mother, sitting in the audience, suffered a heart attack shortly after Richardson’s remarks.
▪ The prosecution opened its case with Felicia Sanders, one of three survivors, describing what happened the night Roof came to Emanuel AME’s Wednesday night Bible study class. One by one, she talked about the people who were there – people she loved who never made it home.
▪ Prosecutors played for the jury a more than two-hour-long video confession Roof gave to two FBI agents in North Carolina the day after the shootings. Jurors and family members of victims heard Roof’s voice for the first time. He said he considered himself a white supremacist who had to kill black people. And he said he chose Emanuel because it was historic and because a Wednesday crowd would be small. The court made the video available for public viewing after it was played in court.
Coming up this week
▪ Among the evidence offered this week could be testimony about the extremist websites that helped Roof become a self-radicalized white supremacist.
▪ Prosecutors expect to finish making their case by Wednesday or Thursday but couldn’t say for certain.
▪ The defense could begin presenting its case after the prosecution rests.
▪ Although Roof has allowed defense attorney David Bruck and his legal team to represent him for the guilt or innocence phase of the trial, Roof still plans to represent himself if there is a death penalty phase.