David I. Bruck has spent decades crafting legal strategies to keep people out of the country’s execution chambers. He has argued before the U.S. Supreme Court on seven occasions, winning six times. He has frustrated prosecutors, challenged judges and softened grim-faced juries.
But on the first day of the federal trial of Dylann S. Roof, the self-described white supremacist who is charged with killing nine black parishioners at Charleston’s Emanuel AME Church, Bruck told jurors something unusual: “This is the only phase of the case in which Mr. Roof will be represented by counsel.”
Roof, 22, has elected to defend himself during the portion of the trial, expected early next year, when jurors are poised to decide whether to sentence him to death.
Roof could reverse his unexplained decision, but for now, Bruck gave his final words to the jury Thursday before ceding the defense lawyer’s chair to the defendant.
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The jury deliberated for just a short time after Thursday’s closing arguments before finding Roof guilty.
It is most likely a disorienting, disappointing reality for a capital defense lawyer like Bruck, a death penalty foe who is being paid with tax dollars and who has effectively been discarded by a client who has confessed to the June 2015 killings.
It is also a peculiar twist in a case that simultaneously shook Bruck, who described the massacre in court as “an astonishing, horrible attack,” and led him, a longtime champion of racial equality, to defend a white supremacist.
Although Roof’s self-representation could lead to years of appeals, there is little Bruck can do now beyond making both overt and surreptitious efforts to raise a penalty phase defense before the verdict on guilt or innocence is even reached.
Bruck’s tactics in Federal District Court here – using his opening statement, for example, to suggest that jurors contemplate both “the crime and everything that led up to it,” such as Roof’s mental health – have repeatedly provoked objections from prosecutors, including one who complained that Bruck stepped beyond the guilt phase of the trial: “He knows what he’s doing, your honor.”
Almost certainly so.
“He’s in the trenches. He knows how the system works,” said George H. Kendall, a death penalty litigator who has known Bruck since the late 1970s. “At the same time, he can, not in a flashy or loud way, very, very effectively put together a case and deal with all of the heat in the trial setting and really, unless the judge or prosecutor or client interferes, put the best foot forward.”
Bruck, 67, has practiced in South Carolina for decades. He studied at Harvard and interviewed Richard M. Nixon for The Harvard Crimson, has worked as a welder, and earned a law degree from the University of South Carolina. Many of his clients have been poor and black, and in court, on Capitol Hill and in his writings, he has railed against capital punishment, arguing it is a politically motivated cudgel that is unequally applied.
“Justice does demand that murders be punished,” Bruck, who declined to comment for this article, wrote in The New Republic in 1985. “And common sense demands that society be protected from them. But neither justice nor self-preservation demands that we kill men whom we have already imprisoned.”
The views of the soft-spoken Bruck, whom people in the courtroom sometimes strain to hear, are not typical in South Carolina, a conservative state that in the 1990s executed nearly double the number of prisoners as North Carolina, its larger neighbor. Prosecutors sometimes disdained Bruck as a liberal interloper who protected murderers and, as Justice Antonin Scalia wrote in a dissent in a Bruck-argued case, advanced a “guerrilla war to make this unquestionably constitutional sentence a practical impossibility.”
But there were many victories.
By the summer of 1995, only three of the roughly 50 South Carolina murder defendants he had represented had been put to death. That year, he secured a life sentence for Susan Smith, the South Carolina mother who drowned her two young sons. In that case, as he did for the current phase of Roof’s trial and during last year’s proceedings against Dzhokhar Tsarnaev, who was ultimately convicted and sentenced to death for the Boston Marathon bombings, Bruck did not dispute the guilt of his clients.
“They’ve developed a pretty wise strategy of not banging their head against the wall, not trying to try the guilt phase when it would only lose their credibility to do so,” said Thomas E. Pope, who prosecuted Smith.
The Smith case strengthened the reputation of Bruck – who lives in Virginia, where he is a law professor at Washington and Lee University – as a go-to lawyer for the country’s most vilified defendants.
“I know that the loneliest place in the world for David is sitting next to one of the most reviled people of this century,” said William N. Nettles, who was the U.S. attorney for South Carolina when Roof was indicted. “But David is ahead of his time, and history will be kind to him when history catches up to him.”
This week, Judge Richard M. Gergel, who has clashed often with Bruck, rejected a defense request “to admit relevant evidence of the defendant’s state of mind and personal characteristics.”
Although the Justice Department rejected Bruck’s proposal that Roof plead guilty in exchange for a sentence of life in prison, recent history suggests that Roof could avoid the death penalty. Since 1988, according to the Federal Death Penalty Resource Counsel Project, federal juries have opted for life sentences for nearly two-thirds of defendants convicted of capital crimes.
But capital punishment specialists typically represented those defendants, and here, Roof appears intent on forging his own strategy.
He dismissed Bruck and his other lawyers after the defense questioned Roof’s mental competency, and then he chose to bring them back for the first part of his trial. Some in this courthouse believe that Roof may reverse course again and reinstate Bruck.
“I would imagine right now that David is a tortured soul,” said Monica Foster, who has worked with Bruck and is now the chief federal defender in Indianapolis. “I think that he’s probably feeling grossly impotent. I think he’s probably hoping that his client changes his mind – it wouldn’t be unusual – and I think he’s trying to do everything within his power to help Mr. Roof.”