Dylann Roof wants an entire appellate court to reconsider a decision to recuse itself from hearing his case, as the appeal of his death sentence and conviction in the 2015 racist slayings of nine members of a Black South Carolina congregation winds its way through the judicial system.
Last week, Roof's attorneys made that request of the 4th U.S. Circuit Court of Appeals, writing that the judges who opted to sit out his case should reinstate themselves to consider his petition for a new hearing before the court.
Without that move, or changing a court rule prohibiting judges visiting from other circuits from considering such requests, Roof's lawyers wrote, "no judges exist to consider" his rehearing petition, depriving him of “a critical level of appellate review.”
All of the judges from the 4th Circuit, which covers South Carolina, have recused themselves from hearing Roof's case. No explicit reason was given in the court’s notice of that move in May, although one of the judges, Jay Richardson, prosecuted Roof’s case as an assistant U.S. attorney in 2017, when Roof became the first person in the U.S. sentenced to death for a federal hate crime.
Authorities have said Roof opened fire during the closing prayer of a Bible study at Mother Emanuel AME Church in Charleston, South Carolina, raining down dozens of bullets on those assembled. He was 21 at the time.
The most recent filing came after the court, citing its recusal, denied Roof's request for a new hearing, and also ruled against allowing a full court of substitute judges from other circuits to consider his case.
If Richardson's presence on the 4th Circuit is indeed the basis for all the judges' recusal, the court shouldn't let that detail prevent it from singularly considering Roof's request for a full hearing, his attorneys wrote.
"The Court does not need to pass on the propriety of Judge Richardson’s conduct at trial to resolve these issues," they wrote, adding in a footnote that “Judge Richardson, of course, has a personal disqualifying interest and should remain recused.”
In May, a panel composed of judges from other appellate circuits heard Roof’s case, subsequently unanimously upholding his conviction and death sentence and issuing a scathing rebuke of Roof’s crimes.
“No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did," the judges wrote. “His crimes qualify him for the harshest penalty that a just society can impose."
In what is anticipated to be a lengthy appeals process, Roof's lawyers have argued he was wrongly allowed to represent himself during sentencing. Roof, his attorneys have said, successfully prevented jurors from hearing evidence about his mental health, “under the delusion” that “he would be rescued from prison by white-nationalists — but only, bizarrely, if he kept his mental-impairments out of the public record.”
That rescue notion was apparently discussed in some circles. According to court documents filed in another federal case, the FBI heard two neo-Nazi group members talk about trying to free Roof from the maximum-security prison in Terre Haute, Indiana, where he is an inmate, including details on the number of guards present and how a shootout would happen.
If unsuccessful in his direct appeal, Roof could file what’s known as a 2255 appeal, or a request that the trial court review the constitutionality of his conviction and sentence. He could also petition the U.S. Supreme Court or seek a presidential pardon.
Meg Kinnard can be reached on Twitter at http://twitter.com/MegKinnardAP.