Dec
09

Dylann's Killers Take Aim

I can’t say I am surprised by Dylann Roof’s decision to conduct his own defense. What, really, has he to lose? 

Mr. Roof is standing trial in a South Carolina federal court, accused of 33 crimes — ranging from murder to obstruction of religion to firearms charges and to hate crimes — all arising from his shooting spree in a Charleston African Methodist Episcopal Church in 2015. Mr. Roof, 22, is white; the nine people he shot to death were black. He hoped his shootings would start a race war.

If convicted, after a trial by jury, he faces the death penalty.

From afar, it appears as if the case is a slam dunk for federal prosecutors. Mr. Roof took pains to leave one churchgoer alive as he mowed down the other attendees at a prayer meeting. He wanted a witness, you see.

The federal government is very selective in choosing the cases in which to seek death. Local prosecutors are first required to screen a case, and to offer counsel for the accused a chance to come in for an informal chat about why the defendant ought to be spared death.

Once the local panel makes a decision, another committee of prosecutors, this time in Washington, D.C., conducts an independent review and makes a recommendation to the attorney general. The attorney general is required to approve of every death penalty prosecution.

So a bevy of federal prosecutors have decided that Dylann must die. How determined are they to see this young man dead?

Very much so.

Not long ago, Mr. Roof offered to plead guilty to each and every crime charged, so long as the government would not seek his execution. No deal, the government said.

Really? 

The charges against Mr. Roof are steeped in hatred, and they are vile. Mr. Roof is a weak reed, a canary in the mine shaft, his hatred an obvious and extreme form of our festering racial wounds.

Killing Mr. Roof is not justice. What species of bloodthirsty self-righteousness inspires the prosecution? Do we get a national “safe space” by beholding the corpse of this man-child?

And what of Mr. Roof? What was his state of mind at the time of the shooting? Was this evil? Was he ill? Does the distinction between evil and illness even make sense here?

Late last month, the federal judge presiding over Mr. Roof’s case concluded Mr. Roof was competent to stand trial. Competency is not the same as sanity.

To be competent, a person must be capable of understanding the nature of the charges against him and of assisting in his own defense. I’ve read competency evaluations that set the bar so low as to be laughable. If a person understands that his lawyer’s job is to protect him and knows what charges he faces, that’s a significant step on the way to being found competent. 

A defendant will be found competent even if his ideas about how to defend himself are bizarre. Many are the stories criminal defense lawyers tell about clients out of step with reality but nonetheless found to be competent.

Sanity is more nuanced: Did a person appreciate the unlawfulness of his conduct; could he control himself?

The fact is that the law is all about the law of averages, about commonly held values, about what is “reasonable” to most people most of the time. Outliers, people who are different, stand out because they march to different drummers. An unreasonable person can be competent, the law holds. You can be competent but insane.

After the judge declared Mr. Roof competent to stand trial, Roof fired his lawyers and insisted that he be permitted the right to represent himself. The United States Constitution guarantees us that right, so long as we are competent and don’t disrupt the proceedings.

Lawyers like to say that a person who represents himself has a fool for a client. I think this true in almost every case, but not in Mr. Roof’s case. Given the evidence the government has amassed against him, a conviction is inevitable; given the government’s blood lust, the only real fight is over whether he will die behind bars or be poisoned to death by anonymous executioners.

What chance has a 22-year-old with a GED against a team of skilled legal assassins? None.

What chance had his team of top-grade defenders of saving his life? No better, I suspect, than the odds Mr. Tsarnaev had in Boston.

Mr. Roof now gets the chance to address the jury without having to be cross-examined. If he truly seeks to live, he won’t sit by as government lawyers demonize him one witness at a time. He’ll stand before the jury, composing himself as best he can, serving as Exhibit A in the only defense that can work: “I am not a monster; I am a more extreme version of the hatred that defines us.”

A jury detoxifying after this year’s bitter presidential race, and wary of the hatred and intolerance abroad in the land, just might spare him in the name of hope for a better future. Don’t forget that in the wake of the shootings, several families of Mr. Roof’s victims announced they were prepared to forgive.

Suppose Mr. Roof doesn’t care whether he lives or dies. Suppose he wants a pulpit from which to preach hate. Then he’ll have that, as well. He can engineer his own martyrdom.

The 17th-century English philosopher Thomas Hobbes conceived of the state as our only protection from anarchy and violence. Citizens, he argued, had a duty to submit to the state in all things save one: When the state sought to kill its own, the person targeted to die retained the right to fight back, to resist.

Candidly, I am rooting for Mr. Roof in this one, insofar as the penalty phase goes. He offered a guilty plea; the government said no. Now he stands alone, asking each of us to take stock not just of his hatred, but of our own.


Dec
07

Mopery In New Haven

            Just why anyone would want to be a police officer in this day and age is beyond me. And why any current officer would want to lead a police department is an even greater mystery. 
            Consider the case of Assistant Chief Luiz Casanova, who was the target of a snarky press release this week by the New Haven Police Department. Casanova, it turns out, was given a two-day paid leave while the department investigates a “verbal interaction.’
            First, some context. 
            The police chief’s position is currently vacant, after this year’s resignation of former chief Dean Esserman. The power to appoint a new police chief belongs to Mayor Toni Harp. 
            The mayor is known for her sharp elbows. My office has from time to time represented the New Haven Board of Alders in disputes with the mayor. When entering City Hall, I always feel as if I need a bodyguard, or should be wearing a bulletproof vest. 
            Harp plays for keeps, and her hand-picked corporation counsel, John Rose, was known for playing hardball every chance he got while serving as the top lawyer for the City of Hartford years ago. When I heard Rose was coming to New Haven, I felt vaguely as though the Spanish Armada was on the horizon.
            Wags in City Hall report that Mayor Harp wants to tap Interim Police Chief Anthony Campbell for the permanent position of chief. But Casanova has support throughout the city. How best to neutralize Casanova? Character assassination.      
            So this week, the New Haven Police Department issued a press release targeting Casanova.
            What is the purpose of such a memo? To bloody Casanova in the public eye, and to signal to his supporters that he is not the stuff of which good chiefs are made.
            But merely signaling that Casanova is being investigated is only half an assassination. The public will want to know just what is being investigated. No police official will comment on that publicly, however. That could get the official sued for defamation.
            So the whispering campaign began.
            The press relies on “sources” for information. If no one spoke to a reporter, there’d be little or no news. When sources speak for attribution “on the record” they permit their words to be used and their names to be recited as the source of those words.
            But suppose you want to speak to the press, but not have your name printed. Can the press do that? The answer, obviously, is yes. It happens all the time. A reporter can agree to print your words but to keep your identity confidential.
            It’s a semi-scandalous practice: permitting people to say things and escape accountability if what they say is flat-out wrong. 
            Good reporters won’t print just anything a source insisting on confidentiality says. One job of a good editor is to grill his or her reporters to make sure the sources are reliable.
            I know Paul Bass, who heads up the New Haven Independent, to be a good editor. His newspaper reports that “people familiar” with the incident report what Casanova said. I take that to mean two or more people repeated the same thing.
            Casanova is alleged to have called a subordinate a “[bleep]ing mope” for wearing a departmental issued knit cap. (Okay, okay, they didn’t report that Casanova said “bleeping.” But you get the clucking point, right?”)
            I spoke to Casanova about this report on Wednesday evening. He’s outraged. He didn’t say what was reported. One or more of the people who reported his having said this have good reason to remain anonymous now; they might face suit for defaming him.
            I say might face suit because although what they reported is false, it is really not that big a deal.
            In the hothouse environment of the politically correct, one utters expressive speech at one’s peril these days. To be sure, some words are racially charged – while a white guy can be a “thug,” the word more often carries a racial connotation. 
            But what about the word “mope?”  
            I’ve heard that word applied to all races of people, and regularly. It’s almost a term of art in the criminal courts. I’ve heard judges, defense lawyers, prosecutors use the word. I’ve even used the word myself.
            What is a mope?
            A mope is a person who just doesn’t get it, a perpetual ne’er do well with a rap sheet longer that a good kid’s Christmas list. And the “f-bomb” used to modify mope? The word is as common in the police station as it is in the courthouse.
            If Casanova did call a subordinate a “clucking mope,” I am sure the target would be unhappy. Supervisors ought not to speak to their employees this way. But do you really sit a senior administrator down for two days and malign him in the press for such an utterance? 
            You do so, only if there is a broader agenda, that agenda being to hobble a good man.
            Ironically, Casanova is the official who ordered the knit caps in questions for the department. They are issued to men to wear on cold days, to keep their ears and heads warm. Casanova reports that he told a man wearing one inside the department to adjust it because, as he reports it, the man looked like a mope.
            Oh. My. Goodness.
            I’ve represented police officers throughout the state in employment-related disputes. And, truth be told, I may well represent Casanova in this matter. A sobering truth I’ve learned along the way is the following: Police officers treat one another savagely. Only public school teachers display a similar degree of pettiness.
            Here’s my hunch on this melodrama: Mayor Harp backs Campbell for chief. That means Casanova needs to be neutralized. So any old excuse will be used to attack Casanova, even the half-truths of cronies who don’t have the integrity to put their names next to their allegations.
            What a shameful mess. Just why Casanova would want to lead the department is a mystery to me. Swimming with the sharks in City Hall doesn’t sound like my idea of career advancement. The mayor, you see, can be a real mope.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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