Scott E. Sundby is Professor of Law and Dean’s Scholar at the University of Miami School of Law. He has served as a Principal Investigator for the Capital Jury Project, a study that interviews jurors who have served on capital cases, and has written a book, A Life and Death Decision: A Jury Weighs the Death Penalty, that looks at how jurors decide whether to impose the death penalty.
Professor Scott Sundby
As Dylann Roof’s trial moves into the penalty phase where a jury must decide whether he is to live or die, he has decided to represent himself. This is despite having some of the best capital defense attorneys in the country. His reasons for going it alone are unclear since the court hearings on the subject have been closed to the public. Roof may have delusions of being a martyr for the cause of white supremacy, or perhaps he does not want evidence of mental illness to be brought to light. Whatever his motivation, the judge has ruled that Roof has a right to represent himself because the Supreme Court has said that the Constitution generally provides an accused the right to be his own lawyer given that it his fate at stake.
This idea of the right to control one’s fate echoes a romantic notion of the self-sufficient individual who settled America and was willing to stand up to the Government. This notion is perhaps appealing enough to tolerate the reality that representation by counsel is sometimes the difference between whether a defendant goes free or goes to jail. But to allow self-representation at the penalty phase of a capital case is constitutionally perverse, as it ignores the rights of the often-overlooked individuals who play a central role in the death penalty drama -- the twelve jurors who must decide his fate. They are the ones to whom the Constitution assigns the immense responsibility for deciding if the defendant morally deserves to die.
These individuals have done nothing more than answer a jury summons and promised the court that they are capable of weighing whether to impose a life or death sentence. In return for that promise, however, the criminal justice system also made an implicit promise – that before they are asked to make what many jurors regard as the most difficult and heart wrenching decision of their lives, they would be fully informed about the person whose fate they hold in their hands. And jurors understandably want to know a host of facts – is the defendant intellectually disabled? Does the defendant suffer from a mental illness? Did the defendant have any spiritual or moral guidance growing up? Was the defendant subjected to excruciating sexual, physical or mental abuse? And lest one think that none of these facts would matter to a jury given the horrific nature of Roof’s crime, remember that a Colorado jury recently chose life over death for James Holmes, who killed twelve and wounded seventy people in a movie theater. That jury decided the ultimate sanction was not justified because of Holmes’ severe mental illness, information that a jury might never have heard if Holmes had decided to represent himself.
The Supreme Court has justified the current death penalty regime on the premise that the jury will act as the conscience of the community. They can only carry out that sacred function, however, if they hear all of the evidence, both for and against imposing a death sentence. Jurors sometimes later ask for a reversal of a death sentence if it emerges that an ineffective defense attorney failed to present evidence like mental illness or severe child abuse that would have changed their mind. Jurors in these situations feel betrayed upon learning of the evidence’s existence, and well they should. The justice system asked them to make an incredibly difficult moral and spiritual decision and then failed to give them the information that they needed to carry out their mandate.
In Roof’s case, the court may believe that its ruling furthers certain values, but it has missed a far more important constitutional principle: a death sentence should never be imposed unless we have complete confidence that the sentencer’s decision is a reliable and knowing one based on all of the facts. With Dylann Roof representing himself, that outcome is simply impossible. We owe it to the jurors and to ourselves as the society for whom the jurors speak that they hear all about Roof’s life before we ask them to sentence him to death.
As published in The Huffington Post January 4, 2017