What we can expect from Dylann Roof

Dylann Roof facing trial in church killings
Dylann Roof facing trial in church killings

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  • Danny Cevallos: Federal judge rules Roof can represent himself
  • Right to pro se defense is protected but not absolute, he says

Danny Cevallos (@CevallosLaw) is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN)A federal judge has granted Dylann Roof's motion to represent himself "pro se" in his upcoming jury selection and trial.

In general, attorneys and judges alike are pretty much obligated to tell a defendant that representing himself is probably -- in the words of one judge -- a "horrible idea." A judge must determine in court if the waiver of counsel is knowing and intelligent. No particular interrogation or colloquy is required, so long as the defendant is warned of the dangers, and his choice is made with his "eyes open." The defendant must be made aware that he'll be alone in a complex area where experience and professional training are a tremendous advantage.
Danny Cevallos
In some ways, then, this ruling in Roof's case is not a surprise. A criminal defendant has a Sixth Amendment right to self-representation.
And yet, that immutable constitutional guarantee... has exceptions. That's right: even the right to represent yourself is not absolute. For example, the waiver allowing a pro se defense must be timely. Otherwise, it could be abused as a delay tactic.
In fact, the court can even deny a request made before jury selection if the prosecution can show that the motivation for the pro se request is just to delay trial.
Courts also have authority to revoke pro se representation in the middle of trial if a defendant disrupts the trial proceedings.
Pro se defendants are both the bane and the glory of the criminal justice system. Once in a while, they succeed where counsel might not have. Most of the time, they fail in spectacular fashion.
Attorneys similarly are of two minds about a pro se defendant appearing in a courtroom. On the one hand, pro se defendants are worrisome because they often make critical procedural missteps in open court. Grizzled veterans also grouse that pro se defendants can also slow down an already clogged system by turning an otherwise two-minute hearing into a filibuster speech about the Federalist Papers. Judges tread with trepidation, as pro se defendants potentially raise endless issues for appeal if not handled with care.
For the legal observer, if not the legal practitioner, pro se defendants are absolutely fascinating to watch. They make for riveting courtroom drama -- though in cases like the Charleston massacre, that drama comes at a profound emotional cost for a community still struggling to come to grips with the aftermath of a brutal crime.
Ultimately, though, pro se defendants are like snowflakes... no two are alike. The Supreme Court has recognized that no one formula for maintaining the appropriate courtroom atmosphere will work in all situations, so judges enjoy considerable discretion to meet the circumstances of each case.
Even if Roof represents himself, it doesn't necessarily mean he's going to be pursuing the case totally alone. A trial court may appoint "standby counsel" -- an attorney whose role is to aid the accused if (when) the pro se defendant requests help, and also to represent the defendant if the court puts a stop to the pro se representation. A pro se defendant has no right to standby counsel, but at the same time, a trial judge can appoint standby counsel even over the defendant's objection if necessary.
Pro se defendants present judges with a balancing test: sometimes an attorney must play a limited role in the trial, while avoiding infringing upon a defendant's Sixth Amendment right to represent himself.
At this point, it's not clear if standby counsel has been appointed for Dylann Roof, but the district court has broad discretion to guide what, if any, assistance standby counsel may provide him.
Anyone in the legal field would, on the record, discourage a criminal defendant from proceeding pro se.
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But as a citizen? Off the record? I confess part of me wants to see Roof represent himself. As long as he understands the waiver of his rights, the ensuing spectacle will actually represent a cherished constitutional right. The question is whether that constitutional right frustrates the pursuit of justice and a fair trial -- another constitutional right.