How Dylann Roof might save himself

charleston shooting new pastor sandoval lok_00020306
charleston shooting new pastor sandoval lok_00020306

    JUST WATCHED

    Pastor: Charleston shooter 'pure evil'

MUST WATCH

Pastor: Charleston shooter 'pure evil' 01:14

Story highlights

  • Page Pate: Recent Georgia case shows that a death sentence for Dylann Roof may not be a given
  • Representing himself makes it likelier the jury will see Roof as a person worthy of empathy, he says

Page Pate is a criminal defense and constitutional lawyer based in Atlanta. He is an adjunct professor of law at the University of Georgia, a founding member of the Georgia Innocence Project, a former board member of the Federal Defender Program in Atlanta, and former chairman of the criminal law section of the Atlanta Bar Association. Follow him on Twitter @pagepate. The opinions expressed in this commentary are his.

(CNN)When Dylann Roof appears in federal court on Tuesday for the penalty phase of his trial, he will be representing himself as his court-appointed lawyers stand by and watch. I'm sure Roof's decision to represent himself was applauded by those who believe Roof deserves to die for killing nine innocent people while they worshiped at a church in Charleston, South Carolina. Common sense suggests that a defendant who represents himself in a serious criminal case, especially a death penalty case, becomes a much easier target for the prosecution.

Page Pate
That's certainly the prevailing view among lawyers and judges. In Roof's case, the federal judge overseeing the trial told Roof point blank that it's "a bad idea." I have no idea what kind of a defense Dylann Roof intends to present, or if he will even try to convince the jury not to impose a death sentence. At a hearing last week, Roof told the judge that he does not plan on calling any witnesses or offering any evidence.
If that's the case, his sentence should be an easy and quick decision, right? Maybe not. By representing himself at the penalty phase, I actually think Dylann Roof has a better chance than most might believe at avoiding a death sentence for his crimes.
    Let me be clear: I am opposed to the death penalty. I know, after representing people in serious criminal cases for over twenty years, that the death penalty is not fairly or uniformly imposed. Statistics show that death as a punishment has been predominately imposed on people of color. And, as the number of exonerations of death row inmates continues to climb through the use of DNA testing, it is a virtual certainty that our judicial system has sentenced people to die for crimes they did not commit. Without 100% certainty, I don't think the state should be in the business of killing people. I think it's both unconstitutional and immoral. To me it's no wonder why Supreme Court Justice Stephen Breyer has joined other judges, lawyers and legal scholars in the belief that capital punishment is cruel and unusual.
    But it's hard for me to say it would be cruel to execute Dylann Roof for what he did. Roof has admitted both his crime and his racial motives for committing it. If anyone deserves to die for their crimes, Dylann Roof certainly does.
    And that's what will likely happen if Roof is represented by lawyers who follow the standard script in death penalty cases. If Roof's lawyers try to convince the jury to spare his life for the usual reasons -- his youth, possible mental illness, difficult family circumstances - they will lose. Roof committed a senseless, horrible crime and has expressed not even the slightest bit of regret.

    How Roof's choice could change the script

    But by dismissing his experienced lawyers and deciding to represent himself, Roof is throwing the script out the window. He has no legal training that we know about, no idea about complicated evidence rules and court procedures, and absolutely no credibility with the jury. Most people are now assuming it's over for Roof -- but I'm not so sure.
    In a recent case from Georgia, a defendant represented himself in a death penalty trial and lived to tell about it. The defendant in that case admitted to a killing spree during which he murdered a well-known local police officer, tried to kill another police officer, and then killed an innocent bystander. The case was tried in a rural, mostly white county in a red, pro-death penalty state.
    Like the Roof case, everything about the Georgia case pointed to a death sentence. But that's not what happened. Like Dylann Roof, the defendant in that case decided to start representing himself during the proceedings. That's when the wheels of justice went off the track.
    Pastor: Charleston shooter 'pure evil'
    charleston shooting new pastor sandoval lok_00020306

      JUST WATCHED

      Pastor: Charleston shooter 'pure evil'

    MUST WATCH

    Pastor: Charleston shooter 'pure evil' 01:14
    I followed a good portion of that trial in the press and watched the penalty phase (I personally knew lawyers on both sides and the judge). I saw how the defendant interacted with the court and the jury. I don't know of any other cases (until now) where a defendant has represented himself at the penalty phase, and I am convinced that the Georgia defendant's decision to represent himself literally saved his life -- because the jury got to see him as a real person, not just a defendant sitting in a chair while lawyers spoke for him. The defendant in that case didn't try to deny the crime. Instead, he talked about his various grievances against law enforcement and how he had not been treated fairly by the system. It was all crazy talk, but it was enough to keep this conservative jury from sentencing him to death.
    I don't know if the jury decided against death in that case because they thought the defendant was mentally ill or for some other reason. But I do know that the jury's decision not to impose death wasn't based on any doubt about the defendant's guilt. He admitted killing these innocent and well-liked people, and never once expressed any remorse or offered any rational justification for his acts.

    Why the jury might not want him to die

    Instead, I think the jury rejected a death sentence in that case for the simple reason that the jury actually got to know the defendant on a more personal level than if his lawyers had done all the talking.
    Prosecutors are wisely taught to de-humanize criminal defendants at trial. They avoid calling the defendant by name and will instruct their witnesses to do the same. The more "human" a defendant becomes, the more difficult it is for a jury to impose severe punishment, especially the ultimate punishment of death. It's easier to sentence a "Mr. Defendant" to death than someone who has a name, a family, and the messy baggage of an often difficult life.
    When a defendant represents himself, it throws the prosecutors off their game. Any experienced prosecutor who has tried a case against a pro se defendant (a defendant who represents himself) will tell you how frustrating and difficult it can be. Maybe the prosecutor over-compensates by beating up on the defendant and exposing his ignorance of the law and court procedures. The judge will have to allow the defendant more leeway than a lawyer would get just to try to insure a fair trial.
    As strange as it may sound, a juror or two may also start to see something in the defendant that reminds them of a person they know. Or, the more they see and hear the defendant, they may start thinking about his age, his childhood, his emotional and mental issues, or any number of things we can only speculate about.
    There is also a very real chance that the more the jury sees and hears Roof trying to act as his own lawyer, the more they may be inclined to question his mental competence. If one or more of the jurors think he is mentally ill, they may be reluctant to sentence him to die. I think that's especially true if Roof puts up no defense at all or actually asks the jury for a death sentence.
    Regardless of what Roof says or does, it's admittedly very difficult to imagine a normal person feeling any empathy towards him at all. But I am certain, based on my experience as a lawyer and my observations of the trial in Georgia, that he has a better chance to live representing himself. There would be little possibility for the jury to empathize with him if a legal team were pleading for his life while he just sat there.
    Follow CNN Opinion

    Join us on Twitter and Facebook

    Even if the jury doesn't empathize with him, I think Roof's decision to represent himself at sentencing may still help him avoid a death sentence. The jurors' level of disgust for Roof may grow the more they hear from him, but they may decide that letting Roof die in prison after many years would be a tougher sentence than the death penalty. I can easily see jurors not wanting to allow Roof to become the racist martyr he fantasized about when he committed these crimes.
    I'm not saying Dylann Roof should live, or that a death sentence in this case would be a travesty of justice. But don't expect the prosecution to have an easier time achieving their goal just because Roof is representing himself. For better or worse, I think it's now going to be more difficult.