Reminder: Hateful Racist Mass Murderers Have The Same Rights You Do

Dylann Roof, the white supremacist sentenced to death after killing nine black church members as an attempt to start a race war, asked a court to replace his appointed appellate lawyers because they “are my political and biological enemies.” The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals denied his request.

Roof’s pro se motion stated that his lawyers, Alexandra Yates and Sapna Mirchandani, “are Jewish and Indian, respectively. It is therefore quite literally impossible that they and I could have the same interests relating to my case.”  Roof had difficulties on the same basis with his court-appointed lawyer, David Bruck, during his trial. The murderer wrote  in his motion that Bruck is Jewish and “his ethnicity was a constant source of conflict even with my constant efforts to look past it.”

I have been shocked at the reaction of the legal profession, the news media and the public to the 4th Circuit’s ruling. It really does appear that all the education in the world, ethics rules, principles and the Constitution will still be steamrolled by hate and emotion, even when crucial, indeed existential values for our society are at stake. My trust and respect for all professions—all of them—have been grievously reduced by their conduct and ethics blindness over that past several months. No wonder the First Amendment is under attack. No wonder our institutions are being weakened to the point of collapse.

The public literally  not understand the principle I am going to explain now. Apparently naively, I thought lawyers, judges and law professors did. In the interest of clarity, I am going to do this in short, straightforward segments.

I. The Court’s ruling is not just wrong, but frighteningly wrong.

Roof, like all citizens accused of a crime, has a right to a competent, zealous legal defense. A  competent, zealous legal defense requires that the defendant be able to participate fully in that defense. If a defendant does not or cannot trust his lawyers, he cannot be assured of a competent, zealous legal defense.

II. A client has to trust his lawyer.

It doesn’t matter why a client doesn’t trust his lawyer, and the lawyer need not agree that the lack of trust is warranted. The question is whether a lawyer who is not trusted by his client can do an adequate job representing him. The answer is no. The Sixth Amendment, which guarantees a fair trial and legal representation in criminal cases, is not there for the lawyers, or courts, or government. It exits to protect the accused—all accused.

In a famous medical ethics case, an elderly Korean man in a hospital wanted his doctors, specialists in his malady, replaced because they were Japanese-Americans, and as a survivor of the horrors Japan inflicted on Korea, he was convinced that they would kill him. The hospital ethics committee held that he was an irrational bigot, and that he either had to accept the qualified physicians despite their race, or get out. The AMA disagreed. It said that the patient’s welfare is paramount in medical ethics, and a patient who does not trust his doctors—the reason doesn’t matter—will have his welfare and health endangered as a result.

The same principle should apply to Roof. A client who does not trust his lawyer will not, for example, be candid with him, or trust him to keep confidences.

Under the circumstances Roof described, the lawyers have an ethical obligation to withdraw. Two rules are involved:

Client-Lawyer Relationship
Rule 1.7 Conflict Of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

In the context of Roof’s representation, the lawyers have an interest in demonstrating their professional ability to represent a client competently and zealously that they personally detest, or have good reason to. I take them at their word that they can and will do that, even if their client doesn’t, but the point is, their client doesn’t.

Because he doesn’t, he cannot be effectively represented by them, as I explained above. Thus their interest materially limits their ability to represent Dylan Roof. Moreover, they cannot “reasonably believe” otherwise, because they know, as all lawyers know, that an attorney-client relationship is one of trust (attorney means “one who is trusted”). They also cannot get Roof’s consent to waive the conflict, because he has asked to have them removed.

Under Rule 1.16, Withdrawal, …

…a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the rules of professional conduct or other law;

Representing Roof violates Rule 1.17.

III. Diversity goals does not outweigh civil rights

I teach a related issue every month: a law firm acceding to a client’s request for a lawyer of a specific race or gender is not a breach of legal ethics; its is consistent with legal ethics. Clients have the right to choose their lawyers, and a client’s need to have a lawyer he or she feels comfortable with outweighs other considerations. Representations are about the needs of clients, not the rights, wants, or egos of lawyers.

IV. Roof’s crime and character are irrelevant to his right to have a lawyer he trusts.

Why is this so hard to grasp? He is a citizen accused of a crime, and that’s all that matters to the Constitution. In the eyes of the law, he is presumed innocent until he has exhausted his appeals. The Washington Post’s’ story about the court’s rejection of his motion spends most of its space describing Roof’s crime and his racist rhetoric. Irrelevant all. He has the same right to have an attorney he can trust—that HE can trust, not that is objectively trustworthy—as you or I.  Call me cynical, but I do not believe that if a Black Lives Matter leader was in Roof’s position and wanted his white, former police counsel lawyer dismissed because he assumed his lawyer was biased against him, there would be any hesitation by the court to do so.

I am genuinely depressed that Professor Jonathan Turley, whose analysis is usually objective and perceptive, wrote, in a post applauding the 4th Circuit,

“Roof appears to believe that the right of counsel includes the right to white counsel. It doesn’t. The court should not be a vehicle for racial or religious discrimination to cater to the wishes of a homicidal fanatic”

Shame on Turley for this. I expect that kind of distortion from activists and non-lawyers, not a distinguished law professor. The right of counsel includes the right to a lawyer a defendant can work with, and can trust. Forcing Roof to accept representation from lawyers he does not trust essentially robs him of the right to counsel: his only option is to represent himself. That’s what I would do.

As an aside, I am also suspicious of the fact that a two Jewish lawyer, and Indian-American were assigned to represent Roof. It appear to me that the courts are deliberately sticking it to him, because they think a racist deserves to be forced to rely on people he hates. There are no shortage of qualified white, Anglo-Saxon lawyers. If Roof were rich, like O.J. Simpson, he could ensure that his representation had his trust. Roof is not rich, and has to depend on the system to ensure that he has a fair trial and counsel he can work with. If Roof were a an abused spouse who had kidnapped her daughter to allegedly save her from the estranged husband’s abuse, and asked the court to replace her male appointed lawyer with a female one because her experience had taught her that she could not trust men, would Turley write,  “She appears to believe that the right of counsel includes the right to a female counsel. It doesn’t. The court should not be a vehicle for gender  discrimination to cater to the wishes of a hysterical, man-hating kidnapper”?

I see a great threat to our civil rights in the 4th Circuit’s ruling, and even greater threat in the bland acceptance of it. Increasingly, influential voices in the culture are arguing that rights apply differently to Good people rather than Bad ones. Hard right white nationalists shouldn’t have freedom of speech. Citizens under suspicion by the FBI shouldn’t have the right to own a gun. Now racist murderers can’t have lawyers they can trust (again, not should trust, but can trust) an essential element to the right to a zealous defense.

The rich, the wise, the popular, and the powerful don’t need the protection of our Bill of Rights as desperately as the poor, the stupid, the deranged, the hated and the isolated.  When professionals like Jonathan Turley let their emotions cause them to forget that, our free society is at risk.

_______________________

Pointer: ABA Journal

 

 

28 Comments

Filed under "bias makes you stupid", Citizenship, Ethics Alarms Award Nominee, Government & Politics, Journalism & Media, Law & Law Enforcement, Professions, Race, Rights, U.S. Society

28 responses to “Reminder: Hateful Racist Mass Murderers Have The Same Rights You Do

  1. I get the problems you have with this, Jack. You are right.

    The little man who stays closed in a room inside my head keeps yelling “court appointed attorneys that I pay for are free to the defendant, and he should shut up and be glad!”

    I know, I know, not the way to look at it. We have to pay for Roof’s defense since he cannot.

  2. Interesting turn of events.

    Sounds like a Supreme Court case is in order to correct the court’s incorrect interpretation of the United States Constitution. In the meantime what happens to the racist condemned to die Roof, solitary confinement 24 hours a day to keep him away from other inmates until the case is heard and an opinion from the Supreme Court is written?

  3. Who is the authority who assigns a court appointed attorney? Or does the custom change in each state? Is it the presiding judge or some other magistrate?

  4. Phlinn

    I wonder if white lawyers are afraid to work with him because they think they will be labelled racists for defending him. Given the state of the social justice left, and the general inability of people to understand legal ethics, it seems like a reasonable fear to me.

    • Nah, there’s lawyers out there who don’t care.

    • I wonder, is there is a political party whose worldview that America is an inherently racist nation where black-killing cops are constantly acquitted and black criminals and black victims never get a fair shake would be positively advanced by the narrative the media would report if a higher judge threw out Dylan Roof’s sentencing on the grounds that he didn’t receive Constitutionally entitled representation?

      The narrative pushed by that particular media would be heavy on the “thrown out sentence” and light on the “didn’t receive approved representation”.

      • I wonder, is there is a political party whose worldview that America is an inherently racist nation where black-killing cops are constantly acquitted and black criminals and black victims never get a fair shake would be positively advanced by the narrative the media would report if a higher judge threw out Dylan Roof’s sentencing on the grounds that he didn’t receive Constitutionally entitled representation?

        It certainly can not be the same party that Senator Kamala Harris belongs to.

        https://groups.google.com/d/msg/Talk.Politics.Guns/rkOPVZdFTEM/GPb5UtdHBwAJ

        “Local law enforcement must be able to use their discretion to determine
        who can carry a concealed weapon,” said Kamala Harris, who was then the
        California Attorney General.

        So I wonder if any reporter from the network broadcast and print media would
        ask her any of the following questions:

        – If the reason that “[l]ocal law enforcement must be able to use their
        discretion to determine who can carry a concealed weapon” is because they
        are just Klansmen with badges, why shouldn’t the Stormfront White
        Nationalist Community also get to decide who can carry a concealed weapon?

        – If the reason that “[l]ocal law enforcement must be able to use their
        discretion to determine who can carry a concealed weapon” is because they
        habitually gun down unarmed black men, why shouldn’t the Crips also get to
        decide who can carry a concealed weapon?

        – Is more black men dead or in prison a worthy price to pay to make lawful
        gun ownership more difficult?

        – Is making lawful gun ownership more difficult a worthy price to pay to put
        more black men in prison?

        – Does some magical guardian fairy turn these Klansmen with badges into
        freedom riders whenever they exercise their “discretion to determine who can
        carry a concealed weapon”?

  5. Paul Compton

    Whilst I agree with your assessment Jack, and I’m sure having a legally incompetent citizen of an insignificantly small nation on the opposite side of the earth agree with you must give you a warm inner glow, I can’t see how he could trust any lawyer who wasn’t an avowed white supremacist. I imagine that he would have great difficulty finding a lawyer who he wouldn’t identify as his political enemy within two minutes of speaking to them! Let’s face it, there are probably a few white supremacist lawyers about, but they are unlikely to be stupid enough to publicly identify as such or want their client to say: “Yes, I trust him (probably not her) because he agrees with me!

    Which raises the question; are lawyers ethically required to commit professional suicide to represent a client? Surely, if you represent this client any future client is at liberty to say they don’t trust you as their lawyer because you ardently defended a white supremacist murderer? Hillary has been publicly criticized, yes incorrectly, for pretty much the same thing hasn’t she. Imagine the campaign that the (self)righteous would publicly mount against you.

    Similarly, any lawyer who takes him on and doesn’t ardently represent him should be immediately disbarred.

    It’s a bit of a lose-lose situation for everyone isn’t it.

    The weird thing is, because of the above, the lawyers he can’t trust are the only ones he has any chance of getting that he actually can trust!

    Ooow, a little breeze of schadenfreude just wafted over me!

    • You’re making a big assumption. Don’t you think he should be given a white lawyer and find out? He’s saying that he assumes a Jewish or Indian lawyer hates him, because he hates them. He’s not saying that they have to share his beliefs.

      And yes, a lawyer is ethically obligated to take on any defendant, and if he worries about what people will think of him, then he’s in the wrong profession. This is boilerplate. John Adams represented the British soldiers that shot Boston citizens. Clarence Darrow represented Leopold and Loeb. Frederick Aiken represented Mary Surrat. Roof is no more despicable or hated than those defendants were.

  6. Paul Compton

    Jack, the report says: “because they “are my political and biological enemies.” ” so he is pretty much saying that he doesn’t trust them because they don’t share his beliefs, not just his ethnicity.

    Yes, I accept your argument that he should be given a shiny whitey if that’s what he wants.

    Yes, a lawyer should represent whoever, doesn’t mean they’ll ever work again; which makes it a pretty tough profession! Much though I loved it, I don’t think Denny Crane kneecapping a rapist/murderer is acceptable, let alone typical, lawyer practice.

    I still feel Roof is between a rock and a hard place of his own making and I can’t honestly say that I’m terribly sorry about that.

  7. Paul Compton

    I’m thinking of the current political climate where people are being publicly and widely targeted for opposing the pulling down of statues or simply not being left enough.

    I could see a white lawyer (hell just at the moment the Jewish bloke is probably even worse off come to think of it) being actively victimized for years, or possibly even murdered, because they represented this creep.

    I can call him a creep, I’m not a lawyer!

  8. Mrs. Q

    I admit this story makes me bristle yet I have to think beyond my own prejudices. My 1st reaction was: If I waited until I found professionals I trusted, like surgeons for example, that were of European, Native American & African descent like me, I would have probably been dead by now. And if I really waited until I found that racial combo & they were also same sex married & biologically female, it would have taken even longer. Sometimes you have to put your trust in something other than finding a match based on such designations.

    I also find annoying the assumption that just because someone is a certain race they automatically favor things related to it. A recent example is former FBI agent Valerie Plame Wilson who initially condoned the idea of Jews being designated as such by the media if Israel was the topic. My former boyfriend is Jewish & he was as anti-Zionism as you can get, for example.

    But…

    This is about criminal law in the courts, which is different from other needs regarding professionals. I can see the importance in this area of trying to match a clients needs because allowing them a fair shake, is necessary for those times people could be easily & wrongly accused. Plus all people, no matter how aberrant their behavior, deserve the right to a fair trial. It’s what keeps us from being, witch burning barbarians.

    Man’s justice will never be perfect, and this case really sets off my ethics alarms, but I think Jack is right, even if I don’t like it.

  9. Other Bill

    What a bizarre situation. Why on Earth wasn’t he simply given a slick, good old boy, Charleston criminal defense attorney right out of the box? And how could this not be adequately addressed by the first judge who reviewed the situation? Weird. Maybe diversity does trump the Constitution these days, even in courts and bar associations. The Arizona bar blasts its diversity trumpet all the time.

    • Other Bill

      Kind of makes me laugh wondering whether ol’ Dylan ever noticed who O.J. Simpson hired to successfully head up his murder criminal defense.

  10. Jack

    I get what you are saying, and I agree. The relationship and the attorney=client privilege belong with the client. As a lawyer, I would find it absolutely hopeless to represent a client who does not trust me, regardless of the client’s reasons. In fact, I have withdrawn from cases because the attorney-client relationship had deteriorated to the degree that there was no further mutual communication, respect, or cooperation. Sometimes, we lawyers forget that part of the attorney-client relationship.

    In the Roof situation, I would not have wanted to be one of the court-appointed lawyers on his case, for the very reasons you pointed out in your post. The point on appeal would be that he did not have zealous representation or that the representation was ineffective. That being said, I suspect the 4th Circuit was thinking of the ‘larger bowl’* in that the legal system would grind to a gear-crushing halt if every defendant demanded a court-appointed lawyer of certain characteristics. Perhaps, the 4th Circuit’s reasoning was based in judicial resources and/or judicial economy, as well as an eye toward, “Oh, no you don’t get to play with the legal system that way, Mr. Roof”. I accept without reservation that the court-appointed lawyers were of the highest caliber. Those should not be the considerations, though, as the client is the one who should be able to trust his/her lawyer.

    Roof has backed himself and the court system into a corner, Constitutionally. If he demanded that only a David Duke supporting white supremacist represent him, then he has instantly caused a problem under the Constitution, which guarantees him a fair, speedy, and impartial trial and adequate assistance of counsel, almost setting up an appeal for denial of due process. The 4th Circuit probably thought, “Nice try. Nope.”

    jvb

  11. If the court is obligated to keep looking for public defenders the accused will work with, couldn’t a defendant intentionally tie up the system by saying, “Nope, not this one…no I can’t work with that one either…nope, find me another one…nope, can’t use that one…” what’s a judge to do in a situation like that?

  12. Isaac

    Might an Indian lawyer would be acceptable to a Nazi, seeing as Hitler seemed to subscribe to Blavatsky’s occult “root race” theory that the Indians and Europeans were both Aryans from the same noble ancestry, and not “savages” like non-Aryans races? Hitler even appropriated the Swastika from the Hindus.

    I don’t actually remember if Roof was an actual wannabe Nazi or more a standard KKK type. I did read his manifesto once. The thing that jumped out at me was that what “radicalized” him and got him started into dumb supremacist websites was learning that NBC doctored George Zimmerman’s 911 call to make him sound racist. That was…actually a real thing that happened, and probably made him feel like he had discovered an actual mass conspiracy against whiteness. You know how Hillary says that using the expression “radical Islamic terrorism” is bad because it will anger all the peaceful muslims and turn them into terrorists or something? I wonder if she’s sympathetic to the peaceful redneck boy who was radicalized because the corporate news lied in order to vilify his “people.” (I wouldn’t be sympathetic, but that’s consistent on my part.)

    • Other Bill

      Good catch on the Aryan race thing, Isaac. I need to look into this Blavatsky guy. I remember reading up on early Indian history a few years ago and wondering how the heck Aryans from ancient India had caught the attention of our favorite Austrian water colorist.

      • Madame Blavatsky.

        The best source for background into the Aryan race roots of Europe is possibly Houston Chamberlain’s ‘The Foundations of the Nineteenth Century’. Another very interesting title and author is ‘The Religious Attitudes of the Indo-Europeans’ by Hans FK Gunther. Chamberlain preceded Nazism but Gunther was concurrent. Chamberlain is definitely not pro-Semite. He is generally described as one of the fathers of anti-Semitism. But I read most of his two volumes and at the very least was amazed by the depth of his historical analysis. It is amazing by any standard.

        Three years ago when I first visited the Counter-Currents website and merely read the titles of some of the books there, I closed the page and did not go back. I simply could not even entertain a positive view of any material so radically opposed to my understanding and view. Little by little I explored the titles and, just as I have done with Chomsky and many extreme Lefties, have a solid first-person grasp of their ideas. It is always different from what people say! Those who do not read the material themselves! David Duke’s biography is worthwhile and, in his way, he is a ‘true American patriot’.

        The study of the Indo-Aryan roots of European culture has nothing to do with Nazism. People like Walter F Otto explored the idea of Indo-Aryan roots on many different fronts. And so too Werner Jaeger and many other people. The study of the background of the languages of Europe has its origins in these previous cultures and different aspects of their *sensibilities* have carried through.

        And many people in Europe now, as well as in America, are working to rediscover those cultural and historical connections as they attempt to reclaim *identity* and to understand themselves. There are many people who first were introduced to Indian spiritual and metaphysical ideas in the Sixties (though there has been 150 years of solid interest among English, French and German scholars and philologists) and who managed to continue their study more seriously. The Hindus have a very very rich tradition and there are many many points where it can intersect with European concerns.

        Even people like Madison Grant (Harvard) and Lothrop Stoddard (also Harvard I think) were interested in the origins of European culture. It is a vital and very interesting subject. All of these studies became forbidden, more or less, for political and social reasons, after WW2.

        I do fully understand that many and even most Americans, terrified by any notion of race and self-identity, cannot even allow these thoughts to be entertained, and that is as a result of the propaganda terror in the aftermath of the Second World War.

        I know that Gunther was admired by Hitler (who also held in high esteem Dickens and Harriet Beecher Stowe’s ‘Uncle Tom’s Cabin’ among many titled you’d not expect!) and ‘The Religious Attitudes of the Indo-Europeans’ is really an interesting book.

        It is completely imperative to get out from under the crushing power of the Politically Correct and to dismantle its wires that enter the brain. To be able to see somewhat unencumbered, a little more clearly perhaps, a little more realistically and honestly, opens up a vista that, for those held tightly by their perceptual models, is closed off.
        _________________

        PS: If anyone deserves the death penalty (though it should probably be outlawed for higher ethical and moral reasons) it is Dylann Roof. There is no more serious crime than to have murdered people in the coldest of cold blood, consciously, but that much more worse to have also done it in a place of worship.

  13. There is precedent for the 4th Circuit’s ruling.

    http://www.washingtontimes.com/news/2000/mar/29/20000329-011038-9086r/

    As the sentencing hearing began, Mr. Savage said Williams wanted to withdraw his guilty pleas and discharge Mr. Savage to get another attorney. Williams previously has protested the lawyers assigned to him by the public defender. He objected to the appointment of veteran assistant public defender Lois Reynolds Coon, a white woman, to handle his defense, claiming she was racially prejudiced in favor of the white victim.

  14. http://www.theblaze.com/contributions/a-terrorist-shot-up-a-church-but-the-medias-too-busy-talking-about-nfl-players-kneeling/

    In other church shooting news, where the shooter is a Sudanese immigrant who was ultimately held at bay by another man with a gun.

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