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:
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