The Race to Execute a Racist

Printed January 11, 2017 in the Danbury Newstimes

You only die once. So why are both federal and state prosecutors separately trying to kill the 22-year-old man who, in July 2015, went on a racist rampage, killing nine people in a church in Charleston, South Carolina? Jurors in a federal court there on Tuesday made one of the most important and difficult decisions of their lives. The decision came at the end of the penalty phase in the man’s trial (DSR) where the jury’s choice was either execution or a “life without parole” sentence.

CHARLESTON, SC - JUNE 19: Kearston Farr comforts her daughter, Taliyah Farr,5, as they stand in front of the Emanuel African Methodist Episcopal Church after a mass shooting at the church that killed nine people of June 19, 2015. A 21-year-old white gunman is suspected of killing nine people during a prayer meeting in the church, which is one of the nation's oldest black churches in Charleston. (Photo by Joe Raedle/Getty Images)
CHARLESTON, SC – JUNE 19: Kearston Farr comforts her daughter, Taliyah Farr,5,in front of the church that where nine people were murdered. (Photo by Joe Raedle/Getty Images)

 

Mass murder rampages are always horrific. This one differs from other rampages where victims are usually chosen more randomly. The victims in the 2012 Sandy Hook Elementary School rampage, for example, only had in common that they were affiliated in some way with the school, where first grade children, teachers and school administrators were all killed. In that tragedy, the shooter’s motives were never realized, and there is no requirement that it is.

The South Carolina murderer had a motive. He wanted to punish African Americans for perceived injustices he imagined they perpetrated upon whites. A grotesque feature of his murderous scheme is that he sat and prayed in the African Methodist Episcopal Church with his victims just before he killed them.

The sentencing hearing occurring now is a federal capital murder trial. Federal murder cases used to be rare. According the Death Penalty Information Center, in the nearly 30 years since 1988 only three federal defendants have been executed. Today there are 62 inmates on federal death row, including the man convicted in the 2013 Boston marathon massacre. Federal capital murder trials are unusual because homicide in the U.S. legal system is typically a state or local crime, investigated by state or local police and prosecuted by state or local prosecutors.

Not all states allow for the death penalty, but South Carolina is one of the 31 states that does. In fact, South Carolina state officials have also indicted the man on nine murder counts and will begin a second capital murder trial just as soon as the federal trial is over.

Putting an offender on trial twice for the same offense may look like a violation of the “double jeopardy” clause of the Fifth Amendment of the U.S. Constitution, but it’s not. That’s because the U.S. and South Carolina are separate legal entities and the “dual sovereignty” doctrine allows prosecution for the same offense by both governments. The fact that both can put DSR on trial doesn’t mean it’s a good idea. Victims will go through the traumatic experience of witnessing the trial, some testifying a second time. Trials, particularly capital trials, with a very lengthy appellate process, are a considerable expense for taxpayers to endure even once.

Some penalties can coexist after separate federal and state trials. A prison sentence for years, fines or restitution orders can all coexist. The most likely sentences in these two cases, though, are either life without parole or death, and both, obviously, can only be carried out once.

Why is the U.S. Justice Department pursuing DSR? In charging him, Attorney General Loretta Lynch pointed to the racial hostility nature of the massacre and the existence of federal hate and racial bias crimes as a rationale for moving forward. The explanation for duplicate capital murder trials is unsatisfactory. It’s true that charging bias and hate crimes serve a cathartic purpose for a badly traumatized African American community, and go to the heart of the offenses. How important is it for the crimes charged to expose the motivations of the mass murderer?

When the evidence is put on, the upcoming South Carolina state murder trial will expose the same motivations the federal trial did. Isn’t it enough for DSR to be only once charged with nine counts of murder, followed by one just sentence? Perhaps the Justice Department and the President are hedging their bets, not willing to take any chances of a failed state prosecution and the effect it would have on the nation.

Most rampagers are suicidal and most rampages end with the rampager taking their own life or being gunned down by police. This rampager is no different. He fully expected to be confronted by police either inside or outside the church. His federal sentencing hearing is a spectacle. Why broadcast his bigotry a second time? If it’s death he wants, it’s likely that’s what he’ll get.

Regardless of the outcome of both trials, one thing is certain. He will only die once, and no number of trials will restore the lives of his innocent victims.

Editor’s note: DSR is Dylann S. Roof. Diamond intentionally minimized the exposure given to him, following a protocol advocated by NO Notoriety, a group of murder survivors who believe infamy is one of the goals of rampage murderers.

James Diamond practiced criminal law in Danbury for 25 years. Today he teaches at the University Of Arizona College Of Law.

 

Should People Who Fail to Stop Rampage Shooters Be Arrested?

This column first appeared in The Danbury Newstimes Nov. 22, 2015

 

For nearly two months, Joey Meek sat in solitary confinement in a South Carolina jail cell. Meek, 21 years old, is a friend of Dylann Roof, the accused rampage murderer facing capital murder charges for the nine racially motivated murders committed this summer at the AME Baptist Church in Charleston.

 

Dylann_Roof_mugshot
Dylann Roof

In September, Meek was indicted on federal felony charges. The United States Attorney, a federal prosecutor, says Meek had actual knowledge of Roof’s murderous plans and failed to take any action to warn authorities. That charge, “Misprision of a Felony,” is a fairly rare and archaic crime. The second charge filed against Meek is that he made a false statement to the FBI. The federal prosecutor says, after the massacre, when the FBI asked Meek if he knew the specifics of Roof’s plans to shoot people at the church, Meek said he did not. For those two charges, Meek himself faces two serious federal felonies, many potential years in federal prison and sat in solitary confinement unable to make bond until last week. Meek was released recently on a reduced bond while his case continues to work its way through the federal court.

A few family members of the victims of Roof’s massacre opposed reduction of Meek’s bond and his pre-trial release by federal Magistrate Shiva Hodge. In effect, Meek has become a scapegoat for the anger and rage that Roof, no doubt, deserves. But how much blame should be focused on Meek? Meek, a childhood friend of Roof’s, let Roof sleep on the floor of the Lexington, South Carolina, trailer he lived in.

To Meek’s credit, after seeing news reports of the church tragedy, upon seeing Roof’s picture on television and recognizing him, Meek immediately called the police. When interviewed, he told the FBI that in the days preceding the massacre he was with Roof when Roof got drunk and went on a racial tirade, saying he was going to “do something crazy.” Joey Meeks and his girlfriend took away Roof’s gun and hid it from him. They returned the gun to Roof the next day, saying they didn’t take his drunken rant seriously.

In opposing Meek’s bond reduction and release it is easy to sympathize with the emotional response of the victims; if anything could have been done to spare the lives of their fathers, mothers, brothers and sisters they believe it should have been done. But is Meek the right target of their anger and frustration?

Joey Meek is hardly the first non-shooter to be arrested in the aftermath of a rampage shooting. Police often make arrests of people they claim gave any help to the rampager. What makes the arrest of Joey Meek so unusual is that his isn’t an arrest for assisting a rampager, but for failing to take action to prevent it. There are always warning signs before rampage massacres are committed, warnings sometimes signaled to family members, friends, school officials, police or mental healthcare givers. Knowing when to take the warnings seriously is a significant challenge, even for trained, skilled professionals. For non-professionals it’s even trickier. For a 21-year-old high school dropout, should it be criminal?

In the wake of the rampage shooting epidemic, several states, like Connecticut, Indiana, Texas and California, have passed laws to allow for expedited seizure of guns from people who pose a threat to public safety. But even where those laws exist, somebody has to become aware of the threat and know when to take it seriously. If they report the danger, the case quickly goes to court where a judge holds a restraining order hearing, but the threat has to meet legal standards for action to be taken against the purported dangerous person.

Mental health scholars confirm the difficulty in predicting violent behavior. “On the face of it,” says Dr. Jeffrey Swanson, a medical sociologist at the Duke University School of Medicine, “a mass shooting is the product of a disordered mental process. You don’t have to be a psychiatrist: What normal person would go out and shoot a bunch of strangers? But the risk factors for a mass shooting are shared by a lot of people who aren’t going to do it. If you paint the picture of a young, isolated, delusional young man―that probably describes thousands of other young men.”

Fueling the emotions expressed by family members toward Meek, Morris or Jourdain—anybody associated with a rampage or rampager—is not simply a desire to see somebody punished. They often cry out for any scintilla of information of how or why their loved ones died. They cry out in pain to make sense of a senseless killing. Having a conversation with somebody like Meek would be a positive step toward the individual or community healing that needs to occur after a mass murder rampage.

The United States Attorney prosecuting Meek may be pursuing a strategy of applying pressure on Meek to get him to help state and federal prosecutors make their cases in court against Roof, who faces the possibility of capital punishment. Arresting, prosecuting or imprisoning Meek makes any conversation or contribution to community healing much less likely.