Charleston Shooting - Federal Hate Crime or State Mass Murder? An Assessment of the Jurisdictional Debate

Some crimes are so heinous and despicable in nature that the simple act of writing about them makes one almost seem complicit. Wednesday night's slaughter of nine innocent church goers in Charleston, South Carolina is exactly that. My initial reaction is to say nothing for that precise reason. However, as an attorney it's often hard for me to keep my mouth shut; as a blogger, it's hard not to blog; as a criminal defense lawyer and legal analyst it hard not to provide commentary. To paraphrase Geico, It's what [I] do. So, with sincere sympathy for, and sensitivity to, the victims and their families, and with empathy and respect for the State of South Carolina and our Nation, here goes:

At the same time South Carolina begins legal proceedings against accused mass murderer Dylann Roof for the shooting deaths of nine African-American church goers inside the sanctuary of Charleston's iconic Emanuel African Methodist Episcopal Church, the FBI is conducting its own parallel federal criminal investigation. Debate has already arisen on the issue of where, and how, Roof should be prosecuted. South Carolina has one set of laws that fit the underlying fact pattern, as well as (at least on paper) primary jurisdiction. The United States has another. There is no doubt, the allegations in this case satisfy South Carolina's Capital Murder elements, under the South Carolina Code Title 16 Chapter 3 Article I Sections 16-3-10 through 16-3-28. They also satisfy all elements of the 2009 Federal (Shepard/Byrd Act) Hate Crimes Statute under 18 USC § 249. As a former state and federal prosecutor I've already been asked whether one is a better/more viable means of prosecution than the other. (For more about this, read Boston Herald Legal Commentator, Bob McGovern's, thoughtful write-up in today's paper)

There is no question the Shepard/Byrd Hate Crimes Prevention Act makes it easier to prosecute crimes of this nature by expanding the classes of victims now covered to include race, national origin, gender, sexual orientation and sexual identity and eliminating required proof that the victims were engaged in one of six enumerated categories of federally protected activity at the time the crime was committed. Moreover, with the sole required mens rea (criminal intent) being willfulness, and other required elements being proof of racial, etc., motivation ("....because of actual or perceived, race etc...") and use of a firearm, fire, or dangerous weapon, all prosecutors need to prove in addition to this, and an easy to establish affect on interstate commerce, is the attack itself. If the result is bodily injury, the maximum penalty is ten years in federal prison. "If death results," it's life.

The benefit of prosecuting a case like this in federal court is first, the elements of proof are less demanding than they are for murder, given the latter's requirement of proving both malice and specific intent beyond a reasonable doubt, and considering the varying degrees that can sometimes result in jury compromise (i.e., 2nd not 1st degree), as well as available jury options to return alternative verdicts like manslaughter whenever the facts allow. Moreover, while there is no doubt in a case such as this that proof of (racial) motive will play a prominent role in any state prosecution as well, pursuing this as a federal hate crime labels it from the outset exactly what it is: A HATE CRIME; and properly keeps the jury's focus there, from start to finish. (I understand that less government advocates will say, "No, this is murder"; Okay, let's call it "hate crimes murder".)

On the other hand, the federal hate crimes statute does not allow for the imposition of the death penalty, as South Carolina's Capital Murder Statute does. For that reason, and because "the Feds" tend to defer to the States in matters where parallel jurisdiction is merely statutory and established state criminal statutes ( like murder) are implicated and state sanctions are just as sufficient , if not more so, South Carolina, with its death penalty for capital murder cases, appears to have the upper hand.

Interestingly, a federal death penalty could apply under 18 USC § 924(c), if investigation reveals Roof was either armed with, or deployed, armor piercing ammunition during commission of the crimes (to which he has reportedly confessed), since a federal hate crime clearly constitutes a "crime of violence" under the expanded statute, "a firearm was used,...and death resulted." However, there is a degree of extension there that is not only based on something that hasn't been revealed and may not be involved—armor piercing bullets, but perhaps is likely too attenuated to justify the Feds trying to elbow aside the state of primary jurisdiction simply to incorporate and employ its new hate crimes statute.

Ironically, a separate federal criminal statute that might also apply to the facts as reported here is amongst the 41 specified federal crimes (which now include murder during kidnapping, murder related to carjacking, murder related to a continuing criminal [drug] enterprise, and death resulting from an airline hijacking), where the death penalty could also be applied. Under 18 USC § 247, a person who "intentionally obstructs by force or threats of force, any person in the enjoyment of that person's free exercise of religious beliefs," where death results from the perpetrator's actions in violating the statute, "may be sentenced to death." Given that the victims were gunned down inside a church sanctuary while actively participating in a group Bible Study, it's possible the feds could pursue this as a death penalty case on those separate specific grounds. However, doing so may be too much of a "square peg in a round hole" proposition to be plausible; it might also give defense attorneys an exploitative opening that wouldn't otherwise exist under the federal hate crimes or state capital murder statutes. Moreover, it would necessarily take the focus away from, and diminish, the understandable eagerness of prosecutors on either side of the jurisdictional divide to pronounce, and prove, racial animus/hatred as the central motive behind these horrible crimes.

Can both the United States government and the State of South Carolina pursue charges against Roof? Despite inevitable double jeopardy claims and arguments that would certainly be raised, the short answer is "yes"; these are different crimes, with different elements of proof, involving different sovereigns. While there is also no bar against simultaneous prosecutions either, it's more likely than not the feds would defer, or delay, prosecution pending the outcome in state court, and only proceed in the unlikely event of acquittals (as they did in the Rodney King [police] beating case United States v. Koon, 833 F. Supp. 769, 774 (C.D. Cal. 1993), aff’d in part, vacated in part, 34 F.3d 1416 (9th Cir. 1994) and the Byron De la Beckworth murder case of civil rights activist Medgar Evers (Mississippi v. De la Beckworth). Still, one never knows and (notwithstanding the discovery nightmares it would occasion and the internecine warfare amongst enforcement agencies it would engender) the bottom line is the Feds can do what they want, when they want; so too South Carolina, especially with statutes of limitations not applying.

So who do I think should take the lead here? I think because South Carolina has primary jurisdiction, it is they who should take the lead role in prosecuting Roof. Assuming open and free cooperation (which sadly, and from personal experience, is never a guarantee or given), a lot can be gained from the Feds assisting and augmenting South Carolina's prosecution by conducting one of its own under the auspices of investigation of separate federal criminal violation(s), and then sharing resources and results with the State. This can only help make South Carolina's murder cases against Roof that much stronger, while providing a "we're ready, too" contingency plan should the unexpected ultimately happen in state court. To be sure, the "giveaway" in handing South Carolina the lead is that the case will not go forward as a hate crime, per se. However, prosecutors in state court will still be free to establish and prove racial hatred as the underlying motive. Also, the requirement they prove malice in order to sustain a capital murder conviction isn't necessarily a bad thing to contend with since it's no stretch to say, if any case epitomizes just that: pure, unadulterated, unjustifiable, malice – it's this one.

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.