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Insanity Law Is as Insane as White Supremacy

Everyone has heard of “suicide by cop,” but you just about have to be a judge to understand “suicide by judge.” Dylann S. Roof is the latest.

Dylann S. Roof, facing the death penalty in the killing of nine African-Americans in a Bible study group at Emanuel African Methodist Episcopal Church in Charleston, South Carolina has been allowed to take over his own defense.

Everyone has heard of “suicide by cop,” but you just about have to be a judge to understand “suicide by judge.” Judges like to be complicit in suicide about as much as cops do.

The people who attempt suicide by judge are rarely sympathetic characters. His youth and his miserable family life are all that might recommend mercy for Dylann Roof, the self-described white supremacist, 22-years old and from the looks of his political manifesto unscathed by very much education or human feelings.

The federal government is putting Roof on trial for his life over the objections of his victims’ next of kin and in spite of Roof offering a guilty plea in return for a life sentence. Contrary to folklore, a life sentence without parole is much easier on the taxpayers than the death penalty. If the government were a person, that decision would be enough to raise the question of its sanity, but the government has chosen to give Dylann Roof the opportunity to commit suicide by judge.

Are suicides sane? What about somebody who sits with complete strangers for an hour of Bible study and then shoots them? Is that sane?

It is useless to equate sanity with behavior that seems logical. Was it logical for a retired man with no criminal record to kill his neighbor over a barking dog? Was it logical to think that assassinating the president would impress Jodie Foster? (And if it did, what would you gain beyond somebody to visit you in prison?)

Those cases are real, and the attempted assassin of President Reagan could afford a parade of expert witnesses who got him found not guilty by reason of insanity. The public outrage over the acquittal led to massive retrenchments in state insanity laws.

Before the attempt on Reagan, several jurisdictions were beginning to parse the insanity defense in a manner that allowed more contemporary medical evidence and recognized that it’s hard to make sanity a “yes or no” question. After the outcry, there was a headlong retreat to the 1843 M’Naughten Rule, so-called for an attempted assassin of the English prime minister.

M’Naughten requires that from “a disease of the mind,” the killer did not understand what he was doing or, if he did, he did not understand it was wrong. In other words, if the killer really believed that the victim was a space alien who had to be stopped to save the planet, he had a noble motive and should not be punished.

Traditional Cherokee law, in common with the law in many other tribal nations, limited the inquiry to whether the accused caused the death without regard to why. Even an accident was an unlawful homicide. This avoids hard questions at the expense of fairness.

A finding of not guilty by reason of insanity does not result in the accused going free. He is hospitalized until enough doctors will sign off on an opinion that he is no longer dangerous to himself or others. The attempt on President Reagan’s life was on March 30, 1981 and the assassin (who I will not name) just got out of lockup this year and even though he’s out he still has significant restrictions on his freedom.

An accused could be too sane for a not guilty by reason of insanity but still incompetent to stand trial. Just as everyone is presumed to be sane, everyone is presumed competent to stand trial, which means you understand the nature of the charges against you and have the ability to aid your lawyer in your defense.

Do they release you if you are not competent to stand trial? Of course not. You get confined to a mental hospital and treated until you become competent. That can result in being locked up longer than you could be locked up for the crime itself.

You can be sane and competent to stand trial but, since 2008, not competent to defend yourself. This ruling came in the case of Ahmad Edwards, who was agreed by all to be schizophrenic. After being found competent to stand trial, Edwards left the U.S. Supreme Court embarrassed to find him competent to defend himself when he filed incomprehensible gibberish like this:

Defendant moves the grounds of this court to dismiss this cause: if any notation of grand avoids a bill immunity proceeding at criminal information true-bill grounds. Defendant prays psalm 15.5 for innocent of court property to be dismissed wherefore, so shall it be done.

The SCOTUS could not endorse such nonsense but neither could it bring enough common sense to reverse the finding that the defendant was competent.

There is one more competency wicket some criminal defendants have to pass and it seems likely Dylann Roof will need to clear it. To be competent to be executed, you must be aware of what is about to happen to you and why.

Competency to be executed is further complicated by the ethical standards of medical professions that mimic the Hippocratic oath: “First do no harm!” Because of professional ethics, it is hard to get an expert opinion that someone is competent to be executed or to find a doctor who will treat a condemned person to make him fit to be killed.

People have been executed who were not well enough in touch with reality to bathe themselves, but the all time craziest person who was not crazy enough to live was the man who was so pleased to get what he wanted for his last meal he only ate half of it “to save the rest for later.”

None of these intersections of law and mental health make common sense, but none is so frustrating for judges as the right to self-representation. When Judge Richard M. Gergel granted Dylann Roof’s motion to represent himself, the experienced death penalty lawyer who had been appointed to the case, David I. Bruck, scooted out of the lead chair so his client could sit there.

Bruck is not excused. He is required to sit there and advise his crazy client but his crazy client is not required to take the advice or even ask for it.

Judge Gergel can only watch and feel complicit in the slow motion suicide. In a bench trial, the judge can jump in and ask witnesses critical questions that did not occur to the non-lawyer trying to practice law. But if you do that with a jury in the box, it would give the jury the impression you are not neutral.

So you sit there like a piece of furniture asking yourself if this is why you spent all those years studying law and wondering how long it would have taken to learn how to ringmaster a circus?

This article is written to offer condolences to Judge Gergel, but also to the survivors of Dylann Roof’s rampage, who now must submit to a cross-examination based in the same racial fantasies that resulted in the death of their loved ones.

Is it really necessary to go through this circus to reach a just result defined as killing a 22-year-old who has agreed to spend the rest of his life in a cage? With apologies to Charles Dickens, if the law supposes that, then the law is an ass.

UPDATED DECEMBER 9, 2016: On December 4, Dylann Roof gave Judge Richard M. Gergel a handwritten note Roof had put together over the weekend asking if he could “hire” his court-appointed defense team back during the guilt phase of the trial but still represent himself during the sentencing phase?

With a caution that Roof could not change his mind again, Judge Gergel granted the motion, placing a licensed attorney back in the lead seat.

The usual reason a criminal defendant wants to run the show is so evidence of his mental health issues will not come out publicly. There is no way a competent lawyer could promise not to bring mental health issues into the trial.

An accused killer who had a political motive—in this case, inciting a race war that Roof thinks would bring out the truth that white people are superior—does not want to hear an argument that his mental state was impaired when he did his good deed for white supremacy. It’s much harder to refrain from bringing up mental health issues in the penalty phase, when the slow suicide will be by jury rather than by a judge.