State and federal prosecutors are proceeding with parallel but linked investigations of the 21-year-old Columbia-area man accused in the racial killings of nine African-Americans at a Charleston church.
But neither U.S. Attorney Bill Nettles nor 9th Circuit Solicitor Scarlett Wilson will say yet whether Dylann Roof will face one trial, in either state or federal court, or two, with one in each court.
“That is a decision that will be made at a time in the future, and in conjunction with the solicitor,” said Nettles late Monday, after a meeting in Charleston with Wilson.
Right now, Nettles said, two trials are still a possibility. “We are working together, and we are pursuing the charges that fall within our respective jurisdictions.”
Wilson already has brought nine state murder charges against Roof in connection with the June 17 killings at Emanuel AME Church. Under S.C. law, Wilson could seek the death penalty because more than one person was killed. She has not yet announced an intention to do so – though Gov. Nikki Haley said shortly after the killings that the suspect deserves the death penalty if found guilty.
No federal charges have yet been brought against Roof. However, a federal judge magistrate has been named to preside over any future criminal proceedings in federal court. Also, two South Carolina federal prosecutors have been appointed to the case and two defense attorneys.
The Justice Department in Washington has said Roof is being investigated for hate crimes.
“It’s an important case, one that both the state and the nation are interested in, and it’s good that both are pursuing it at this time,” 1st Circuit Solicitor David Pascoe said of the state and federal investigations. “It would not be double jeopardy because state and federal are ‘dual sovereigns.’ ”
If federal prosecutors seek the death penalty, they likely will have to cobble together charges related to hate crimes, weapons and civil rights laws, said Pascoe, who has sent two people to death row in federal cases.
“In federal court you have to look at several different acts and statutes to make the case. But state law is not as circuitous,” Pascoe added. “You have to look at just one law – murder.”
Columbia defense attorney Johnny Gasser, who as a federal prosecutor in the early 2000s won three federal death penalty cases, said Monday it’s possible only one trial will be held – in state court.
“The Justice Department normally gives great deference to state prosecutors,” Gasser said. “It happened in Charleston, and the citizens there would demand that justice be vetted in their jurisdiction and a very, very public trial be held in state court there.”
While there is no hate crime component in S.C. laws, Gasser said, allegations and evidence that Roof’s racial views prompted the June 17 killings would be relevant in a state trial. “All that comes in as potential evidence as to motive and malice in a state trial. State prosecutors can get that evidence in and refer to it as a hate crime,” said Gasser, who also served as an assistant solicitor in Richland County.
Although both state and federal governments have the right to bring Roof to trial, Gasser said, “I think most taxpayers would wonder why there would be the expenses of two different trials – but I can understand why each would do so.”
Columbia defense attorney Joe McCulloch, who has been involved in a number of high-profile criminal cases, said, “Given the politicization of the tragedy, it’s very likely there would be both state and federal prosecution.”
McCulloch represented Martha Childress, a University of South Carolina student who was shot and paralyzed in 2013 in Five Points. Her assailant, Michael Juan Smith, was charged with state crimes in the matter, including attempted murder. However, federal prosecutors tried Smith first, on weapons charges, and he was sentenced to 10 years. The status of his state charges was not known Monday.
It is rare but not unheard of for there to be both state and federal prosecutions for the same crime.
After the 1995 terrorist bombing in Oklahoma City that killed 168 people, one of the two defendants, Terry Nichols, underwent trails in both state and federal court on murder and murder-related charges. In both trials, the jury deadlocked on the death penalty. Nichols is now serving life in prison in a maximum security prison in Colorado. Co-defendant Timothy McVeigh was convicted in federal court and sentenced to die. He was executed at a federal prison in 2001.