Earlier this week, Dylann Roof, the man accused of killing nine people at a Charleston, South Carolina, church was charged by the People of South Carolina in State Court with nine counts of homicide and possession of a firearm during the commission of a violent crime.

On June 20, 2015, I appeared on Fox and Friends Weekend (@ffweekend) on the Fox News network with Joanna Spilbor and Anna Kooiman (@annakooiman) to discuss a possible insanity defense and whether prosecutors will seek the death penalty.

As of this appearance and blog post, the Defendant has only been charged with State Court crimes. On Friday, United States Attorney Lynch declared that the Federal Government was investigating this murder as a hate crime and domestic terrorism. These additional facts and circumstances can give the US Attorney Lynch the option to charge and prosecute Roof with federal crimes in Federal Court. If not, Roof will be prosecuted in State Court where he can be sentenced to death because of the murders.

Insanity

In South Carolina, according to § 17-24-10, insanity is an affirmative defense to a prosecution for a crime that, at the time of the commission of the act constituting the offense, the defendant, as a result of mental disease or defect, lacked the capacity to distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong. A finding of insanity demands a verdict of Not Guilty! Thereafter, the defendant will be remanded to the State Psychiatric Hospital and would remain there until he or she is deemed sane. At that point, the defendant may be released into the public with court ordered safeguards to protect the public.

As I discussed in this appearance, it is very early in the investigation. Forensic Psychologists and Psychiatrists will have to examine the Defendant and the facts surrounding the murder to determine the Defendant’s mental state. However, based on some of the information known through media reports, I anticipate that the Government will argue that Roof was sane at the time of murders based on some of the following facts;

– prior statements to witnesses about hating African Americans,
– his actions and statements before and during the incident including using a gun to shoot and kill and telling a survivor that he wouldn’t kill her so she could tell his story, and
– his flight from the crime scene including leaving his vehicle and driving into North Carolina which notifying anyone where he was.

Death Penalty

South Carolina is a state which still has the Death Penalty. Should this case stay in South Carolina state court, the County Solicitor, surely working in concert with the State Attorney General, will have to decide if the Government will seek the death penalty. According to South Carolina state statute, notice of this intention must be filed within 30 days from the trial date. In order to seek the death penalty, the Government must prove one or more aggravating factors, which would include the fact that he murdered two or more people during one act or pursuant to one scheme or course of conduct. This decision to seek the death penalty solely rests with the Prosecuting attorney.