[image-1]State and federal attorneys continue to grapple over how and when the fate of accused Emanuel AME Church shooter Dylann Roof will be decided.

Late last month, Ninth Circuit Solicitor Scarlett Wilson asked that Roof’s state trial precede his federal trial, which is scheduled to begin with a final round of jury selection on Nov. 7. In her request, the lead prosecutor for the state called the current trial schedule problematic, arguing that the federal trial date poses a burden to the families of the victims and undermines the state’s efforts to pursue the death penalty. Roof is currently set to face trial in state court on Jan. 17, 2017, with jury selection beginning in early December. Roof’s attorneys responded to Wilson’s motion to reschedule Wednesday, calling her argument “patently inaccurate” and harmful to the judicial process.

“The solicitor’s apparent desire to disrupt this court’s previously established schedule to move the trial even earlier is just the sort of reckless and shortsighted prosecutorial tactic that has led to reversals and retrials of capital cases years and even decades after the cases were first tried, and that should not be countenanced by this court,” the defense wrote in a recent court document.

Roof’s attorneys argue that if Wilson was truly concerned with certainty and finality, she would allow the current trial schedule to run its course or accept the defendant’s offer to plead guilty in state court and settle with sentence of life in prison without the possibility of parole. Addressing Wilson’s claims a federal court is less likely to impose the death penalty than South Carolina, Roof’s attorneys cited research that found that 60 percent of all state prisoners condemned to death by the state have seen their sentences set aside, generally as a result of error on the part of prosecutors or the court or because a judge determined that the prisoners had been condemned without adequate defense.

“It was predictable that the unprecedented decision of both the state and federal governments to seek the execution of the same man at the same time would lead to scheduling problems,” wrote Roof’s attorneys in this week’s response. “These problems are not insurmountable, but they cannot be overcome by undermining the fairness of the defendant’s trial and sentencing through the unseemly spectacle of a rush ‘to beat the federal court to trial’ in state court, as the solicitor now seems to be proposing.”

Circuit Judge J.C. Nicholson, who is overseeing Roof’s state trial, will hear arguments next week regarding the scheduling requests, according to Wilson. Meanwhile in federal court, parties will meet later this month to discuss matters of jury selection and evidence related to Roof’s mental health. Attorneys for both sides have not yet settled on the pool from which potential jurors will be selected. The defense has suggested jurors be selected from the Charleston area, while federal prosecutors are calling for a statewide pool unless Roof waives his right to a venue challenge and allows the trial to take place locally.

In their argument for calling jurors from across South Carolina, prosecutors cite the statewide impact of the attack at Mother Emanuel as well as the need to protect “the court, the government, the victims, and the public from an 11th-hour attempt by Roof to derail the trial that he requested start on Nov. 7.”

Roof’s federal defense team has also filed a motion to dismiss his indictment, claiming that he has not been properly charged under the rules of the U.S. Constitution. The defense states that the charges of obstructing religious freedom must be dismissed because they exceed the limits placed on the federal government to criminalize non-economic intrastate offenses as they relate to the Constitution’s Commerce Clause, which allows Congress to regulate commerce among states. Arguing that federal intervention blurs the line between national and local authority, the defense claims that the link between the charges of religious obstruction made against Roof do not affect interstate commerce and therefore fall outside of federal jurisdiction.

“Mr. Roof lived in South Carolina, all of the alleged preparation for the crime took place in South Carolina, and the crime was committed in South Carolina,” the defense stated in their recent motion. “The only potential links to interstate commerce alluded to in the indictment are the use of the internet and the use of a gun and ammunition that had been manufactured out of state.”

U.S. District Judge Richard Gergel is scheduled to meet with opposing attorneys in the federal case during a hearing on July 18.