CHARLESTON, S.C. _ Federal Judge Richard Gergel has set a hearing Wednesday in Charleston to determine whether to proceed with keeping secret some potential evidence in Dylann Roof's upcoming death penalty trial.
In the 14-month legal saga concerning Roof and the June 2015 racial killings at Charleston's Emanuel African Methodist Episcopal Church, nearly all court hearings have been public. Gergel previously set a hearing Thursday that is closed to the public and media to decide which evidence would not be admissible at trial.
During Thursday's hearing Gergel will listen to arguments from defense and prosecution attorneys on whether certain evidence will be allowed in Roof's upcoming trial in November. Gergel has said that hearing should be closed to protect Roof's right to a fair trial.
Lawyers for Charleston's WCBD-TV and the Post & Courier newspaper have filed motions requesting the judge hear their arguments on why Thursday's evidence hearing should be open.
In an Aug. 16 order, Gergel said he wants Thursday's hearing to be closed because "making this evidence public before (a judge) determines whether the evidence is admissible could expose prospective jurors to evidence that they may not properly consider in reach a verdict."
In arguing for an open hearing Thursday, attorney Carl Muller for WCBD argued that "closing the courtroom" could undermine Roof's right to a fair trial "by creating widespread suspicion that a blanket is being thrown over truth, and justice is being pushed aside by canny lawyers and the court."
In his motion to Gergel, Muller cited a 2006 South Carolina Supreme Court opinion in a death penalty case whereby the five justices overturned a trial judge's decision to close a pretrial court hearing.
"The rights of the public and the press to attend criminal trials are guaranteed by the S.C. Constitution and the U.S. Constitution," the South Carolina Supreme Court said in its opinion.
Arguing for the Post & Courier, attorney Jay Bender wrote that closing Thursday's hearing is "inconsistent with established First Amendment precedent." Bender asked for Gergel to hear arguments on closing the Thursday hearing, and Gergel's setting the Wednesday hearing is in response to Bender's Aug. 19 letter to Gergel.
"Bender and Muller are the two pre-eminent open court, Freedom of Information lawyers in South Carolina," said Bill Rogers, executive director of the South Carolina Press Association. Each has more than 40 years' experience in fighting battles to keep courtrooms open and getting government documents released.
Dozens of documents have so far been filed under seal in the Roof case.
On Aug. 23, a day after government prosecutors filed a 15-page document revealing their expert witnesses and some of the evidence those witnesses would testify to, Gergel filed an order revealing his sensitivity to pretrial publicity.
In that Aug. 23 order, Gergel reminded lawyers for Roof and the government that they have a duty to protect Roof's right to a fair trial and "minimize the effects of prejudicial pretrial publicity."
