Federal Judge Richard Gergel has ordered ordered that a pretrial hearing to be held Thursday on potentially explosive evidence in the Dylann Roof death penalty be closed to the public and press.
"This instance is one of those rare cases where Defendant's Sixth Amendment right to a fair trial outweighs the public's and the press' First Amendment right of access," wrote Gergel in a 10-page order released around 5:30 pm Wednesday.
Gergel ruled after an earlier public hearing in which he indicated evidence to be discussed Thursday is so controversial, it could taint prospective jurors' ability to be fair far more than any other information already made public in Roof's widely publicized and sensational church shooting case.
The evidence concerns information that federal prosecutors may possibly want to introduce at trial, and that defense lawyers want to exclude, according to court filings. However, the court filings do not reveal the nature of that evidence.
Roof, 22, of Columbia, faces the death penalty in a federal trial that begins in November in Charleston. He is charged with killing 9 parishioners at the Charleston AME "Mother" Emanuel church in downtown Charleston in June 2015.
A 33-count federal indictment charges Roof with 12 counts of committing a federal hate crime (nine counts of murder and three attempted murders) against black victims, 12 counts of obstructing the exercise of religion resulting in death and nine counts of the use of a firearm to commit murder.
Earlier Wednesday, 2 attorneys representing Charleston media outlets argued to Gergel that he should keep Thursday's hearing open. They said later they expected Gergel to rule against the public and press, but they had no regrets.
"These are important Constitution issues that need to be raised to keep the awareness of the public and the court that we have public courts in this county - and if you are going to close a court proceeding, it ought to be drastic and rare," said Jay Bender, who represented the Post and Courier. Carl Muller represented WCBD-TV.
Bender added that Gergel obviously "thinks there is something that if it were made public, it would prejudice beyond repair all potential jurors."
Keeping Thursday's hearing about potential evidence closed will protect the jury pool and help ensure a fair trial, Gergel told the media lawyers on Wednesday as they argued that Thursday's hearing should be open to the public and press.
The evidence "has not yet been publicly disclosed."-- Federal Judge Richard Gergel
Gergel repeatedly told Bender and Muller that if the evidence can be admitted to trial, he will make it public as soon as possible after Thursday's hearing. He will also release a transcript of Thursday's hearing at the appropriate time, he said.
Closing a court is extremely rare, Gergel acknowledged, but the evidence to be discussed at Thursday's hearing is uniquely sensitive and "has not yet been publicly disclosed," the judge said. "This is one of those matters that ... leaves us no choice."
Closing the courtroom could create "widespread suspicion that a blanket is being thrown over truth, and justice is being pushed aside by canny lawyers and the court."
In a written argument to Gergel, Muller argued that "closing the courtroom" also 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."
Gergel told Bender in court that as much as he values the public's right to attend trials and hearings, "I am equally committed to the rights of the parties and the defendant to a fair trial."
Already, Gergel said, he is allowing 3 weeks to question prospective jurors before Roof's Nov. 7 death penalty trial.
Questioning will focus on whether jurors can be fair-minded, he said.
Repeating that any evidence he reviews and decides can be admitted to trial will be made public, Gergel said, "The whole community has a right to know - it's a question of when."
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