Concerned about graphic photographs of the Emanuel AME Church shooting scene and 911 calls that might have captured gunfire, a Charleston judge on Thursday blocked access to public information for another week without immediately giving anybody a chance to challenge him.
Ninth Circuit Judge J.C. Nicholson extended his gag order during a hearing at the Charleston County Judicial Center downtown so he could give survivors of the attack and victims’ family members, who filled the front pair of the courtroom’s seats, an opportunity to ask for more permanent restrictions.
Thursday marked the first local court appearance that defendant Dylann Roof has made in person, and it unfolded just a mile away from the site of the June 17 shooting in which he is charged with nine counts of murder and three counts of attempted murder.
The 21-year-old Eastover man stared ahead and said nothing during the nearly 30-minute proceeding. He wore striped jail garb, and his arms were shackled together at his wrists, a chain extending to more restraints on his ankles. His family wasn’t there.
His lead attorney, Circuit Public Defender Ashley Pennington, said his client is lucid and communicates well, so he did not expect to raise any issue of Roof’s mental competency to stand trial.
Nicholson set a tentative trial date of July 11, 2016.
Nicholson filed his gag order last week, halting police officials from commenting on the case or honoring news media requests for public records, such as 911 calls.
It came on a day when local agencies were due to respond to the requests made under the S.C. Freedom of Information Act.
Though such orders often come at the urging of a defense attorney or prosecutor, he indicated that no one had asked for it. He set Thursday’s hearing to further address the issue.
Instead of listening to arguments, though, Nicholson said he would further enforce the temporary restrictions until 5 p.m. Wednesday. He called on law agencies, news media, Roof and — most importantly, he said — victims’ family members to file motions in the meantime if they think his order should stay in effect until the trial.
If someone makes a request, the judge will set another hearing. If the deadline passes without one, the restrictions will end.
Nicholson acknowledged that his order last week was “not very articulate.” He wrote then that pretrial publicity could jeopardize Roof’s right to a fair trial by tainting the jury pool.
The judge intended, rather, to give everyone with a stake in the release of information a chance to speak, he said. His “major concern,” he said, was for the victims’ well-being if photos of their bloodied loved ones were made public or if 911 calls depicting the shooting are released. He cited the Victim’s Bill of Rights in the S.C. Constitution.
“Victims have the right to be treated with fairness, respect and dignity,” he said.
Nicholson granted a motion from attorneys representing news media, including The Post and Courier, to intervene and fight for the release of the information they seek. He acknowledged the lawyers in the courtroom Thursday, but he did not entertain their stance. The S.C. Press Association, WCIV-TV, the Associated Press, ABC News and The State newspaper of Columbia have joined the effort.
“The Post and Courier has no interest in publishing graphic crime-scene photos from this horrific attack,” the newspaper’s executive editor, Mitch Pugh, said. “However, we believe the public has the right and responsibility to inspect the 911 calls to determine if the agencies involved responded appropriately and promptly. Traditionally, the media have played a key role in helping the public perform this vital oversight. We trust we will be allowed to continue to do so.”
Samuel Mokeba and Taylor Smith, attorneys for the newspaper and the other media outlets, would not discuss details of what they planned to argue in any future hearings on the gag order, but they appreciated Nicholson’s intentions to listen to others, they said.
“I wouldn’t say the press lost this week,” Smith added. “Their rights under the S.C. Constitution ... (and state law) with regard to the Freedom of Information Act still apply. However, to the extent a judge is going to construe this order ... to say that (the open-records law) does not apply, that would be a loss.”
An attorney for Felicia Sanders, who survived the attack but watched her son get gunned down, has expressed a desire for openness. Charleston lawyer Andy Savage said Roof’s right to a fair trial should be ensured through questioning of potential jurors instead of a gag order, an argument that news media attorneys also have used.
The media are “rightfully indignant about the attempt of the court to prevent them from doing their job,” Savage wrote on Facebook. “Their job is to inform the public of the courtroom process.”
Prosecutors also took the opportunity Thursday to serve Roof with indictments on 13 charges, including a firearms violation.
Pennington, the area’s top public defender, said he had already discussed the grand jury’s findings with his client and visited him several times at the Charleston County jail. Though Roof had dropped out of public high school, Pennington said he later got his General Educational Development, or GED, certificate online.
If Roof were unable to understand his charges, Pennington could ask for a competency evaluation that would examine his level of comprehension of court proceedings.
“We have the capacity to communicate and understand each other,” Pennington said. “I don’t see any issue at all that relates to competency.”
Still undetermined is whether legal questions will arise about Roof’s state of mind at the time of the attack on Emanuel AME Church. Roof, who is white, had apparently expressed beliefs of white supremacy in an online manifesto before police said he interrupted a Bible study by fatally shooting nine black worshippers. Other suspects in massacres, including James Holmes in the attack on Colorado theatergoers three years ago, have argued insanity as a defense at trial. James Holmes was found guilty on Thursday in connection with the deaths of 12 people and could face the death penalty.
Pennington said he would notify Nicholson if such a defense comes up in Roof’s case. That could delay the trial’s start.
The attorney said that having only a year to prepare for trial could pose “a substantial challenge” but that “we will do our best” to be ready.
Ninth Circuit Solicitor Scarlett Wilson also could file motions to seek the death penalty against Roof, a move that often drags out pretrial proceedings.
The area’s top prosecutor told Nicholson on Thursday that she has not yet made that decision.
Joined in the courtroom by Bill McGuire, lead death penalty attorney at the S.C. Commission on Indigent Defense, Pennington waived his client’s right to seek bail because of the serious circumstances.
Acknowledging the publicity that the case already has gotten, the judge said he wouldn’t grant bail anyway, considering the danger Roof poses to the community and the suspect’s propensity to flee from authorities.
“You’d have to be under a rock to not know that,” he said.
Reach Andrew Knapp at 937-5414 or twitter.com/offlede.