News media attorneys ask judge to lift gag order in Emanuel AME shooting

Circuit Court Judge J.C. Nicholson’s gag order preventing the release of public records in the mass killing June 17 at Charleston’s Emanuel AME Church has been challenged by news media, including The Post and Courier.

Attorneys representing news organizations asked a Charleston judge on Wednesday to lift his gag order on the release of information in the slayings of nine worshippers at Emanuel AME Church.

The lawyers, Jay Bender and Taylor Smith, both of Columbia, argued that privacy concerns and suspect Dylann Roof’s right to a fair trial do not warrant the order that barred authorities from releasing public records, including 911 calls, about the June 17 shooting. The reasons for the order also do not outweigh the public’s right to know how authorities responded to the mass killing, they said.

Bender and Smith represent news media organizations, including The Post and Courier, that have cited the S.C. Freedom of Information Act in asking police agencies for documents and other data.

“If the public is foreclosed from obtaining information about the performance of its public institutions,” the attorneys wrote, “they may lose confidence in those institutions.”

Roof, 21, was indicted on state and federal charges, including hate crimes, that accuse him of murdering nine people and trying to kill three others at the historically black church on Calhoun Street. Roof, who is white, could face the death penalty.

Ninth Circuit Court Judge J.C. Nicholson issued the gag order on July 10, citing his own concerns that the release of information could jeopardize a fair trial for Roof. Nicholson later added that he feared 911 calls and graphic crime scene photographs could compromise the privacy of the victims’ families that is guarded by the S.C. Victim’s Bill of Rights. The newspaper has not requested crime scene photos.

Attorneys for victims’ relatives, survivors and the federal government have asked Nicholson to extend his temporary order. Since July 22, when he gathered their input on his action, Nicholson has not indicated when he might rule on the issue.

In their filing Wednesday, the media attorneys said state and federal high courts have ruled that a defendant’s fair trial can be guaranteed by means other than restricting public access, including questioning potential jurors and thoroughly instructing them during the trial.

Nicholson’s order also created a “blanket” exemption to public-records and open-government laws without considering that lawmakers have found the documents to be public, the motion stated.

“While we have great sympathy to those families who have lost loved ones,” the filing stated, “under South Carolina law, these persons have no privacy rights that would outweigh the public interest in access to records which reveals the performance of government.”

The paperwork mentioned another case in which a court found that the public release of information about violence between jail inmates would not unreasonably impinge on privacy rights. If such a case were in the public interest, the attorneys wrote, then “a mass murder in a place of worship certainly is.”

Reach Andrew Knapp at 937-5414 or twitter.com/offlede.