Victims’ attorney asks judge to restrict access to 911 calls

Circuit Judge J.C. Nicholson presides over the Charleston courtroom where Dylan Roof appeared Thursday for a hearing about restrictions on the public release of information in the killings of nine people at Emanuel AME Church. (FILE/GRACE BEAHM/STAFF)

Attorneys for several victims of the deadly attack on Emanuel AME Church asked a judge Wednesday to block the public release of 911 calls and other materials detailing the shooting last month.

Charleston lawyer Andy Savage, who represents five of the 12 victims or their families, called on 9th Circuit Judge J.C. Nicholson to continue restricting the release of some information related to the shooting that killed nine downtown churchgoers. It asks for a transcript of the 911 calls to be made public but seeks to seal the recording itself. Savage also asked Nicholson to withhold crime-scene photographs and witnesses’ contact information.

Other records should be made public, Savage wrote.

Savage represents the families of Tywanza Sanders, 26, and Susie Jackson, 87, who were slain June 17 at Emanuel African Methodist Episcopal Church, as well as survivors Polly Sheppard, Felicia Sanders and Felicia Sanders’ 11-year-old granddaughter.

Additional attorneys for the families of victims Cynthia Hurd, the Rev. Daniel Simmons, DePayne Middleton Doctor, Susie Jackson and state Sen. Clementa Pinckney also filed motions Wednesday requesting restrictions.

The court filings came as a deadline approached for law enforcement agencies, suspect Dylann Roof, news media and victims or their family members to file motions supporting or opposing the gag order, which has blocked access to public records and barred authorities from speaking about the case.

A motion filed by attorneys at Curry Law Firm for the family of Cynthia Hurd and representatives of the church and its AME district moved to suppress all 911 calls, coroner’s reports, investigative reports, witness statements, medical and mental health records for Roof, photographs or graphic depictions of the crime scene and other records, in addition to preventing potential trial participants from commenting on the matter.

Law enforcement reports and other documents that would ordinarily be considered public record are, in this case, exempt from the S.C. Freedom of Information Act, because their release could “constitute an unwarranted invasion of privacy,” the filings alleged.

The court has a “legal duty to preserve the integrity and fairness of this investigation,” the documents went on to say.

It would be difficult to locate jurors who have not been “susceptible to inflammatory publicity and that has not yet been tainted by the statements of the media,” according to the documents.

“Additionally, the African Methodist Episcopal Church has been traumatized. The Church building basement has been destroyed. The members of ‘Mother’ Emanuel A.M.E. Church have been emotionally, psychologically, and spiritually traumatized by these alleged murders,” the documents stated. “These wounds would be reopened by the dissemination and publication of the activities of these heinous crimes.”

On behalf of the Justice Department, Assistant U.S. Attorney Nathan Williams also filed a motion similar to that of the families, arguing that the release of 911 tapes and other documents would violate “victims’ rights, compromise victims’ dignity, and invade victims’ privacy.”

The “horrendous acts committed” combined with intense media coverage means release of any evidence could interfere with a fair trial, Williams argued. “Once these sensitive materials are disclosed, they will be broadcasted and rebroadcasted across the world, with each broadcast harming” victims and their loved ones.

The brief cited a case brought by the parent company of The Post and Courier against North Charleston a decade ago in which a court found that certain 911 calls should be released regarding the police shooting death of Edward Snowden. The Justice Department said the North Charleston case had different circumstances, however, and shouldn’t apply in the Emanuel AME shootings.

Portions of the motions are expected to meet resistance in the courtroom.

“We will argue that the 911 tape should be released as required by law,” said Bill Rogers, executive director of the S.C. Press Association, which has joined other media in fighting the gag order. “The law is clear: The tape itself, not a transcript, should be released.”

Nicholson’s order would have expired at 5 p.m. Wednesday if no one had made any motions, but the filings ensured at least one more hearing on the issue. The Post and Courier is among the half-dozen news organizations that have asked the judge to ease his restrictions, which have halted law agencies from complying with public-records requests under the S.C. Freedom of Information Act.

In addressing the reasons for his July 10 order, Nicholson has cited possible damage to state and federal investigations and potential violations of the S.C. Constitution’s Victim’s Bill of Rights, which guards victims’ dignity.

Pretrial publicity also could threaten Roof’s right to a fair trial, the judge has said. The 21-year-old Eastover man was indicted on nine counts of murder, three of attempted murder and a firearms charge in connection with the shooting at the historic black church. He faces 33 additional federal hate crime charges, including hate crime counts.

But the news organizations have argued in a court filing that a fair trial for Roof should be accomplished by questioning potential jurors and that the records are needed to provide public oversight on how authorities responded to the violence. Newspaper officials have said that they do not plan to ask for graphic photos, whose release was of particular concern to Nicholson.

The state’s Supreme Court has rejected past arguments that 911 calls could be withheld because their premature release could “harm” a law enforcement agency, an exemption under the public-records law. The high court’s justices ruled that North Charleston violated the FOIA by withholding 911 calls in the death of Snowden in October 2000.

After consulting with prosecutors, the city claimed that the release would harm it by causing publicity that would taint the jury pool, leading to a more expensive trial outside the Charleston area. The justices rejected the argument, ruling that North Charleston was “not entitled to a presumption that it would be harmed by disclosure of the 911 tape’s contents.”

The shooting at Emanuel AME Church already has garnered media coverage worldwide, and Nicholson said last week during the first court hearing about the gag order that one would “have to be under a rock” not to know about certain aspects of the case.

Tony Bartelme, Melissa Boughton, Schuyler Kropf, Cleve O’Quinn, Bo Petersen and Glenn Smith contributed to this report.