Roof death penalty jury selection could start Nov. 28

A federal judge signaled Thursday he will be begin jury selection for the delayed Dylann Roof death penalty trial on Nov. 28, following the Thanksgiving holiday.

And, following a 45-minute hearing at the U.S. courthouse in downtown Charleston, Judge Richard Gergel also said he will hold Monday’s mental competency hearing for Roof behind closed doors.

Gergel announced his decision to close Monday’s hearing following emotional pleas to open it from more than a half-dozen African-American survivors and relatives of victims of the June 2015 massacre at Charleston’s historic Mother Emanuel AME church. Two media lawyers, Carl Muller and Brad Lanford, representing state and national news outlets including The State, The Greenville News, The Charleston Post & Courier, NPR and the AP, also argued unsuccessfully to open Monday’s hearing. Federal prosecutors, too, asked that the hearing be open.

A federal indictment in the case alleges Roof, 22, a self-described white supremacist from the Columbia area, drove to Charleston in June 2015 to kill African-Americans at Mother Emanuel to “incite racial tensions across the nation,” then killed in execution fashion nine people,including the church’s pastor, state Sen. Clementa Pinckney.

“It seems like it would be unfair for us not to be there (at Monday’s hearing), and (Roof) is able to be there,” said Tyrone Sanders. His son, Tywanza Sanders, a recent graduate of Columbia’s Allen University, and Tywanza’s aunt, Susie Jackson, 87, were among those slain in the Charleston church killings.

Mother Emanuel’s current pastor, the Rev. Eric Manning, told Gergel that continued delays in jury selection create anxiety among the survivors and their relatives and “continue to create the impression that perhaps there is something else afoot.”

Other relatives told Gergel they felt Roof’s attorneys were using a “stall tactic,” urged him to ensure a racially diverse final jury panel and wondered aloud how Roof’s mental fitness could be questioned because, as one relative said, he “was able to commit the crime and get away. ... He broke our hearts into so many million pieces.”

In his argument for holding an open hearing, Muller stressed that he and his legal staff were unable to find another example of a secret federal mental competency hearing.

“I have never heard of a competency hearing being closed,” said Muller, who has handled open court and open government issues for more than 30 years.

Gergel said he didn’t want to close the hearing, but said Roof’s rights to a fair trial were at stake, especially since a jury was about to be selected in a case already saturated with publicity.

“I can’t imagine a more vulnerable moment,” Gergel said. “We are literally on the cusp of jury selection and a trial. ... If there were no evaluation ... it’s almost certain the case would be reversed” on appeal.

Gergel, who characterized himself as a supporter of open courts, said in this case, he made the difficult decision to close Monday’s hearing because it involves the psychiatrist’s interviews with Roof and subsequent findings. In those interviews, Gergel said, Roof spoke without the normal 5th Amendment protections of having his own statements used against him.

Gergel said he will not make a final decision until after Monday’s hearing to begin jury selection on Nov. 28. But he said he and his staff have studied a psychiatric report on Roof’s mental fitness and signaled that, unless Roof’s defense team changes his mind during the closed Monday hearing, he plans to start jury selection right after the Thanksgiving holiday weekend.

Jury selection was originally supposed to begin Nov. 7, but Roof’s lawyers, led by anti-death penalty lawyer David Bruck, surprised the judge and prosecutors on that morning by bringing up the issue of mental competence.

At that point, Gergel told the court audience, he had no choice but to instantly order an independent psychiatric evaluation of Roof – even though it delayed jury selection – or risk having the results of the upcoming trial overturned on appeal.

“It’s not a normal examiner’s report. ... It deals with matters that would very likely be protected under the defendant’s 5th Amendment rights,” Gergel said. “I’m trying to navigate my way through this in a way that does justice.”

However, Gergel said, he would have a transcript made of the mental competency hearing and release that, with portions likely redacted, as soon as possible.

This story was originally published November 17, 2016 at 2:11 PM with the headline "Roof death penalty jury selection could start Nov. 28."