Federal Judge Richard Gergel has ordered that a pretrial hearing to be held Thursday on potentially explosive evidence in the upcoming Dylann Roof death penalty trial 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 late Wednesday afternoon.
Gergel ruled after an earlier public hearing in which he indicated evidence to be discussed Thursday is so new and 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 at Thursday’s hearing concerns information that federal prosecutors want to introduce at trial, and that defense lawyers want to suppress, or exclude, according to court filings. However, those court filings have been sealed by Gergel and thus do not reveal specifics.
In his order, Gergel said he is especially concerned about contaminating the impartiality of some 3,000 potential jurors who have been summoned to be considered for Roof’s trial, which begins in November.
“This is an unusually sensitive period in this proceeding where highly prejudicial publicity could taint the jury pool and make selection of a fair and impartial jury increasingly challenging,” Gergel wrote.
Gergel wrote that since he may wind up excluding from trial some of the evidence to be aired at Thursday’s hearing, having an open hearing with its resultant publicity would cause potential jurors “to be repeatedly exposed” to inadmissible evidence that could taint their ability to be fair.
Portions of Gergel’s written order, in which he mentioned specifics of what is to be aired at Thursday’s hearing, were blacked out.
Roof, 22, of Columbia, faces the federal death penalty in the killings of nine parishioners at the Charleston AME “Mother” Emanuel church in downtown Charleston in June 2015.
Earlier Wednesday, attorneys representing two Charleston media outlets argued to Gergel that he should keep Thursday’s hearing open.
The appropriate way to screen out jurors whose views have been tainted is for the court to question individual jurors, attorneys Jay Bender and Carl Muller argued. Bender represents The Charleston Post and Courier newspaper; Muller, WBCD-TV.
“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,” Bender told reporters later.