The Dylann Roof Case, Open and Shut

My latest column for the South Carolina Press Association:

In November, as the prosecution of Dylann Roof for the Emanuel AME Church massacre edged closer to trial, federal judge Richard Gergel decided to grant a defense request that the public and the press be barred from a hearing into Roof’s competency to stand trial, and to represent himself in the case.


While there is a long tradition of American courts being open to the public and the press, there can be an inherent conflict between the First Amendment right to free speech and press – which the courts have held includes the right to attend court proceedings as a means of serving as a watchdog on government – and a criminal defendant’s Sixth Amendment rights to a fair trial by an impartial jury that is not swayed by outside influences other than the evidence presented in court.

Actually, the U.S. Supreme Court did not weigh the competing interests at stake until a series of cases in the late 1970s and 1980s. In those rulings the Court held while that “the right to attend criminal trials is implicit in the guarantees of the First Amendment,” pretrial and other proceedings in criminal cases could be closed if the court finds “an overriding interest based on findings that closure is essential to preserve higher values, and [the closure] is narrowly tailored to serve that interest.”
Thus a court considering whether to bar the public and press from a court proceeding in a criminal case must find “that closure is essential” to preserve the defendant’s Sixth Amendment rights, and must specifically articulate the overriding interest, “along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” The court must also ensure that the closure is “narrowly tailored to serve that interest.” In other words, the closure must be no broader than absolutely necessary to protect the interest at stake. And, finally, the court must determine that “reasonable alternatives to closure cannot adequately protect the right” at stake.
Judge Gergel carefully went through this analysis in his decision to close the competency hearing in the Roof case.

First, he weighed the defense argument that “the public disclosure of competency-related evidence could prejudice his right to a fair trial and impartial jury.” He observed that the competency hearing would inevitably involve evidence regarding Roof’s psychological state that may not be admissible at trial, and that an open proceeding could lead potential jurors to be exposed to this material.

Thus Judge Gergel concluded that “it [is] wholly impractical to conduct a proper competency hearing in this matter without running the substantial risk of disclosing information that would prejudice Defendant's right to a fair trial and an impartial jury.”

Judge Gergel then proceeded to the other parts of the test, finding that “there is a substantial probability that closure [of the competency hearing] would prevent this prejudice,” and that reasonable alternatives to closure – such as questioning jurors during jury selection to weed out those who may be aware of the competency information – “cannot adequately protect Defendant's fair trial rights in this matter.”

Judge Gergel pledged to issue a public order on the results of the competency hearing, and to issue a transcript of the competency hearing with sensitive information that could prejudice the jury redacted. But after the two-day hearing, Judge Gergel released only the result of the hearing – that Roof was competent to stand trial and to assist in his defense – but did not release a transcript or order, saying it would be improper to do so “at this time.”

Judge Gergel made his decision to close the competency hearing despite opposition from the prosecution, the press and victims’ families. While Judge Gergel wrote that he was “mindful of the strong interest of the press, the public and the victims' families in open and transparent court proceedings,” he added that “no one's interest is served by a violation Defendant's fair trial rights.”

Of course, the Emanuel AME shootings were traumatic. And Judge Gergel faces a difficult task in ensuring that Dylann Roof receives a fair trial, with procedure and a verdict that are not vulnerable on appeal. Yet he must be mindful of the intense public interest in the case, and that press and public access to the courtroom is the best way to ensure that the trial is fair to everyone with an interest in the case. And in a major case like this one, everyone has such an interest.