Judge hears objections but doesn't change mind on closing Roof hearing

CHARLESTON — One by one, the victims stepped forward Thursday in a Charleston courtroom to address the judge.

More than a year ago, their family members had been shot to death during a Bible study at Mother Emanuel AME Church, and they came to tell U.S. District Judge Richard Gergel they objected to him closing a competency hearing for the man accused of killing their loved ones.

Some did not understand why the issue had come up after jury selection had begun. Some felt victims had a right to be present at every phase of the process. Others talked of the damage the delays in the trial have done.

After 45 minutes of hearing victims and news media objections, however, Gergel said his order closing the hearing would remain.

"This is an unusual case and we want to get it right," the judge said.

Prosecutors are seeking the death penalty for Dylann Roof, 22, who faces 33 federal charges in connection with the murders of nine African-Americans at the church in Charleston in June 2015.

Roof's trial began Nov. 7 with jury selection but was called to a halt.  Gergel subsequently disclosed that Roof was undergoing a competency evaluation and that a hearing to determine his competency to stand trial would be held Wednesday. Gergel this week moved the hearing to Nov. 21 and issued an order Wednesday closing the hearing, saying opening it could threaten Roof's right to a fair trial.

The Greenville News and USA Today Network objected to the closure, along with the Associated Press, the Charleston Post and Courier and The State newspapers, National Public Radio, WCSC-TV and federal prosecutors.

But the victims brought a reminder of the human toll of the murders and gave voice to community concerns that the process for trying Roof be transparent.

Gergel invited anyone wishing to object to his order to come to the front of the courtroom and speak their mind.

The Rev. Eric S.C. Manning, pastor of Emanuel, told Gergel that the trial's delays have caused anxieties among church victims who he said lie awake at night and wonder what is going on.

"The delays create the impression that perhaps there is something else afoot," he said.

Gergel, who offered his sympathies to each victim or family member who spoke to him, told Manning there was nothing else afoot.

"We are just trying to do it right," he said, using a phrase he repeated throughout the afternoon. "We don't want to do it over again.  We want to do this one time."

Competency hearings, Gergel wrote in his order, offer factors that complicate the fair trial process if left open. For instance, he said, the defendant can talk to the court-appointed examiner without any Miranda warning and may disclose matters that would not be allowed to be disclosed in a trial because of a Fifth Amendment right to remain silent and not testify against himself.

Also, he wrote, a defendant in a competency hearing can testify without waiving his right to remain silent at trial. And in some instances, Gergel wrote, a competency report may not be used against a defendant at trial, and doing so could lead to a verdict in a death-penalty case being overturned.

Gergel told the courtroom Thursday that he had received the examiner's report on Roof's competency at 7:30 p.m. Tuesday and had read it, convincing him the hearing scheduled for Monday should not be open.

Alana Jackson, granddaughter of Daniel Simmons Sr., one of the victims of the church shooting, told Gergel that it looked like there had been "stall tactic after stall tactic" used in the trial.  She asked him to consider the "signal this sends to the community" if the competency hearing is closed.

Tyrone Sanders, whose wife and granddaughter survived the shooting but lost his son, said closing the hearing to victims makes him feel "slighted."

"It seems like it would be unfair for us not to be there," he said.

Carl Muller, a Greenville lawyer representing The Greenville News and the USA Today Network as well as WCSC TV, told Gergel that in 39 years of law practice, he had never seen a competency hearing closed.

He pointed to a Ninth Circuit U.S. Court of Appeals case in 2012 in California, one of the rare cases in which he said there was an attempt to close a competency hearing. The judge in that case refused to close the proceedings.

The judge, the appeals ruling stated, noted that nothing in federal law provides that competency hearings should be closed to the public, and the panel agreed.

"Competency proceedings of a criminal defendant have historically been open to the public and press," the ruling noted.

Muller told Gergel, who said he was familiar with the opinion, that the ruling found that if closure is to be because of damaging publicity, "the publicity must create a pattern of deep and bitter prejudice throughout the community."  He said he did not think with all of the publicity thus far in the case, publicity from the competency hearing would produce a pattern of "deep and bitter prejudice."

Gergel said while Muller had not seen the examiner's report, he had and "it's not a normal examiner's report."

The judge said social media offers a challenge beyond that of traditional publicity. Just because he tells jurors in the case not to look at newspapers or television, Gergel said, news of the case could still pop up on their iPhone or tablet.  He said the trial is poised at the beginning of jury selection.

"I cannot imagine a more vulnerable moment," he said.

Muller argued that information from the competency hearing could actually help a defendant because it aids in understanding any reasons behind the crime.

But Gergel said he was not convinced and pointed to the unique nature of the case.

He said he plans to work on his order after the competency hearing through Thanksgiving and plans to release a redacted transcript of the hearing at some point.  He also plans to resume jury selection on Nov. 28.

"I'm trying to keep this train on the track," he said.