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Gag order is out of order

First Posted: 12:18 am - July 20th, 2015

The Post and Courier



Grace Beahm | The Post and Courier Dylann Roof appears Thursday, July 18, for a hearing in downtown Charleston about restrictions on the public release of information in the killings of nine people at Emanuel AME Church.
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If ever there was a case that illustrates why freedom of information is important, it’s that of the Emanuel Nine.

Throughout the country, observers have followed the story of the nine people murdered at Emanuel AME Church as they studied the Bible. They have read about each victim, his career, family and faith.

But on Friday, Ninth Circuit Judge J.C. Nicholson put a temporary gag order on any information related to the prosecution of their alleged killer, Dylann Roof. That includes recordings of 911 calls, reports of the medical examiner and coroner, investigative reports, statements of witnesses and the suspect’s medical and mental health records.

The Post and Courier, along with the S.C. Press Association and Channel 4, has appealed his order, saying it is inconsistent with the state’s Freedom of Information Act. Of course it is.

Jay Bender, press freedom lawyer for The Post and Courier and the press association, said Judge Nicholson does not have the authority to tell the city and county law enforcement agencies what information to release.

Judge Nicholson wrote that his order was “to preserve the Defendant’s ability to receive a fair trial.” He specifically mentioned information that might impede jury selection.

But the FOIA was written with an understanding of the checks and balances woven into the judicial system. Potential jurors must submit to questioning to weed out any who are so prejudiced and unable to serve fairly. That questioning can be as extensive as necessary.

Both Charleston County and city law enforcement agencies are complying with the judge’s order. A hearing on it is scheduled for Thursday at 10 a.m.

Meanwhile, Judge Nicholson should remember another time he tried to prevent public access to information. It was in a high-profile murder case in 2003 in Greenville County. The state Supreme Court ruled he should not have done so.

The circumstances of the Emanuel Nine trial are significantly different, but the principle is the same: The public has a right to such information unless there is “a substantial probability of prejudice from publicity that closure would prevent and [that] there’s no reasonable alternatives.”

The Supreme Court concluded in 2006 that Judge Nicholson’s order did not pass that test. Nor should the order with regard to the Roof case.

The awful shooting has opened people’s eyes and fostered racial unity. The case is a matter of compelling public interest. The more information, the better.

Besides, it’s the law.

Grace Beahm | The Post and Courier Dylann Roof appears Thursday, July 18, for a hearing in downtown Charleston about restrictions on the public release of information in the killings of nine people at Emanuel AME Church.
http://thecherawchronicle.com/wp-content/uploads/2015/07/web1_sccha109RoofHearing.jpgGrace Beahm | The Post and Courier Dylann Roof appears Thursday, July 18, for a hearing in downtown Charleston about restrictions on the public release of information in the killings of nine people at Emanuel AME Church.

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