By now everyone has heard about the murder of multiple church members down in South Carolina. Dylann Roof, 21, opened fire in a bible study class at the Emanuel African Methodist Episcopal Church in downtown Charleston. Comment after comment after comment from court audience members condemned Roof before even a preliminary hearing had occurred to determine whether or not there was probable cause to bind Roof over for trial. In essence, what we saw today was a disgrace both to the South Carolina Judiciary; it was both offensive and repugnant to the South Carolina Constitution and the United States Constitution.
Whether or not Roof committed these horrific acts is a matter best left to the jury. Even this, though, is not why I am compelled to write what I am writing. The Court of Public Opinion is the bread and butter of any media outlet including Foreclosurepedia.
Today, Roof made his first appearance and had a One Million Dollar bond ordered. During the video arraignment the Court made one of the worst mistakes a Judge could which any first year law student would not have. Order and decorum of the courtroom are that which separate a civil society from mob rule. By the Court allowing those in the audience to make statements addressed directly to Roof; comments WHICH HAVE ALWAYS BEEN reserved for the Sentencing Phase and ONLY ALLOWED TO BE MADE by witnesses properly admitted, South Carolina has begun travelling down a very slippery slope.
The Arraignment is a formal reading of a criminal charging document in the presence of the defendant to inform that person of the charges against them. In response to arraignment, the accused is expected to enter a plea. Period. More on point, though, there is an absolute requirement for the Court to ensure impartiality with respect to the entire judicial proceeding.
Gideon v. Wainwright, 372 U.S. 335 (1963), is a landmark case in United States Supreme Court history. In it, the Supreme Court unanimously ruled that states are required under the Fourteenth Amendment to the U.S. Constitution to provide counsel in criminal cases to represent defendants who are unable to afford to pay their own attorneys. The case extended the identical requirement that had been imposed on the federal government under the Fifth and Sixth Amendments.
The United States Constitution provides that any person accused of a crime is guaranteed a fair trial in which fact finding takes priority over prejudice, unfounded assumptions, and even efficiency. That right derives from protections afforded to individuals in the Fifth, Sixth, and Fourteenth Amendments. The right to be present at trial is sancroset and rarely, if ever, denied. The most effective means of guaranteeing this right is by allowing the defendant to be present at their trial so that they may meaningfully participate in their own defense; observe the fairness of the process or lack thereof; and petition for redress should their rights be violated.
The right to a fair trial, the most fundamental of all freedoms in the American legal system, depends on many other rights. In particular, the right to be present at trial and the presumption of innocence help a defendant protect her right to a fair trial. Sixth Amendment fairness requires that the jury remain impartial whenever possible, presuming the defendant innocent until the government proves, beyond a reasonable doubt, that this is not the case. External factors, including extensive pretrial publicity threaten the ability of jurors to be fair and impartial toward the defendant.
The problem that we encounter in the aforementioned matter is that Roof was first placed in an environment wherein he was not able to confront the accusations against him in a meaningful manner. I will properly couch that statement in a moment. Roof, as many pretrial detainees, appeared via a closed circuit video system. It was during this process that Judge James Gosnell allowed court audience members to make their feelings known — whether these were family members of the decedents we may only presume as it was a spontaneous eruption of statements. Adding fuel to the fire, Reverend Anthony Thompson instructed the defendant to repent which would require a conversion to Christianity. And what if the defendant does not want to repent or repent to a Christian god? What are the penalties for this? This last statement, alone, gives the appearance that the State of South Carolina is promulgating a religious agenda as there has not even been a trial. Gosnell, in his official capacity and under color of state law, not only allowed for the comments to be made, but actually encouraged them!
In an extraordinary display of grief and forgiveness, relatives of people killed in a shooting at a storied black church here addressed the suspect in court on Friday, one after another offering an emotional mix of blessings and pleas for peace.
Both the creation of an atmosphere which painted the defendant in a prejudicial light and the inability of South Carolina to reel in judicial agendas in the Bible Belt, raise grave questions as to whether or not a Change of Venue ought immediately be filed and perhaps even an escalation to the federal level. Judge Gosnell should loose his seat on the Bench for this travesty. Here is the problem: When we begin to allow for Mob Mentality to rule, the bell we ring may never be unrung.
Witherspoon v. Illinois, 391 U.S. 510 (1968), was a U.S. Supreme Court case where the court ruled that a state statute providing the state unlimited challenge for cause of jurors who might have any objection to the death penalty gave too much bias in favor of the prosecution.
Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution.
Our problem is that this was an Arraignment and that the genie is out of the proverbial bottle. The Court of Public Opinion is working in overdrive and we are in uncharted waters.
As Judge Gosnell has skipped past many of the procedural requirements to condemn a man to death LIKE A TRIAL AND SUCH by allowing grieving family members of the victims to assail the defendant, I believe that Witherspoon is most appropriate to address. Many will argue that it was psychologically beneficial for the family members to publicly voice grief by confronting the defendant. This type of mentality is spurious, at best and more certainly an invitation to those within South Carolina, if not Nationwide, to reignite Ferguson and Baltimore as potential mob mentality applications should the venire of the jury not be to the liking of the Community. Additionally, this mentality is that it first presumes Roof’s guilt. If a clear message is not sent publicly that both order and decorum; that a defendant’s rights are inviolate, we are inviting lynch mobs into our midst.
My argument is not one of morals. Those of you whom are not capable of elucidating the law; those whom feel that might is right and that moral outrage justifies the outcome, are welcoming back a dark time in our history where the suspension of Habeas Corpus is merely one demonstration away.
The reality is that we have a millennia upon which the corpus of our jurisprudence is built upon. Even before the Magna Carta, which just celebrated its 800th birthday on 15 June 2015, tomes had been written and expounded upon which protect the three, noble rights within the Declaration of Independence: Life, Liberty and the Pursuit of Happiness.
Unfortunately, we are seeing a Nationwide trend of the Judiciary failing to take demonstrative actions to curb this type of behavior. On many occasions, in fact, this trend has been the successful foundation for appeal based upon the inability of the defendant to receive a fair and impartial trial by a jury of their peers.
Gosnell’s actions, though, rise to a level which is rather unprecedented. Instead, Gosnell invited the family members of the victims to speak! Gosnell stated, “It’s important to hear from the victims and let them speak out.” So repugnant to both the Constitution and profane to the application of judicial procedure were Gosnell’s actions, I am worried that there may be no precedence to address it. I suppose that Marbury v. Madison, 5 U.S. 137 (1803), might somewhat; however, I do not know precisely. If Gosnell fancies himself as a therapist, there are avenues which he may pursue to follow that calling. The Judiciary, though, is neither a venue for legislation from the bench nor may there be toleration for deviation from Judicial Order and Decorum.
The Federal and State Criminal Rules of Procedure are implemented as a Hedge of Protection — to quote a famous Jewish phrase — around those whom are at risk of loosing life, liberty and the pursuit of happiness. Our Founding Fathers knew, all too well, what happened when you allowed complete power and control of judge and jury to rest in the hands of the few. In fact, our Founding Fathers enshrined this tripartite motto; these seven words, in our Declaration of Independence.
Whether we like it our not, when we allow mob mentality to prevail; when we as a society are so swayed by the cacophony of the many, we are ultimately doomed to worship at the feet of sycophants. — D Paul Williams, 2015.
Mark my words on this: If we continue down this slippery slope of exceptions to the Rule of Law made — no matter how noble the reason may be — it is only a matter of time before we return to a time when the Emperor Whom Wears No Clothes will apply the alleged moral outrage as the basis of committing unspeakable horrors upon those whom cannot defend themselves.
Democracy only works when the Covenants of Society are obeyed. One of those Covenants is the submission of all US Citizens to the laws, rules and regulations which comprise the framework of the judiciary. In the instant case, Judge Gosnell swore an Oath to abide by the Law. As we have seen, Gosnell felt that the furtherance of a mob agenda trumped the rights of the defendant.
There are many out there whom will rally around a misguided belief that I have written what I have cold hearted, callous and overall an asshole. They will believe that it is unconscionable to penalize those whom would speak out for the victims; to give the victims a voice which they do not have. Perhaps these are true statements. Perhaps it is why many within the Mortgage Field Services Industry seek out my Counsel. As in all matters I have expounded upon before and all of those forthwith, the reality is that I am correct in this case, as well. If our federal and state judiciaries do not begin to send a very clear message that both Order and Decorum will be maintained within our judicial system, the noble state and federal constitutions upon which creates they to begin with ring hollow.