What happened to due process?

The grieving families of nine victims of the Charleston Church shootings this week have my profound sympathies and sincere condolences for their horrible losses at the hands of the deluded homicidal maniac who did it. The perpetrator of this senseless crime must pay the full price proscribed by the law for his act.  

Yet as heinous and vicious as this hate crime was, the accused defendant is still entitled to due process of law. The Bill of Rights, e.g. Fifth Amendment to the United States Constitution guarantees him that basic fundamental right.

Now, I understand that the suspect in custody, Mr. Dylann Roof, has confessed to this crime. Even so, due process requires at a minimum that the law presume him innocent unless and until he is afforded a fair trial and convicted in a court of law. The law is supposed to presume him innocent during every phase of the prosecution until evidence adduced in court establishes court his  guilt beyond a reasonable doubt.

That’s why as a lawyer and officer of the court I watched in horror and disbelief today as the Judge presiding over the defendant’s initial bond hearing simply tossed due process of law right out the courthouse window. The accused was presumed guilty by the judge and everyone else in that courtroom right from the very start of the proceedings.

And it made me wonder what happened to due process in Charleston South Carolina?

Judge James Gosnell opened the hearing with a lengthy statement having nothing whatsoever to do with the proceedings. He rambled on about how Charleston is a strong community, “We have big hearts... we’re a very loving community... and we’re going to reach out to everyone; all victims... and we will touch them... we have victims; nine of ‘em, but we also have victims on the other side... there are victims on this (the defendant) young man’s side of the family... nobody would have thrown them into the whirlwind of events that they have been thrown into... We must find it in our heart at some point in time, not only to help victims, but to also help his family as well... It’s all done in sadness...”

After reciting the charges against Roof, the Judge advised that his first appearance court date (arraignment hearing) will be on Oct 23, 2015, and second appearance court date (preliminary hearing) on Feb 5, 2016. Then, before his consideration of the defendant’s appropriate bond the court asked whether any of the family members of the victims wanted to be heard.

Several of them were allowed to address their grief, together with accusations and presumptions of guilt directly to the handcuffed and heavily guarded defendant who appeared expressionless on video from another room at the jail:

“I forgive you,” declared Ethel Lance, 70, in tears. "You took something very precious from me and I will never talk to her ever again. I will never be able to hold her again. But I forgive you. And have mercy on your soul."

"We welcomed you Wednesday night in our bible study with open arms." said Felicia Sanders to the accused. "Every fiber in my body hurts... And I'll never be the same."

"Although my grandfather and the other victims died at the hands of hate, this is proof everyone's plea for your soul is proof that they lived and loved and their legacies will live and love. So hate won't win and I just want to thank the court for making sure that hate doesn't win," said Alana Simmons to Roof.

“I pray God on your soul and I also thank god that I will be around when your judgment day comes with him. May God bless you," Bethane Middleton Brown told the defendant.

"I forgive you," said Anthony Thompson to the accused. "But we would like you to take this opportunity to repent. Repent, confess, give your life to the one who matters most: Christ. So that he can change it, can change your ways no matter what happened to you and you'll be OK. Do that and you'll be better off than what you are right now."

Mind you, all of this occurred in the courtroom at his initial bond hearing, i.e., before this defendant was even arraigned on the charges, before he had any opportunity to enter a plea on the charges, before any preliminary hearing was held to establish probable cause to charge him with the crimes, and certainly long before his trial and conviction by evidence establishing his guilt beyond a reasonable doubt.  

In short, this man was simply presumed guilty by the judge and the public at his initial hearing. He was denied fundamental due process by all concerned while his court appointed attorney looked on without offering the slightest opposition or objection.

I’m told there is a statute in South Carolina which provides that the families of victims may be heard in this fashion at all proceedings involving the accused. If that is so, that statute is patently unconstitutional in my opinion and this defendant’s attorney had a solemn obligation to challenge it.  His failure to do so amounts to legal malpractice.

I don’t blame the victim’s families here. But the place and time for them to grieve, pray for, and offer forgiveness to the murderer of their loved ones is at their church, their homes, or in their hearts -- and perhaps, of course, at a sentencing hearing after the defendant has been duly convicted of the crimes by due process of the law.  It certainly is not in the courtroom during the initial bond hearing of the accused when the constitution mandates that the law – especially the judge -- presume him innocent.

We should all wonder: What has happened to due process?

Postscript: The Justice Department said today it is expediting a $29 million grant to go toward victim assistance in Charleston. How about that? The victims’ families are going to divvy up $29 million of our taxpayer money for this. Why them but not all the other victims of crime in the US? WTF!