Gannett Co., Inc. v. De Pasquale

• Decision Date: 19 December 1977
• Citation: 401 N.Y.S.2d 756,43 N.Y.2d 370,372 N.E.2d 544
• Parties: , 372 N.E.2d 544, 3 Media L. Rep. 1529 In the Matter of GANNETT CO., INC., Respondent, v. Daniel A. De PASQUALE, as Judge of the Seneca County Court, et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 756

401 N.Y.S.2d 756

43 N.Y.2d 370, 372 N.E.2d 544, 3

Media L. Rep. 1529

In the Matter of GANNETT CO., INC., Respondent, v. Daniel A. De PASQUALE, as Judge of the Seneca County Court et al., Appellants.

Court of Appeals of New York.

Dec. 19, 1977.

Bernard Kobroff and Alan D. Marrus, New York City, for appellants.

Robert C. Bernius and John Stuart Smith, for respondent.

OPINION OF THE COURT

WACHTLER, Judge.

During the course of pretrial suppression hearings in a highly publicized murder case, the court directed that the evidentiary proceedings be closed to the public, including the press. The closure order was imposed as a means to ensure the defendants' right to a fair trial by forestalling the prejudicial effects of further notoriety. In this article 78 proceeding in the nature of prohibition, the petitioner, a disseminator of news through press and television, claims that the court's action violated First Amendment guarantees and the Sixth Amendment right to a public trial. In what is hardly a novel conflict, its claim presents an open issue within the "free press fair trial" controversy (see Matter of Oliver v. Postel, 30 N.Y.2d 171, 183, 331 N.Y.S.2d 407, 415, 282 N.E.2d 306, 311; Matter of United Press Assns. v. Valente, 308 N.Y. 71, 85, 123 N.E.2d 777, 783; cf. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 564, n. 8, 96 S.Ct. 2791, 49 L.Ed.2d 683).

This claim to unrestricted media access to criminal proceedings of public interest stems from an unusual matter locally known as "the Clapp murder case". Wayne Clapp was a former town policeman. He had lived his entire 42 years in the Rochester area and had developed deep ties in the surrounding rural communities. On July 19, 1976, he was reported missing.

According to reports in the news media, including the petitioner's two daily papers and Rochester television station, Clapp had last been seen leaving Roy's Marina accompanied by two unidentified youths. His boat had later been returned, laced with bullet holes. But his pickup truck and .357 magnum revolver, along with the two strangers, had vanished. Divers began searching Seneca Lake for Clapp's remains. The body of the deceased, however, was never recovered.

On July 22, the media announced that a nationwide police alert for Clapp's truck had proved successful. Michigan police had spotted the vehicle and, after a three-hour chase requiring helicopters and tracking dogs, they arrested a 16-year-old Texas youth, Kyle Greathouse, and his 21-year-old traveling companion, David Jones. The next day, front page articles revealed that Greathouse, apparently acquiescing to police requests, had led Michigan authorities to the location where he had buried the stolen revolver. The press later reported, without expanding, that the suspects had made admissions or confessions before waiving extradition proceedings and being returned to New York.

A Seneca County Grand Jury returned a lengthy indictment charging the two youths with second degree murder and robbery. On August 6, petitioner's morning daily reported that the accused "pleaded innocent yesterday * * * at their arraignment before Seneca County Court Judge Daniel De Pasquale. 'Not guilty, your honor,' the 16-year-old Greathouse answered * * * Jones gave the same response."

At the commencement of a pretrial suppression hearing, defense attorneys argued that an unabated buildup of adverse publicity had already jeopardized their clients' ability to receive a fair trial. To minimize the prejudicial effects of further disclosures, they asked that the pretrial proceedings be held in camera. The District Attorney had no objections. In an oral ruling, the court concluded that "these matters are in the nature of a Huntley hearing and suppression of physical evidence, and it is not the trial * * * Certain evidentiary matters may come up in the testimony of the People's witnesses that may be prejudicial to the defendants, and for those reasons the court is going to grant both (defendants') motions." The public, including the petitioner's staff reporter, were removed from the courtroom. The suppression hearing then commenced and continued in camera to its conclusion the next day.

Three days later, counsel for Gannett appeared and asked the County Court to reconsider and vacate its ruling nunc pro tunc. Since the proceedings had already been concluded, a copy of the hearing transcript was also requested. While finding this intervention untimely, the court accommodated the asserted public interest. It signed Gannett's show cause order directing both the defense and the People to justify withholding the transcripts. The issues were fully briefed, and on November 16, the merits were argued. But the advantages of hindsight and further debate only reinforced the court's initial determination that open suppression hearings, if exposed to notoriety, would have deprived Greathouse and Jones of any meaningful opportunity to receive a fair trial. The court's original finding of "a reasonable probability of prejudice to the defendants" not only justified closure in the first instance but, in the Trial Judge's view, applied with equal force to the request for transcripts as well.

The Appellate Division disagreed and, while trial in the criminal proceeding was still pending, granted the petitioner's renewed request for access to the sealed records. Its Per Curiam decision, while purporting to resolve what had already become an academic dispute, ¹ has nonetheless provided a conduit through which critical aspects of the "free press fair trial" controversy have been presented for review.

We would ordinarily decline the invitation and dismiss the appeal, taken by the respondents in the article 78 proceeding, for mootness. But this is far from an ordinary appeal. It crystallizes a recurring and delicate issue of concrete significance both to the courts and the news media. And in its broadest implications, it presents a challenge to a fundamental precept of judicial administration the courts' inherent power to control their own process. For these reasons, combined with the fact that matters of this character typically evade review, we have retained jurisdiction to entertain the appeal (see Matter of Oliver v. Postel, 30 N.Y.2d 171, 178, 331 N.Y.S.2d 407, 411, 282 N.E.2d 306, 308, supra; Matter of United Press Assns. v. Valente, 308 N.Y. 71, 76, 123 N.E.2d 777, supra ; cf. East Meadow Community Concerts Assn. v. Board of Educ., 18 N.Y.2d 129, 135, 272 N.Y.S.2d 341, 346, 219 N.E.2d 172, 175; Matter of Rosenbluth v. Finkelstein, 300 N.Y. 402, 404, 91 N.E.2d 581; see, generally, Cohen and Karger, Powers of the New York Court of Appeals, pp. 420-421).

Criminal trials are presumptively open to the public, including the press. Public access is secured through a fundamental concept said to be rooted in distrust for secret tribunals the inquisition, star chamber and lettre de cachet (Matter of Oliver, 333 U.S. 257, 268-270, 68 S.Ct. 499, 92 L.Ed. 682). It is typically the defendant, however, who reminds us on appeal from cases of compelled closure that the right to a public trial is a constitutional guarantee which "the accused shall enjoy" (U.S.Const., 6th Amdt., Civil Rights Law, § 12; former Code Crim.Pro., § 8; see, e. g., People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265, cert. den. 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273). It is after all the defendant whose right to a "fair trial in a fair tribunal" (Matter of Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942; People v. McLaughlin, 150 N.Y. 365, 375, 44 N.E. 1017, 1019) and whose very liberty is in jeopardy. And because it is the defendant who suffers directly when wrongfully deprived of public vigilance against possibly unjust prosecution or potential abuse (or nonuse) of judicial discretion, the right to insist on a public trial is primarily that of the accused (Matter of Oliver, supra, 333 U.S. at pp. 268-271, 68 S.Ct. 499; United States v. Sorrentino, 175 F.2d 721, 722-723; compare People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769, with Matter of United Press Assns. v. Valente, 308 N.Y. 71, 80-81, 123 N.E.2d 777, 780, supra ).

In practice, this priority need not detract from the public's general interest in the assurance of fair as well as effective enforcement of its laws. Though somewhat attenuated in comparison with a defendant's self-interest, each of us shares a stake in an adversary system which consistently dispenses our penal laws impartially (U.S.Const., 5th, 6th, 14th Amdts.; N.Y.Const., art. I, §§ 2, 6), free from needless prejudicial publicity (see, e. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600). Ordinarily, public trials "serve to instill a sense of public trust in our judicial process" (People v. Hinton, supra, 31 N.Y.2d at p. 73, 334 N.Y.S.2d at p. 887, 286 N.E.2d at p. 266). But this assumes that public access in a given case poses "no threat or menace to the integrity of the trial" (Craig v. Harney, 331 U.S. 367, 377, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546). Because this assumption sometimes fails, neither the public nor the press has an absolute right to attend all stages of all criminal trials (e. g., Estes v. Texas, 381 U.S. 532, 538, 85 S.Ct. 1628, 14 L.Ed.2d 543; Matter of United Press Assns. v. Valente, supra, at p. 81, 123 N.E.2d at p. 780). Particularly where a fair trial may hang suspended in the balances, the Constitution should not be considered as a substitute for a sunshine law (see Public Officers Law, §§ 85-89, as amd. by L.1977, ch. 933; Freedom of Information Act, U.S.Code, tit. 5, § 552).

The public's right to demand access to criminal trials, let alone suppression hearings, was never intended to comprehend outside interference with orderly judicial process. The public trial concept has therefore "never been viewed as imposing a rigid, inflexible straitjacket on the courts. It has uniformly been held to be subject to the inherent...