Westchester Rockland Newspapers, Inc. v. Leggett

Decision Date20 November 1979
Citation423 N.Y.S.2d 630,399 N.E.2d 518,48 N.Y.2d 430
Parties, 399 N.E.2d 518, 5 Media L. Rep. 2009 In the Matter of WESTCHESTER ROCKLAND NEWSPAPERS, INC., Appellant, v. Russell R. LEGGETT, as a Judge of the Westchester County Court, et al., Respondents.
CourtNew York Court of Appeals Court of Appeals
Henry J. Smith, William F. Macreery and Gerald Nolan, White Plains, for appellant
OPINION OF THE COURT

WACHTLER, Judge.

The petitioner, Westchester Rockland Newspapers, Inc., commenced this proceeding to vacate an order which excluded the public and the press from a pretrial mental competency hearing in a criminal case in which the accused was charged with rape. The order had been entered, at the request of the accused, by the respondent, Judge Russell R. Leggett, who presided at the hearing. The Appellate Division upheld the order and dismissed the petition. Westchester Rockland Newspapers, Inc., has now appealed to this court claiming that the order closing the hearing violates its right to hear and report matters of public interest and concern, as guaranteed by various statutory and constitutional provisions.

The case, once again, imposes upon the courts the obligation of reconciling the competing rights of the accused to a fair trial free of damaging pretrial publicity, with the right of the public to be informed, particularly by the press, of what takes place in the courts. It is a sequel to Matter of Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544, in which this court, and the United States Supreme Court (--- U.S. ----, 99 S.Ct. 2898, 61 L.Ed.2d 608), recently held that a court may, upon application by the accused, close a pretrial suppression hearing in order to assure a fair trial. Here, however, we are concerned with a pretrial competency hearing which, in purpose, scope and potential impact on the rights of the accused is different from a pretrial suppression hearing.

This case began in 1976. In the summer and fall of that year several small girls and young women were raped or sexually assaulted in Westchester County. The crimes were reported by the local media, including the petitioner's newspaper, the Reporter Dispatch. In November, 1976 the police arrested Alexander Verrone who was later indicted for the crimes. After Verrone had been arraigned and held without bail, his attorney served notice that he intended to raise insanity as a defense at trial.

Defense counsel also applied to have the court determine whether the defendant was mentally fit to stand trial (CPL art. 730). Preliminarily the court directed that the defendant be examined professionally. When the court received the report of the examining physicians, which apparently indicated that the defendant was not competent to stand trial, the court ordered that a hearing be held.

The hearing commenced on March 27, 1978. Several reporters, including one from the petitioner's newspaper, were present in the courtroom. But before any testimony was taken defense counsel made an oral application to have the public and the press excluded from the courtroom throughout the hearing. He noted that the case, including all court proceedings, had been regularly reported in the media and claimed that pretrial reporting of the defendant's mental condition might prejudice his trial. He urged that if he raised the insanity defense at trial, the doctor's reports and testimony admitted at the hearing "may become relevant during the trial." He also argued that if he later chose not to pursue the insanity issue at trial, the public, and thus potential jurors, may learn that the defendant has a mental problem although such proof might otherwise be inadmissible at trial. The District Attorney did not oppose the application. He stated, however, that he did not believe that the insanity issue would "come up" at the hearing.

The court, the District Attorney and defense counsel then withdrew from the courtroom and continued the argument on the motion out of the hearing of the public. Afterwards the court returned to the courtroom and announced that the defense motion would be granted for the reasons stated by counsel in open court, supported by details revealed In camera. The court, however, refused to disclose these details because that "would be self-defeating". As a second ground for closing the hearing the court relied on section 4 of the Judiciary Law and stated that this section authorized "the Court to close any case that involves sexual charges."

The newspaper reporters immediately protested this ruling. The following day petitioner's reporter returned with counsel to have the court vacate the closure order on the ground that it violated the constitutional (U.S.Const., 1st, 6th Amdts.; and N.Y.Const., art. I, § 8) and statutory rights (Judiciary Law, § 4) of the public and the press. Although the court entertained extended argument, both at the time of the original protest and when counsel appeared, he adhered to the original decision. The public, including the press, could not attend the hearing, nor were they permitted access to transcripts of the proceedings from which they had been excluded.

The petitioners then sought to have the order set aside by commencing this article 78 proceeding in the Appellate Division. While this proceeding was pending, however, the competency hearing was completed. The Appellate Division dismissed the petition on the ground that (1) the matter was now moot, and even if deemed not to be moot (2) the order closing the proceedings "constituted a proper exercise of discretion (see Matter of Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544)."

Although the competency hearing has been concluded, the court's order still precludes the petitioner from gaining access to the transcripts of those portions of the proceedings which were held behind closed doors. 1 Thus the petition is not moot to the extent that it seeks to gain access to those transcripts. In addition, in cases such as this, we have traditionally retained jurisdiction, despite a claim of mootness, because of the importance of the question involved, the possibility of recurrence, and the fact that orders of this nature quickly expire and thus typically evade review (see, e. g., Matter of Gannett Co. v. De Pasquale, supra at p. 376, 401 N.Y.S.2d at p. 759, 372 N.E.2d at p. 547). 2

In Gannett Co. v. De Pasquale (--- U.S. ----, 99 S.Ct. 2898, 61 L.Ed.2d 608, Supra ) the United States Supreme Court held that the Sixth Amendment guarantee of a public trial belonged to the defendant alone, and did not insure to the public and the press an independent right of access to pretrial proceedings. Under New York law, however, the public trial guarantee is not so narrowly viewed.

In this State we have recognized that open court proceedings serve several purposes. First, "contemporaneous review in the forum of public opinion" (Matter of Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682) serves to protect the accused from "secret inquisitional techniques" and unjust persecution by public officials and "goes far toward insuring him the fair trial to which he is entitled" (People v. Jelke, 308 N.Y. 56, 62, 123 N.E.2d 769, 771). Thus, like the Sixth Amendment, our statutes have provided that the accused is entitled to a public trial (Civil Rights Law, § 12; former Code Crim.Pro., § 8; People v. Jelke, supra; Matter of Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 376, 401 N.Y.S.2d 756, 759, 372 N.E.2d 544, 547, Supra ).

The public, of course, is not only concerned with seeing that the accused is fairly treated. The public also has an interest in seeing that there is justice for the accuser the police and prosecutors who must enforce the law, and the victims of crime who suffer when the law is not enforced with vigor and impartiality. And when justice has been done, public awareness "serve(s) to instill a sense of public trust in our judicial process" (People v. Hinton, 31 N.Y.2d 71, 73, 334 N.Y.S.2d 885, 887, 286 N.E.2d 265, 267) by assuring the innocent and impressing the guilty with the power of the rule of law. Justice must not only be done; it must be perceived as being done. Thus section 4 of the Judiciary Law provides: "The sittings of every court within this state shall be public, and every citizen may freely attend the same". This we have held is a right which may be asserted by the public and the press in civil (cf. Lee v. Brooklyn Union Pub. Co., 209 N.Y. 245, 248, 249, 103 N.E. 155, 156, 157) and criminal cases (Matter of Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544, Supra; People v. Jones, 47 N.Y.2d 409, 418 N.Y.S.2d 359, 391 N.E.2d 1335; but cf. Matter of United Press Assns. v. Valente, 308 N.Y. 71, 123 N.E.2d 777, where the question was not decided by a majority of the court; see, also, Matter of Oliver v. Postel, 30 N.Y.2d 171, 179, 331 N.Y.S.2d 407, 412, 282 N.E.2d 306, 309).

But that is only part of the problem. We must also recognize that publicity does not always insure the defendant a fair trial and, in fact, extensive publicity often has the opposite effect of endangering the defendant's right to a fair trial in the community (see, e. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600). Indeed "the trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. Sheppard v. Maxwell, supra" (Gannett Co. v. De Pasquale, --- U.S. ----, ----, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608, Supra). This is essentially a question of degree. Fairness to the accused does not mean that the community should be totally ignorant of his activities, or that he is entitled to a jury composed only of those who have no knowledge of the case or his character and prior involvements with the law (see, e. g., Murphy...

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