Oliver v. Postel

• Decision Date: 22 March 1972
• Citation: 282 N.E.2d 306,331 N.Y.S.2d 407,30 N.Y.2d 171
• Parties: , 282 N.E.2d 306, 1 Media L. Rep. 2399 In the Matter of Richard OLIVER et al., Individually and on Behalf of Other Members of the Public and Press Similarly Situated, Appellants, v. George POSTEL, Individually and as a Justice of the Supreme Court of the State of New York, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 407

331 N.Y.S.2d 407

30 N.Y.2d 171, 282 N.E.2d 306, 1

Media L. Rep. 2399

In the Matter of Richard OLIVER et al., Individually and on

Behalf of Other Members of the Public and Press

Similarly Situated, Appellants, v. George POSTEL, Individually and as a Justice of the Supreme

Court of the State of New York, Respondent.

Court of Appeals of New York.

March 22, 1972.

Jacob D. Fuchsberg, Leo Pfeffer, New York City, Alexander M. Bickel, New Haven, Conn. (member of the Massachusetts Bar) and Murray L. Lewis, New York City, for appellants.

Louis J. Lefkowitz, Atty. Gen. (Robert S. Hammer, Samuel A. Hirshowitz and Jerald Probst, New York City, of counsel), for respondent.

Cahill, Gordon, Sonnett, Reindel & Ohl, New York City, for The New York Times Co., Inc. and others, and Cravath, Swaine & Moore, New York City, for Columbia Broadcasting System, Inc., amici curiae.

James W. Rodgers and Anson M. Keller, New York City, for New York News, Inc., amicus curiae.

Burt Neuborne and Paul G. Chevigny, New York City, for Newspaper Reporters Ass'n of New York, Inc. and New York Civil Liberties Union, amici curiae.

FULD, Chief Judge.

The questions posed in Matter of United Press Assns. v. Valente, 308 N.Y. 71, 123 N.E.2d 777, concerning the right of the news media to challenge an order closing the trial of a pending criminal case to the public and the press, are again before us on this appeal, though in a materially different setting and involving altogether different considerations. Here, unlike in United Press, the issues are presented in the context of a clash between the constitutional guarantee of freedom of the press (U.S.Const., 1st Amdt.; N.Y.Const., art. I, § 8) and the constitutional right of an accused to a trial by an impartial jury free from the outside influences of prejudicial publicity. (U.S.Const., 5th, 6th and 14th Amdts.; N.Y.Const., art. I, §§ 2, 6. See, also, Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 1600; Estes v. Texas, 381 U.S. 532, 543, 85 S.Ct. 1628, 14 L.Ed.2d 543.)

The present case stems from the prosecution of one Carmine Persico for the crimes of conspiracy and extortion. The trial began in the Supreme Court, New York County, before Justice Postel and a jury on November 8, 1971, and, three days later, before any evidence had been presented, The New York Times and The Daily News published articles reciting that Persico had a criminal record and was reputed to have underworld connections. Claiming that these articles produced a prejudicial atmosphere which would prevent his client from receiving a fair trial, Persico's counsel moved for a mistrial. Justice Postel (hereafter referred to as respondent), noting that he considered the articles unfair, polled the jury and, after ascertaining that no juror had read anything in the papers or seen anything on television concerning the case, denied the motion. He did, however, warn the news media, through remarks to the reporters present, that he would hold 'in contempt' any 'individual reporter' who 'report(ed) anything other than transpires in this courtroom' because it 'would not be fair reporting insofar as this defendant is concerned.'

On the following two days, Friday, November 12 and Saturday, November 13, articles and editorials appeared in the Times, the News and The New York Post, which contained accounts of the respondent's denial of the mistrial motion and referred to the previously published articles concerning Persico's criminal record and associations. The articles were also strongly critical of the respondent's threats of contempt. These items prompted the respondent on Monday, November 15, to address additional remarks from the bench to the reporters. He expressed displeasure with the articles and, at one point, took issue with the manner in which they portrayed him.

Immediately following these statements, Persico's lawyer again moved for a mistrial or, in the alternative, 'for the exclusion of the public and the press' for the balance of the trial. The assistant district attorney in charge of the prosecution opposed the application; he pointed out that there was no indication that the jurors had seen any of the articles and that, in any event, Persico's rights would be adequately protected, and prejudice avoided, by 'warning' the jury, 'polling' it and, 'if necessary * * * sequestering' it. The respondent, however, stating that the reporters 'have done indirectly what the Court has requested them not to do directly' and that their reporting constituted 'contumacious conduct', granted the motion and directed that the courtroom be closed to the press and public for the balance of the trial.

The petitioners--five newspapermen 'individually and on behalf of other members of the public and press similarly situated'--thereafter brought this article 78 proceeding for a judgment directing the respondent to reopen the courtroom. A divided Appellate Division, 37 A.D.2d 498, 327 N.Y.S.2d 444, dismissed the petition on the authority of our decision in the United Press case (308 N.Y. 71, 123 N.E.2d 777 Supra), and the petitioners filed a notice of appeal to our court. About a week later, Persico's trial ended with a verdict of acquittal in his favor.

Although the termination of that trial has rendered the appeal academic and moot, the questions presented, particularly since they are likely to recur, are of sufficient importance and interest to justify our entertaining it. (See, e.g., 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 United Press Assns. v. Valente, 308 N.Y. 71, 76, 123 N.E.2d 777, Supra; Matter of Rosenbluth v. Finkelstein, 300 N.Y. 402, 404, 91 N.E.2d 581; see, also, Cohen and Karger, Powers of the New York Court of Appeals, pp. 420--421.)

As they did in the court below, the petitioners--and Amici curiae, including newspaper publishers and editors as well as radio and television broadcasters--contend that the exclusionary order violated not only the First Amendment's guarantees of freedom of speech and of the press but also the public trial guarantee of the Sixth Amendment, now applicable to the States (see Duncan v. Louisiana, 391 U.S. 145, 148, 88 S.Ct. 1444, 20 L.Ed.2d 491), and section 4 of our Judiciary Law. Accordingly, they ask us to adopt a broader view of the reach of the First Amendment than that taken by the court in United Press, 308 N.Y. 71, 123 N.E.2d 777, Supra and to determine the question, left undecided in that case, as to the scope and content of the provisions relating to a public trial. ¹

In United Press, 308 N.Y. 71, 123 N.E.2d 777, Supra, members of the news media had instituted an article 78 proceeding to restrain the judge from carrying out an exclusionary order entered during the criminal trial of one Minot Jelke. (See People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769.) The petitioners based their claim upon the free speech-free press guarantees of the First Amendment of the Federal Constitution and upon section 4 of this State's Judiciary Law and two other New York provisions (Civil Rights Law, § 12; former Code Crim.Pro., § 8). The latter two statutes provided in language identical with the Sixth Amendment--which at that time (1954) had not yet been held applicable to the States--that, '(i)n all criminal prosecutions, the accused has a right to a speedy and public trial'. Section 4 of the Judiciary Law, more broadly worded, recited, as it still does, that, subject to certain stated exceptions, '(t)he sittings of every court within this state shall be public, and every citizen may freely attend the same.' Only six judges of our court participated in the appeal. We were unanimous in holding that the guarantees of the First Amendment were inapplicable since they did not operate 'to confer upon the press a constitutionally protected right of access to sources of information not available to others' (308 N.Y., at p. 77, 123 N.E.2d at p. 778). We were, however, equally divided on the question whether the foregoing statutory provisions, particularly section 4 of the Judiciary Law, gave members of the public at large, including the press, a right to attend court sessions and maintain a proceeding to enforce that right.

As we noted at the outset, the present case is quite different from United Press. Consequently, we find it unnecessary to reconsider the broad question there decided relating to the reach of the First Amendment or to determine the interpretation to be accorded the Sixth Amendment and section 4 of the Judiciary Law. In the earlier case, the order challenged was not aimed or directed at anything which the reporters had written or the newspapers had published. On the contrary, the courtroom was closed--over the objection of the defendant--solely in the interests of public decency and morality because of the obscene and sordid details of the testimony. In sharp contrast, the record in the present case makes it exceedingly plain that the order closing the courtroom--made upon the defendant's application--was aimed specifically at the news media and was intended as a punishment for what the respondent characterized as their 'contumacious conduct' in disregarding his prior admonitions not to publish 'anything other than (what) transpires in this courtroom.' Since the petitioners before us were the direct targets of the court's order, and their ability to comment upon the trial as professional journalists thereby impaired, there is no doubt that they have the requisite 'personal stake in the outcome of the controversy' to give them standing to challenge the validity of that order. (Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947; see Association of Data Processing Serv. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 25 L.Ed.2d 184; Barlow v. Collins, 397 U.S. 159, 172--173, 90 S.Ct. 832, 25 L.Ed.2d 192, per Brennan, J., concurring.)

It is evident that, if the...