People v. Marino

• Decision Date: 15 March 1976
• Citation: 383 N.Y.S.2d 147,87 Misc.2d 427
• Parties: The PEOPLE of the State of New York v. Richard MARINO, Defendant.
• Court: New York County Court

Page 147

383 N.Y.S.2d 147

87 Misc.2d 427

The PEOPLE of the State of New York v. Richard MARINO, Defendant.

Monroe County Court.

March 15, 1976.

Lawrence T. Kurlander, Monroe County Dist. Atty., on behalf of the People of the State of New York, by Raymond E. Cornelius, First Asst. Dist. Atty., and Edward J. Spires, Asst. Dist. Atty.

Arthur F. Turco, Jr., Rochester, for defendant.

Nixon, Hargrave, Devans & Doyle, Rochester, for Gannett Co., Inc., The Democrat and Chronicle, The Times-Union, Channel 10--TV and Channel 8--TV, by John B. McCrory, Rochester, of counsel.

Goldstein, Goldman, Kessler & Underberg, Rochester, for Channel 13--TV, by Thomas G. Dignan, Rochester, of counsel.

Channel 21--TV, not represented.

DECISION

DONALD J. MARK, Judge.

This proceeding originated as a motion pursuant to Section 710.20(3) of the Criminal Procedure Law to suppress an alleged statement of the defendant. However, prior to the commencement of the pre-trial hearing on this issue, the defendant applied for an order restraining the media from publishing any information concerning such hearing. This application was denied based upon New York Times Co. v. Starkey, 51 A.D.2d 60, 380 N.Y.S.2d 239 (1976), which prohibited an ex parte order of this nature.

The defendant then complied with the mandate of New York Times Co. v. Starkey supra, and United States v. Dickinson, 465 F.2d 496 (5th Cir. 1972) and the guidelines recommenced by the Legal Advisory Committee on Fair Trial and Free Press, 62 A.B.A.J. 63 (1976), Standard 3.3 of which was adopted by the U.S. Supreme Court in Nebraska Press Association v. Stuart, No. 75--817, cert. granted December 12, 1975, 423 U.S. 1027, 96 S.Ct. 557, 46 L.Ed.2d 401, 44 U.S.L.W. 3354.

Pursuant to this Court's direction, the defendant served written notice of his application for a restraining order upon the two daily newspapers and the four television channels of this city. The media appeared on the return date and both sides argued their respective positions. This was probably the first time in the history of this state that this procedure was followed.

The defendant's application requested the Court ot (1) enjoin the media from publishing the alleged statement of the defendant which is the subject of the pre-trial hearing, (2) enjoin the media from publishing any derogatory term describing the defendant such as referring to his association with the 'Mafia,' 'Costra Nostra,' 'organized crime' or 'mob,' and (3) conduct the pretrial hearing in a court room closed to the media and the public (this last request being an oral amendment to the written application).

The specific constitutional issue of fair trial versus free press involved in this case has not yet been determined by either the Supreme Court of the United States or the Court of Appeals. The U.S. Supreme Court granted certiorari in an almost identical case, Nebraska Press Association v. Stuart, supra. The New York Court of Appeals did not pass on the question when it was presented to it. Matter of Oliver v. Postel, 30 N.Y.2d 171, 331 N.Y.S.2d 407, 282 N.E.2d 306 (1972).

The authority of the trial courts to issue restraining orders against the media emanated from dictum in the landmark decision of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). In that opinion, Justice Clark added two statements: 'We . . . do not consider what sanctions might be available against a recalcitrant press (which violated the judge's orders)' (p. 358, 86 S.Ct. p. 1520) and 'The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interference.' (p. 363, 86 S.Ct. p. 1522)

Since Sheppard, there have been 174 cases involving restrictive orders according to the Reporters Committee for Freedom of the Press which keeps track of such orders, Landau, 'Fair Trial and Free Press: A Due Process Proposal,' 62 A.B.A.J. 55 (1976), and 80 of the 94 United States District Courts have standing orders. Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975).

There is a plethora of decisions supporting the defendant's position. United States v. Gurney, 75--3030 pending (5th Cir. 1975); United States v. Schiavo, 504 F.2d 1 (3d Cir. 1974), cert. denied 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974); United States v. Columbia Broadcasting System, 497 F.2d 102 (5th Cir. 1974); United States v. Tijerina, 412 F.2d 661 (10th Cir. 1969), cert. denied 396 U.S. 990, 90 S.Ct. 478, 24 L.Ed.2d 452 (1969); Sun Company of San Bernardino v. Superior Court, 29 Cal.App.3d 815, 105 Cal.Rptr. 873 (1973); Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972) and Hamilton v. Municipal Court, 270 Cal.App.2d 797, 76 Cal.Rptr. 168 (1969), cert. denied 396 U.S. 985, 90 S.Ct. 479, 24 L.Ed.2d 449 (1969), among others.

In support of the media's argument, there is also no dearth of cases to which it can point. Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975); United States v. Schiavo, supra; United States v. Columbia Broadcasting System, supra; United States v. Dickinson, 465 F.2d 476 (5th Cir. 1972); Younger v. Smith, 30 Cal.App.3d 138, 106 Cal.Rptr. 225 (1973); State ex rel. Miami Herald Publishing Co. v. Rose, 271 So.2d 483 (Fla.App.1972); and State ex rel Superior Court v. Sperry, 79 Wash.2d 69, 483 P.2d 608, cert. denied 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971), among others.

(The reason the same case is sometimes cited in support of both sides of this controversy is because the trial court's decision upheld one view while the appellate court's decision reversed such holding).

There is strong language in opinions of the Supreme Court of the United States indicating that it would be unlikely to tolerate restraints on the media. The following two decisions are examples.

In Sheppard v. Maxwell, p. 350, 86 S.Ct. p. 1515, supra, that Court stated:

'A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. This Court has, therefore, been unwilling to place any direct limitations on the freedom traditionally exercised by the news media.'

This statement appears in the 'Pentagon Papers Case,' New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971):

'But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result. Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the First Amendment's ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such cases may arise only when the Nation 'is at war' . . . during which times '(n)o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops."

However, there are two cases almost identical to the instant case where two Supreme Court justices sitting as circuit court justices reacted differently.

The first is Times-Picayune Publishing Corporation v. Schulingkamp, 419 U.S. 1301, 95 S.Ct. 1, 42 L.Ed.2d 17 (1974), app. dis. as moot 420 U.S. 985, 95 S.Ct. 1417, 43 L.Ed.2d 667 (1975). This case involved an order of a state court restricting media coverage of pre-trial proceedings and trial in a highly publicized rape and murder case. Justice Powell, as Circuit Justice in Chambers, granted a stay of this prior restraint.

While Justice Powell did not speak for the entire Court, his following words on this subject bear careful scrutiny (pp. 1301, 1305, 1307, 95 S.Ct. 1, 3, 4):

'The record before me indicated a substantial possibility that the state court's order is inconsistent with this Court's decisions governing prior restraint of the news media . . .. I articulated the general standards governing the grant of a stay application . . .. There must be a significant possibili of reversal of the lower court's decision . . .. The court's order imposes significant prior restraints on media publication. As such, it would come to this Court 'bearing a heavy presumption against its constitutional validity.' (Citing cases) Decisions of this Court repeatedly have recognized that trials are public events. (Citing cases). . . .'

The second is Nebraska Press Association v. Stuart, 423 U.S. 1327, 96 S.Ct. 251, 46 L.Ed.2d 237 (1975), cert. granted, supra, again involving a sensational sexual assault and murder case. The state court prohibited publication by the media of the defendant's confession and Justice Blackmun, as Circuit Court Justice in Chambers, refused to stay the state court's order.

Justice Blackmun did not speak for the entire Court either, but his following words (423 U.S. 1319, 1324, 1327, 1332, 96 S.Ct. 237, 240, 251, 255, 46 L.Ed.2d 199) are as equally interesting as Justice Powell's:

'The order in question obviously imposes significant prior restraints on media reporting. It therefore comes to me bearing a heavy presumption against its constitutional validity . . .. At the same time I cannot, and do not, at least on an application for a stay and at this distance impose a prohibition upon the Nebraska courts from placing any restrictions at all upon what the media may report prior to trial. . . . I therefore conclude that certain facts that strongly implicate an accused may be restrained from publication by the media prior to his trial.'

It is therefore obvious that it is exceedingly difficult to predict which course of action the Supreme Court of the United States will take in this area of vital concern.

Resort to ...