State v. Allen

• Decision Date: 22 April 1977
• Citation: 373 A.2d 377,73 N.J. 132
• Parties: , 2 Media L. Rep. 1737 STATE of New Jersey, Plaintiff-Respondent, v. Isaac ALLEN, Defendant-Respondent, Gannett Company, Inc. and The Home News Publishing Company, Inc., Appellants. STATE of New Jersey, Plaintiff-Respondent, v. John HUGHES and Richard Thompson, Defendants-Respondents, Trenton Times Corporation, Appellants.
• Court: New Jersey Supreme Court

Page 132

73 N.J. 132

373 A.2d 377, 2 Media L. Rep. 1737

STATE of New Jersey, Plaintiff-Respondent, v. Isaac ALLEN, Defendant-Respondent,

Gannett Company, Inc. and The Home News Publishing Company,

Inc., Appellants.

STATE of New Jersey, Plaintiff-Respondent, v. John HUGHES and Richard Thompson, Defendants-Respondents, Trenton Times Corporation, Appellants.

Supreme Court of New Jersey.

Argued Oct. 12, 1976.

Decided April 22, 1977.

Thomas C. Jamieson, Jr., Trenton, for appellant Trenton Times Corp. (Jamieson, McCardell, Moore, Peskin & Spicer, Trenton, attorneys; Williams, Connelly & Califano, Washington, D.C., of the District of Columbia bar, of counsel; Thomas C. Jamieson, Jr., Trenton, Michael F. Spicer and Frances Goldmark Massie, Princeton, on the brief).

John H. Yauch, Jr., Springfield, for appellant The Home News Pub. Co., Inc. and Floyd Abrams, New York City, of the New York bar, for appellant Gannett Co., Inc. (Yauch, Peterpaul & Clark, Springfield, attorneys; John H. Yauch, Jr., Floyd Abrams, Eugene R. Scheiman, Dean Ringel and Kenneth M. Vittor, New York City, on the brief).

Daniel Louis Grossman, Deputy Atty. Gen., for respondent State of N.J. (William F. Hyland, Atty. Gen., attorney; David S. Baime, John De Cicco and Daniel L. Grossman, Princeton, of counsel and on the brief).

Kathryn A. Brock, Asst. Deputy Public Defender, East Orange, for defendants-respondents (Stanley C. Van Ness, Public Defender, Trenton, attorney; Kathryn A. Brock and William L. Roughton, Jr., East Orange, of counsel and on the brief).

Thomas J. Cafferty, New Brunswick, for amicus curiae N.J. Press Ass'n (Seiffert, Frisch, Gruber & Cafferty, New Brunswick, attorneys).

Annamay T. Shepard, West Orange, and Frank Askin, Newark, submitted a brief on behalf of amicus curiae American Civil Liberties Union of N.J., Inc. (Jonathan M. Hyman, Montclair, of counsel).

The opinion of the court was delivered by

SULLIVAN, J.

The two appeals herein, State v. Allen and State v. Hughes and Thompson, although they involve separate and unrelated murder trials, present a common legal issue of fundamental and far-reaching importance to the news media and to the administration of justice.

In State v. Allen the trial court, following the selection of an unsequestered jury¹ and acting at the request of both the prosecutor and defense counsel, ordered:

that publication of inculpatory testimony taken outside the presence of the jury at evidentiary hearings held to determine the admissibility of said testimony which after hearing the court determines it is inadmissible at trial, if any, is prohibited until the jury is sequestered to deliberate its verdict.

The subject matter of the order was an alleged confession by Allen which the State proposed to offer at trial and to which defendant intended to object as inadmissible.

Where the admissibility of State's evidence such as a defendant's confession is challenged at trial, New Jersey follows the usual practice of conducting a hearing, the jury having been removed from the courtroom, at which the issue of admissibility is determined by the trial court. If the proffered evidence is ruled to be admissible, the jury is recalled and the evidence presented to it. If ruled inadmissible, however, the State is barred from using such evidence as part of its case.

The order in question sought to guard against the possibility that although the trial court might rule that the confession was inadmissible the members of the nonsequestered jury, to defendant's prejudice, might nonetheless read or learn about it through news media reports of what transpired at the evidentiary hearing.

Allen was one of three persons charged with armed robbery and felony murder alleged to have been committed in Somerset County. The incident had resulted an massive pretrial publicity. Separate trials were ordered for each defendant. Allen apparently was the second defendant tried. His trial began in December, 1975, lasted six weeks, and ended in a mistrial when the jury was unable to reach a unanimous verdict. His retrial commenced in February 1976. Prior to entry of the protective order the trial court stated that it was aware of the possible alternatives of sequestration and 'carefully worded precautionary instructions' to the jury. It rejected sequestration of the jury for the entire four to six weeks of trial as an unduly harsh and unwarranted burden on jurors which would greatly increase the difficulties in jury selection. It doubted the effectiveness of instructions should the jury learn of inadmissible evidence through press reports. Accordingly, these alternatives were rejected and the order heretofore referred to was entered.

The trial court then proceeded to hold a hearing on defendant's alleged confession, ruled that it was admissible and allowed it to be presented to the jury, the result being that, as a practical matter, the order was inoperative as to anything that took place at trial. Ultimately, Allen was found guilty by jury verdict.

In the meantime, however, two newspapers, whose reporters were attending the trial, sought review of the trial court's order but their application for leave to appeal was denied by the Appellate Division. The same motion was then presented to this Court and was granted, 70 N.J. 153, 358 A.2d 199 (1976), our order being entered some two days after the jury verdict.

State v. Hughes and Thompson has a similar factual pattern. Hughes, Thompson and the latter's brother were charged with murder and robbery in Mercer County. The brother was tried separately in 1972 and convicted of first degree murder. Hughes and Thompson were also convicted in 1973 following a lengthy jury trial. However, their convictions were reversed by the Appellate Division because of prejudicial remarks by the prosecutor during summation.

Defendants' retrial began on March 1, 1976 with an unsequestered jury. During the course of the trial, and on March 5, 1976, a restraining order was entered prohibiting a newspaper reporter present at the trial from reporting anything which took place in the courtroom out of the jury's presence. The order was to remain in effect until after the jury had returned a verdict.

Entry of the order grew out of the following circumstances. The State had called as a witness a person who had previously given a written statement which placed Hughes and Thompson at the scene of the crime. A doubt arose as to the testimonial capacity of the witness. It was also indicated that the witness might not testify in accordance with the written statement previously given. Because of the foregoing, the prosecutor requested that the witness be examined out of the presence of the jury. The request was granted and at the same time the trial court, Sua sponte, orally charged a newspaper reporter, who was present in the courtroom, not to report anything that transpired out of the presence of the jury until after the jury verdict.

Following a midday recess the witness was recalled to the stand, the jury having been excused. Prior to taking any testimony the trial court, Sua sponte, entered a second restrictive order addressed this time to two other newspaper reporters who were in the courtroom. This second order, also orally entered, directed these reporters not to report on what transpired in the courtroom out of the presence of the jury until after the jury verdict. The witness then testified and, Inter alia, recanted her written statement. At the close of the hearing the trial court found that she was 'high' when she appeared in court, being under the influence of methadone, and that she was incompetent to testify.

On March 5, counsel for the Trenton Times Corporation, two of whose reporters were subject to the restrictive orders, made an in-chambers application to the trial court to have such orders vacated on First Amendment grounds. The application was denied, as was an application to a single judge of the Appellate Division for an emergency stay of the trial court's orders pending disposition of a motion for leave to appeal.

On March 8, 1976 the case was given to the jury. That same day this Court, by order of the Chief Justice, dated March 9 but effective as of March 8, issued a stay of such orders and thereafter, on its own motion, certified and granted Trenton Times' motion for leave to appeal then pending in the Appellate Division. 70 N.J. 153, 358 A.2d 199 (1976). On March 9, 1976, the trial court declared a mistrial and discharged the jury which had been unable to agree on a verdict.

Preliminarily, we reject any notion that the appeals before us should be treated as moot and dismissed. The issues are of great public importance and are bound to recur time and again unless and until this Court by its decision determines what a trial court may or may not do regarding news media coverage of a public trial. Nebraska Press Asso. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683, 690 (1976). It would be paradoxical to say that the issues had to be viable in the particular case at the time this Court heard or decided them when, by the nature of the judicial proceedings, the trial in question would invariably be concluded before this Court had an opportunity to hear the matter. We therefore determine that the issues are not moot and proceed to the merits.

The narrow issue before us is more easily decided than certain broader questions implicated. In each case the trial court entered orders which restrained the press for fixed periods of time from reporting matters which were to take place in open court. These orders were clearly illegal. Proceedings which take place in open court are matters of public record and the news media has an absolute right to report thereon.

The landmark case of Nebraska Press Asso. v. Stuart, supra, involved the validity of a court order in a murder case which restrained the news media, until a trial jury was empaneled, from publishing or broadcasting...