State v. Joyce

• Decision Date: 28 June 1978
• Citation: 390 A.2d 151,160 N.J.Super. 419
• Parties: , 4 Media L. Rep. 1419 STATE of New Jersey, Plaintiff, v. James JOYCE, Wayne DeBellis, Morris Hacker and Miles Burke, Defendants. (Criminal)
• Court: New Jersey Superior Court

Page 419

160 N.J.Super. 419

390 A.2d 151, 4 Media L. Rep. 1419

STATE of New Jersey, Plaintiff, v. James JOYCE, Wayne DeBellis, Morris Hacker and Miles Burke Defendants.

Superior Court of New Jersey, Law Division (Criminal).

June 28, 1978.

G. Michael Brown, Asst. Atty. Gen., for the State (John J. Degnan, Atty. Gen., Ileana N. Saros and Robert DeGeorge, Deputy Attys. Gen., of counsel).

Francis J. Hartman, Mount Holly, for defendant James Joyce (Hartman, Schlesinger, Schlosser & Faxon, Mount Holly, attorneys).

Charles H. Nugent, Camden, for defendant Wayne DeBellis.

Sal B. Daidone, Voorhees, for defendant Morris Hacker.

R. Alan Aslaksen, Haddonfield, for defendant Miles Burke.

Frances Goldmark Massie, Princeton, for intervenor Trenton Times Corp. (Jamieson, McCardell, Moore, Peskin & Spicer, Princeton, attorneys).

Gerald A. Hughes, Trenton, for intervenor Capitol City Pub. Co., t/a The Trentonian (Levy, Levy, Albert & Marcus, Trenton, attorneys).

IMBRIANI, J. C. C.

Defendants filed a motion for a pretrial evidentiary hearing to determine the audibility of recordings of conversations and the accuracy of transcripts made from such recordings, pursuant to State v. Driver, 38 N.J. 255, 183 A.2d 655 (1962), and State v. Zicarelli, 122 N.J.Super. 225, 238-240, 300 A.2d 154 (App.Div.1973), certif. den. 63 N.J. 252, 306 A.2d 455 (1973), Cert. den. 414 U.S. 875, 94 S.Ct. 71, 38 L.Ed.2d 120 (1973). Defense counsel and the State of New Jersey moved to exclude the news media from the courtroom. The news media entered an appearance to oppose the request. Should the news media be excluded from the courtroom during the pretrial hearing?

Defendants were charged in a 33-count indictment with the offenses of embracery, perjury, obstruction of justice, misconduct in office and conspiracy. The selection of the jury was to commence immediately following the pretrial hearing, which was estimated to take about one week.

One or more of the four defendants is a well known political figure in the Camden-Burlington County area where the alleged offenses occurred. The indictment was returned by the statewide grand jury and the venue of the trial is in Mercer County.

Defendants allege that their right to a trial by an impartial jury could be adversely affected by the publication of information on the recordings, which include statements that are inadmissible in evidence, nonrelevant comments of the personal affairs of one or more of the defendants, unkind comments about one or more public figures who are not parties to this litigation, and statements which may be generally categorized as indecent. It is anticipated that the case will have considerable public interest and will be extensively covered by the news media.

The issue presented is the recurring conflict between the right of a defendant in a criminal case to a fair trial by an impartial jury, as granted by the Sixth Amendment to the United States Constitution, versus the right of the news media to unfettered access and dissemination of everything that occurs in a courtroom, as protected by the First Amendment. Both are freedoms which, Mr. Justice Black in an oft-quoted observation said, are "two of the most cherished policies of our civilization, and it would be a trying task to choose between them." Bridges v. California, 314 U.S. 252, 260, 62 S.Ct. 190, 192, 86 L.Ed. 192, 201, 159 A.L.R. 1346 (1941).

The legality of the exclusion of the news media during court proceedings was recently discussed in depth in State v. Allen, 73 N.J. 132, 373 A.2d 377 (1977), which involved orders that arose During the trials of two unrelated murder cases. During one trial the court entered an order barring the "publication of inculpatory testimony taken outside the presence of the jury at evidentiary hearings held to determine the admissibility of said testimony." Id. at 135, 373 A.2d at 378. During the second trial the court held a hearing out of the presence of the jury to ascertain the testimonial capacity of a witness, and ordered the news media "not to report anything that transpired out of the presence of the jury until after the jury verdict." Id. at 137, 373 A.2d at 379.

Both orders were held to be illegal.

Here, unlike Allen, we are dealing with a Pretrial evidentiary hearing. This is significant because when dealing with a pretrial motion a trial court has available many more options to protect a defendant's right to a fair trial. Allen directed that before issuing a restraining order or excluding the media from the courtroom, the "trial court should first resort to other alternatives unless it concludes that they are not feasible or proper under the circumstances." Id., at 145, 373 A.2d at 383. For instance, the "trial judge may order a change of venue, require a foreign jury or a continuance, or Voir dire prospective jurors." Id. at 161, 373 A.2d at 391.

This followed the holding in Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), where a prior restraint prohibiting the reporting of alleged confessions or other facts "strongly implicative" of the accused was struck down even though there was a risk that pretrial news accounts would have some adverse impact on the attitudes of those who might be called as jurors. The court emphasized that it could not "say on this record that alternatives to a prior restraint on petitioners would not have sufficiently mitigated the adverse effects of pretrial publicity so as to make prior restraint unnecessary". 427 U.S. at 569, 96 S.Ct. at 2807, 49 L.Ed.2d at 703. Again, the emphasis was on the failure of the trial court to seek alternative solutions before ordering a restraint or exclusion from the courtroom.

With that admonition in mind, and prior to ruling on the motion to exclude, this court called the news reporters into its chambers, informed them of the motion, explored possible alternative solutions and sought their opinions of what would be an acceptable alternative solution. The court noted that recently in another county the court, counsel and news media were able to agree upon a procedure whereby the news reporters would be excluded from the courtroom during a pretrial hearing. It was agreed that if the recordings were allowed into evidence during the actual trial, the news reporters would be given a copy of a transcript of the recordings. Since the transcripts were not available to members of the public who might be present in court, the news reporters in that case accepted this alternative solution. A similar arrangement was offered to the news media in this case.

The three newspapers involved herein are the Courier-Post, having a general circulation in the Camden-Burlington County area where the alleged offenses occurred, and the Trenton Times and Trentonian, both having primary circulation in Mercer County where the trial will be held. After reflection and review with their editors, all of the news reporters refused to accept any agreement which excluded them from the courtroom or restrained in any way the publication of court proceedings. They argued that any infringement would constitute an unconstitutional restraint on freedom of the press as secured by the First Amendment to the United States Constitution, and protected from invasion by state action by the Due Process Clause of the Fourteenth Amendment. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

The court then considered other alternatives. One was that the court hold the Driver hearing after a jury was impaneled. In this way, it was suggested, the court would have direct authority over the specific jurors who will hear the case and could order them not to read newspaper articles or listen to radio or television broadcasts concerning the case. But would this merely whet the jurors' curiosity? And how would we know whether or not the jurors complied? Note similar expressions of doubt in State v. Allen, supra, 73 N.J. at 142, 373 A.2d 377. Perhaps the court could again interrogate the jurors. But what would a court do if several jurors heard radio accounts or read newspaper accounts which they say could affect their verdict? A mistrial would have double jeopardy problems. The court rejected this alternative as unsatisfactory.

The court also considered holding the hearing In camera. While Allen said that if alternative solutions are not feasible, "upon a clear showing of a serious and imminent threat to the integrity of the trial, and with the express consent of the defendant, * * * consideration (should) be given to holding the evidentiary hearing In camera," State v. Allen, supra at 145, 373 A.2d at 383, the court did preface that statement by saying that "(a)ssuming that an In camera evidentiary hearing is not contrary to First Amendment principles or any other relevant constitutional concept, it should be used with circumspection." Id. at 145, 373 A.2d at 383 (emphasis supplied). Obviously there is nothing sacrosanct about an In camera hearing that would insulate it from the proscriptions of the First Amendment. Indeed, one of the major purposes of an In camera proceeding is to deny the news media access to information. Would it be arbitrary to hold that the news media may not be excluded from the courtroom, but if the court proceeding is given the magical designation of an In camera proceeding exclusion is permissible? Would it make a difference whether the In camera hearing was held in chambers, rather than the courtroom? These are yet unanswered questions.

Further doubt of the legality of an In camera proceeding when used to deny access by the news media to court proceedings appears...