On petition for order to show cause.
The Prosecutor of Passaic County has petitioned the court to issue an order to show cause why Look Magazine , Christopher S. Wren and Margaret English, authors of an article entitled "Murder New Jersey Style" which appeared in the March 10, 1970 issue of the magazine, should not be held in contempt of court. Such an application should receive careful scrutiny in view of the drastic nature of the relief sought. Initially, a preliminary determination must be made as to whether probable cause exists to support the issuance of the order to show cause. Van Sweringen v. Van Sweringen , 34 N.J. Super. 394, 402 (App. Div. 1955), rev'd on other grounds 22 N.J. 440 (1956).
The prosecutor contends that the article, containing allegations directly bearing upon the guilt or innocence of defendants, was published during the course of a trial and before the return of the verdict. This, he asserts, tended to interfere with the orderly process of the trial and the due administration of justice. He also contends that the article has "infected and poisoned the atmosphere of every county in this state" with respect to the trial of other indictments against the defendants not yet tried.
From the exhibits presented and from the records of the court, of which we take judicial notice, the following facts appear. After the death of two persons in Passaic County in 1966, murder indictments were returned. In one case (Indictment 279-67) Paul Kavanaugh, Vincent Kearney, Jr., Harold Matzner and Dorothe Krueger were charged with the murder of one Judith Kavanaugh, the wife of defendant Kavanaugh. In the other case (Indictment 64-67) Vincent Kearney, Jr., Harold Matzner and John C. De Groot, a Clifton police sergeant, were charged with the murder of one Gabriel De Franco. The cases attracted a
great deal of attention in the local press, necessitating the drawing of trial juries from other counties. During the preliminary stages the trial judge issued orders directed to counsel and the parties which in essence forbade the dissemination of information concerning the cases to the public press and other news media. The conduct of one attorney with relation to matters appearing in the press resulted in the revocation of permission for him to appear pro hac vice. State v. Kavanaugh , 52 N.J. 7 (1968). The trial of State v. Kearney et al. (Indictment 64-67), relating to the De Franco homicide, was completed in February 1969, resulting in a verdict of acquittal. The trial of State v. Kearney et al. (Indictment 279-67) was begun in October 1969. It was concluded on February 22, 1970 by a verdict of acquittal.
The article itself is hardly objective. It may more accurately be described as a one-sided version of the investigation of the homicides and the trial of the cases, exhibiting a strong bias in favor of defendants' point of view. Its dominant theme is stated in the subtitle: "How gambling, incompetence and corruption led to the trials of five people for murders they didn't commit." It is replete with statements which might be regarded as libelous such as:
The Prosecutor's Office had no case. But to drop charges against Matzner and his co-defendants would have been to invite a massive false-arrest suit. It would also have brought about inquiries into the Passaic County Prosecutor's office, and Mafia involvement in De Franco's murder.
Before Dowd could testify for the defense months later, he was approached quietly and told he would get two bullets in his head if he talked too much.
Edward Lenney, now out on parole, speaks bitterly of the Prosecutor's Office: "they fed me information that I believed, and they had to know it wasn't true."
If the state's assault was launched in error, it was pressed maliciously. The Prosecutor's Office wanted public credit for the spectacular solution of two nagging, unsolved murders. It could not, by backing down, risk a false arrest suit and an inquiry into its own conduct. Faced with admitting ...