On motion for leave to release grand jury testimony, etc.
The above entitled criminal cases have been tried to conclusion resulting in acquittals of all defendants. As has been noted in another opinion filed simultaneously with this, considerable notoriety has attended the proceedings. In the Matter of Look Magazine (Law Div. 1970).
The Prosecutor of Passaic County now seeks an order of the court that
1. All the testimony presented before the Passaic County grand juries during the course of the investigation of the above-entitled murder cases be released to the general public through the facilities of the news media.
2. All of the materials made available to the defendants in discovery proceedings be so released.
3. The transcript of the record of a hearing before Judge Robert Shaw of the United States District Court for the District of New Jersey, which took place in May 1968 concerning the attorney for defendant Matzner, be similarly released.
The prosecutor contends that an article entitled "Murder, New Jersey Style," published in the March 10, 1970 issue of Look Magazine is adversely critical of the role of his office; that it does not present an accurate picture of the investigation of the murder cases, and that if the article goes unanswered it will seriously undermine public confidence in law enforcement in Passaic County. He now seeks public disclosure of the aforesaid materials to prevent "a great travesty upon justice and irreparable harm to members of the Passaic County Prosecutor's Office."
Some of the materials referred to above were introduced in evidence or otherwise used during the course of the two trials. Understandably, counsel chose to use only those portions of the grand jury testimony and other materials which were helpful to their clients' cases. There remains now a residue of testimony, statements, reports and other similar materials which the prosecutor seeks to have disclosed to the public.
In reality the prosecutor is seeking to retry the cases in the press. He hopes to establish justifiable cause for the actions of his office by public disclosure of the materials in his hands. This is evident from the mention of "irreparable harm to members of the Passaic County Prosecutor's Office" and the reference to undermined public confidence in law enforcement in this county. Were he or members of his staff prosecuting a libel action or defending a malicious prosecution suit, a disclosure of the materials might be appropriate if relevant to the issues in such litigation. But here there are no such issues being presently litigated.
The use of the news media as a forum for the resolution of issues in criminal cases has been disapproved. Sheppard v. Maxwell , 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); State v. Van Duyne , 43 N.J. 369 (1964). The defense as well as the prosecution is prohibited from resorting to the news media for the purpose of creating a climate of favorable opinion before a trial. State v. Kavanaugh , 52 N.J. 7 (1968). Why should a prosecutor be privileged to release evidence to the news media tending to prove defendants' guilt after they have been acquitted? No authority for such a proposition has been submitted. Indeed, the whole rationale of our criminal law suggests the contrary. Through the evolution of the judicial process the theme of fundamental fairness has predominated. ...