On appeal from Superior Court, Law Division, Passaic County.
Bischoff, Botter and Dwyer. The opinion of the court was delivered by Bischoff, J.A.D.
This is an appeal by the State, with leave granted, from an order of the trial court granting defendant's application that "the pretrials or any pretrial hearings" in the case be held " in camera."
Defendant Robert Hannah stands indicted for the murder of his infant children Robayne and Romayne, alleged to have occurred on October 9, 1978. The matter of the closure of the pretrial proceedings to be conducted in the case was raised in open court November 5, 1979, following a discussion regarding the proposed voir dire of the jury panel.
Defense counsel asked that all proceedings be conducted in camera until the commencement of trial because he assumed the court's pretrial agenda would be complete and "there may be things which will be mentioned which [the judge] will reject or accept." He further argued that there may be matters discussed which a jury should not hear, but which may be reported in the papers and thus make it difficult to get a fair and unbiased jury. The assistant prosecutor joined in the application to "obviate any possibility of pretrial publicity against" either defendant or the State.
The trial judge, relying upon the fact that the application was made by defendant and joined in by the prosecutor, granted the application and said:
I might note on the record, but out of the presence of the press, that I have been advised in chambers that there may be substantial issues regarding statements made by the defendant in this case and I did want to note that that was one of the reasons that I granted [sic] this application, because the introduction of statements in the newspaper, as opposed to introduction at trial, may be very inappropriate.
No other basis for the action of closure appears in the record.
Two days later, in open court, the trial judge stated he had been approached by three reporters who referred to the case of Gannett v. DePasquale, infra , and asked him (1) to conduct a hearing and (2) for the right to be heard on the closure order. At this point the assistant prosecutor stated he had been instructed by the prosecutor that it was the official policy of the prosecutor's office not to exclude the press from any pretrial hearings or trials unless there were extremely unusual circumstances requiring closure. The assistant prosecutor withdrew his "joinder" in defense counsel's request to exclude the press and he asked that "the press be permitted to view the entire course of proceedings including pretrial motions."
The trial judge, without taking any testimony or considering any exhibits, stated he had ruled to exclude the public and press for the following reasons:
(1) The application was limited to the pretrial hearings.
(2) Defendant alleged that disclosures during the pretrial hearings might make it difficult to select a fair and impartial jury and for ...