On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Handler and Pollock. For modification and affirmance -- Justice Schreiber. The opinion of the Court was delivered by Wilentz, C.J. Schreiber, J., dissenting.
[82 NJ Page 448] We are asked in this case to review the order of a trial court directing Robin Goldstein, a newspaper reporter, to produce a letter for in camera inspection sent to her by Patrick J. Pizuto, a prospective prosecution witness in a criminal trial. Seeking to use the letter to impeach Pizuto's testimony, four defendants at the trial applied for judicial enforcement of a subpoena duces tecum served on Goldstein on March 31, 1980. The reporter claimed the protection of the newsperson's privilege, Evid.R. 27,*fn1
and moved to quash the subpoena on April 3. After a hearing on April 14, the trial court ordered production of the letter for in camera inspection under the authority of section 4 of Chapter 479, Laws of 1979, N.J.S.A. 2A:84A-21.4, the new shield law. After the Appellate Division denied review, we granted Goldstein's leave to appeal and stayed the trial court's order. We now hold that defendants have failed to satisfy the requirements for that production order under the new law. Specifically they have not demonstrated, by a preponderance of the evidence, the non-availability of less intrusive sources which provide information substantially similar to that contained in the letter. Accordingly, we reverse the determination of the trial court requiring production pursuant to N.J.S.A. 2A:84A-21.4 of the letter sent to Ms. Goldstein. Such reversal is without prejudice to further application by defendants to secure the letter, with full opportunity to establish the absence of less intrusive sources.
Although the issue presented by Ms. Goldstein's appeal -- whether a reporter is required to turn over information for in camera inspection by a trial judge in a criminal case -- has been addressed and resolved by this Court in In re Myron Farber, 78 N.J. 259 (1978) (hereinafter Farber), our holding there must be supplemented, since subsequent to Farber the Legislature amended the shield law then in effect, L. 1960, c. 52, p. 458, § 21, amended L. 1977, c. 253, §§ 1 and 2 (N.J.S.A. 2A:84A-21 and 21a), codifying the two-step structure of the Farber procedural guidelines. 78 N.J. at 276-77. We conclude that the new shield law embodies those protections of reporters contained in the prior law as it was interpreted in Farber, adding only the requirement that a defendant seeking information in a newsperson's possession must prove that, on balance, the value of the particular information to a fair trial outweighs the importance to a free press of shielding that information from disclosure. However, a resolution of that balance in this case is unnecessary at this point, because defendants have failed to show that the information sought is not available through a less intrusive
source as is required by the new law.*fn2 A careful review of the facts before us will reveal the deficiencies in the defendants' case, when measured against the procedural burdens established by the new law.
The defendants*fn3 who seek production and eventual disclosure of the letter in Ms. Goldstein's possession are presently on trial for loan sharking, bookmaking, extortion, armed robbery, threatening to kill, obtaining money by false pretenses, and conspiracy to commit these and other offenses. Defendant DeVingo has also been indicted for murder.*fn4 These charges are apparently based to a significant extent on evidence obtained through the cooperation of Pizuto, an alleged former confederate of defendants and the author of the letter in Goldstein's possession. Although the State has not definitely indicated whether it will call Pizuto as a witness, he is clearly a potential source of relevant and material testimony. The record indicates that he may possess extensive knowledge of the criminal operations of defendants. He has claimed that for many months he covertly recorded incriminating conversations between himself and defendants. He has also stated he was an eye witness to the murder allegedly committed by defendant DeVingo.
The particular material sought by defendants is a letter sent by Pizuto to Goldstein, a reporter with the Daily Register of Monmouth County, who has been covering the story involving defendants for over two years. Defendants claim that the letter probably contains material that would aid in the impeachment
of Pizuto on cross-examination after he has testified on the State's behalf. Specifically, they claim that there is a reasonable probability that the letter describes an alleged "deal" between Pizuto and the State as well as Pizuto's subsequent dissatisfaction with the State for reneging on that deal. This information, defendants argue, is probably inconsistent with testimony Pizuto gave under oath when entering a plea of guilty to an unrelated murder pursuant to a plea bargain in September 1978. In those proceedings, Pizuto stated on the record that in exchange for his cooperation the State had promised that he would receive a sentence of no more than 15 years in prison. He assured the court that no other promise was made.*fn5 He further asserted that his cooperation and his determination to tell all that he knew had nothing to do with any promise by the State. Instead, he explained that his willingness to help the State was derived from his decision to become a new person, a new man; to live a different life.
Based on information defendants have received from Pizuto himself, they contend that the information contained in the letter will prove to be clearly inconsistent with Pizuto's sworn testimony about his motivations for cooperating with the State, and that such inconsistency will have a profound effect on Pizuto's credibility as a witness for the State. It appears that after Pizuto's plea was entered for the unrelated murder charge, he was secretly "relocated" by federal authorities (under the federal witness protection program) in order to ensure his safety between the entry of his guilty plea and his ultimate cooperation as a prosecution witness.
One month before the trial against defendants was to begin Pizuto reportedly changed his mind, and decided that he would not cooperate with the State. Stories appeared in the media
attributing statements to Pizuto that the State had "reneged" on its "deal" and that he was going to "tell all." These statements implied that he would reveal some embarrassing information about the way the State had handled his case. The stories provoked speculation about Pizuto's continued willingness to testify and the State's continued interest in using him as a witness. This speculation has yet to be resolved.
Pizuto's decision to terminate cooperation with the State appears to have resulted from the State's suggestion to the sentencing judge in the unrelated murder case that Pizuto receive a fairly substantial sentence of imprisonment. He appears to have viewed the suggestion as a breach of the agreement the State made with him. According to Pizuto he was assured that he would serve little or no time in jail. He claimed this breach was an example of the State's allegedly unfair and improper conduct in this case.
Pizuto's claims were essentially repeated by his attorney at the sentencing proceedings. Pizuto and his wife sent letters to the sentencing judge; they presumably contained information about the same matters. The judge imposed a sentence of 8 to 12 years imprisonment, well within the bargained term of no more than 15 years imprisonment that Pizuto had described in sworn testimony. Pizuto is now incarcerated in the Passaic County Jail, where he has been since March 6, when his bail was revoked on the unrelated murder charge.
Ms. Goldstein's connection with defendants' case, and with Pizuto himself, apparently developed in the course of her coverage of the trial since September 1978. Her coverage enabled her to gain Pizuto's confidence, and she wrote numerous stories in which Pizuto was quoted, sometimes directly. Defendant Montemarano was aware of her interest in the case as well as her ability to get information from Pizuto because of the trust and confidence Pizuto had in her. Montemarano was the only witness called by defendants to testify in the proceedings from which Goldstein appeals, in which he described her coverage of
the case and also recounted numerous telephone conversations he had with Pizuto. During Montemarano's testimony,*fn6 he revealed that approximately one year before defendants' trial began, while Pizuto was still out on bail, Pizuto advised him on the telephone that "one of these days" he was going to send letters to the press about the conduct of the Attorney General's office toward him as well as information about the deal that he had made with the State. Numerous telephone conversations between Pizuto and Montemarano followed. Shortly after the trial commenced, Pizuto called Montemarano from jail and advised him that "the letters had been sent to the press," which statement carried with it the clear expectation that their substance was to be published by the recipient of the letters. After waiting several days and finding no such publication in the press, Montemarano, who had concluded that the letters were probably sent to Goldstein because of her relationship with Pizuto, asked her if she had received them. Ms. Goldstein said that she had but refused to discuss their contents, and indicated that they would not be published. Such decision not to publish was the subject of continued conversation between defendant Montemarano and Goldstein.
According to Montemarano, Pizuto, in one of the phone conversations between them, described the contents of the letter. It was subsequently represented by Ms. Goldstein's counsel that she had received from Pizuto one letter consisting of two handwritten pages, "designated as being confidential by Mr. Pizuto." Montemarano revealed in that testimony that he had recorded this particular telephone conversation with Pizuto, as well as all other telephone conversations between them. He
intends to produce these recordings for use at some point in the trial. Montemarano also testified that shortly after he learned of the letter and spoke to Ms. Goldstein about its publication, he informed his attorney about it and this information was transmitted to all other defense counsel. At that time, defense counsel, specifically Mr. DeVingo's, subpoenaed Goldstein to produce the letter from Pizuto. As mentioned previously, Goldstein moved to quash the subpoena in exercise of her newsperson's privilege, and the trial court, pursuant to the new shield law, held the hearing required by that statute to determine whether she should be ordered to turn the letter over for in camera inspection by the court. These proceedings culminated in an order for production for in camera inspection, which order is now before us for review.
In recent years conflicts between rights of fair trial and free press have frequently emerged on the judicial battleground. The dilemma posed by the clash of these basic constitutional principles manifests itself in a variety of factual settings. Among them are attempts to control prejudicial publicity against defendants through use of closure or "gag" orders imposed on trial participants or the press and attempts to provide live broadcast coverage of criminal pretrial and trial proceedings. The situation now before us presents perhaps the most profound conflict: a request by a criminal defendant for confidential information in the possession of a reporter who is unwilling to reveal the source of the information or the information itself. In Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965), the United States Supreme Court stated that:
The free press has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences, including court proceedings. While maximum freedom must be allowed the press in
carrying on this important function in a democratic society, its exercise must necessarily be subject to the maintenance of absolute fairness in the judicial process. [381 U.S. at 539, 85 S. Ct. at 1631, 14 L. Ed. 2d at 699].
However, in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976), that same Court expressly rejected the task of assigning priority to either the First Amendment or the Sixth Amendment, determining that neither set of rights was entitled per se to precedence. 427 U.S. at 561, 96 S. Ct. at 2803, 49 L. Ed. 2d 699. As a result of this holding, it is necessary in each case where a fair trial and a free press are at odds to balance the particular interests involved, and consider, under the precise facts before the court, whether and in what manner a reconciliation of competing interests may be accomplished that will cause minimum interference with the rights of the parties. CBS, Inc. v. Superior Court, 85 Cal.App. 3d 241, 252-253, 149 Cal.Rptr. 421, 427 (Ct.App.1978).
The issue now before us -- the compulsion of reporters to divulge confidential information in criminal proceedings -- was addressed by the United States Supreme Court in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), albeit in a grand jury rather than a Sixth Amendment context. In Branzburg, the Court held that reporters had no First Amendment privilege of nondisclosure of confidential information when such information was sought by a grand jury properly investigating criminal conduct. Two years later, when faced with a claim of executive privilege, that Court reasserted the primacy of the need for the full production of evidence in criminal proceedings. In United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Court emphasized that:
We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant
facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. [418 U.S. at 709, 94 S. Ct. at 3108, 41 L. Ed. 2d at 1069].
In Farber, this Court was faced with the task of applying the principles of Branzburg and Nixon to a situation where a newsperson relied upon reportorial privilege to resist a defendant's subpoena for the production of confidential information in a criminal proceeding. Because the Court in Branzburg created, at best, a qualified privilege against forced disclosure,*fn7 a reporter's privilege would necessarily yield unless bottomed on the protection derived from a state constitutional or statutory provision. "It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman's privilege, either qualified or absolute.*fn8 408 U.S. at 706, 92 S. Ct. at 2669, 33 L. Ed. 2d at 654.
In Farber, we disposed of the possibility that an absolute newsperson's privilege existed under New Jersey law. We there held that the privilege created by N.J.S.A. 2A:84A-21, was intended by the Legislature to be as broad as possible. But see 78 N.J. at 288, Pashman, J., dissenting -- Legislature intended the privilege to be absolute; id. at 300-301. Handler, J., dissenting -- Legislature meant to qualify privilege. Given the circumstances before us in that case, we held the statutory privilege must yield to the accused's right to compulsory process ...