On certification to the Superior Court, Law 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.
[83 NJ Page 352] We are called upon for the second time in this ongoing criminal case to review the trial court's order that a reporter turn over certain letters to the court for in camera inspection. On our first review, we reversed an earlier, similar order, holding that defendants had not made a sufficient showing under the new shield law (N.J.S.A. 2A:84A-21.1 et seq.) to warrant compelled production. State v. Boiardo, 82 N.J. 446 (1980). Our reversal, however, was without prejudice to defendants and permitted reapplication for such inspection upon presentation of further proofs. Such reapplication was made by defendants, and after hearing the additional evidence, the trial
court again ordered the reporter to produce the letters for in camera inspection.
The Appellate Division granted Ms. Goldstein's (the reporter's) motion for leave to appeal. While the matter was still pending there, we directly certified the appeal on our own motion. (R. 2:12-1). We reverse the trial court and further hold that in the absence of newly discovered evidence regarding the contents of the subpoenaed letters or other changed circumstances, defendants may not reapply to the trial court for their production. See infra at 358-359.
In our first opinion in this case, we gave effect to the legislative judgment clearly expressed in the new shield law: the need of the press for protection not only from the production of confidential material at trial but also for protection against even that limited disclosure that occurs when the court itself examines the material in camera. The same interest we found controlling in our earlier opinion -- the protection of confidential matters from any disclosure whatsoever -- is again involved. Under the circumstances before us it requires precisely the same protection.
We begin by reviewing defendants' contention that the compulsory process clause of the Sixth Amendment of the Federal Constitution requires production of the letters. Neither the present appeal nor defendants' first application presents a conflict between the new shield law and a criminal defendant's Sixth Amendment right to compulsory process since neither involves an impairment of that right. The right to compulsory process has never been held to require production of an item of evidence upon a defendant's mere unsubstantiated assertion that it would assist in his defense regardless of its availability through other sources. We do not question the relevance of the information contained in the letters. However, as we view the record in this case, the availability of numerous less intrusive sources of the information has been established to a reasonable certainty. It is reasonably certain that all that is contained in
the letters that has anything whatsoever to do with this trial is Patrick Pizuto's (the author's) written assertion that the State had promised him a non-custodial sentence in exchange for his cooperation*fn1 and had reneged on that promise. Proof that Pizuto said precisely this on numerous other occasions is available, and includes both oral and written statements by him. Thus, we again find it unnecessary, as we did when the case first came before us, to evaluate and balance the interest of the press in non-disclosure against the right of defendants to compulsory process. This is a balancing ultimately required under the new shield law only in those cases where that which is sought by compulsory process promises, at least with some degree of probability, to contain information not otherwise available that may be of help to a defendant. That is not the case here.
When this matter first came before us, the difficulty it presented stemmed from the incomplete state of the record. While there was evidence concerning the contents of the letters themselves, there was very little about what information was contained in the potentially less intrusive sources. Under those circumstances, it was clear that the order of production for in camera inspection was premature and had to be reversed, since the inquiry into the existence and contents of less intrusive sources had been minimal at best and the record suggested that such sources might be numerous.
We find reversal on the record now before us more clearly required than before. We are now reasonably certain as to the contents of the letters. Furthermore, the trial court has conscientiously examined the less intrusive sources and we now can say, again with reasonable certainty, that those sources will provide the same information, in many different forms (some more persuasive than the letters) as is contained in the letters.
It is clear that defendants have failed to meet the burden of proof imposed on them by the new shield law.
Pizuto's importance in this case is clear. An alleged former confederate of defendants, Pizuto agreed, as part of a plea bargain on an unrelated murder charge, to continue his participation in the alleged conspiracy while being "wired" so as to record the goings-on among the alleged participants in the conspiracy. His cooperation allegedly began in February 1978, and continued for more than six months, until his decision to turn informant was announced in the Passaic County courtroom where he entered his guilty plea to the unrelated murder. A number of events transpired thereafter (see Boiardo I, 82 N.J. at 450-452) creating doubt as to whether Pizuto would in fact be called to testify by the State, and would in fact testify if called. At the time of our original decision in this case, it appeared that Pizuto would be called to the stand, but there was speculation that he would assert his Fifth Amendment privilege and refuse to testify as the State's lead witness. However, since our opinion was filed, the State called Pizuto and, on direct examination, he testified without asserting the privilege.
It has been and continues to be defendants' contention that the letters sent from Pizuto to Ms. Goldstein contain information that is crucial to the defense's attack on Pizuto's credibility on cross-examination. In addition to other available sources, we now have Pizuto's testimony, taken in the hearing on this matter, as to the contents of the letters. Pizuto said that he sent Ms. Goldstein two letters. The first was addressed to her and in large part thanked her for her "honest" reporting. It also contained instructions for possible publication of the other letter attached. This second letter, although sent to Ms. Goldstein, was addressed to Major Dintino of the New Jersey State Police. Pizuto testified that this letter dealt with his dissatisfaction with State officials because of their failure to keep a promise that he would not serve any time in prison which was allegedly made to him before he was sentenced on the unrelated
murder charge. It berated Major Dintino for the unfair "deal" given to Pizuto by State officials after he had cooperated with them for a long period of time. The contents of the letters were partially confirmed by taped conversations between Pizuto and defendant James Vito Montemarano (referred to in Boiardo I). The tapes were ...