On appeal from the Superior Court, Appellate Division (State v. Williams). On certification to the Superior Court, Law Division, Warren County (State v. Koedatich).
For vacation of Interim Order -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For remandment and dissenting -- Justice Schreiber. The opinion of the Court was delivered by Handler, J. Schreiber, J., dissenting.
These cases pose the question of whether and under what circumstances pretrial proceedings in a criminal prosecution can be closed to the public and the press. In each of these cases, the defendant has been charged with murder under the New Jersey Code of Criminal Justice and faces the death penalty. Defendants claim that the public and the press should be excluded from certain of their pretrial proceedings, specifically a probable cause hearing and bail applications. Defendants assert that the adverse publicity generated by the conduct of these pretrial proceedings in open court will prejudice their constitutional rights to a fair trial before an impartial jury.
This Court has never fully considered the permissibility of the closure of pretrial proceedings in a criminal prosecution. In State v. Obstein, 52 N.J. 516 (1968), the Court directed, without extended discussion, that a bail hearing in a capital case be held in camera to safeguard against "possible prejudice" of defendant's plenary trial through public circulation of "obviously incomplete but necessarily incriminating evidence." Id. at 522. However, major developments have occurred in the law regarding public access to court proceedings since our Obstein decision, including several United States Supreme Court decisions that have addressed the constitutionality of the closure of criminal proceedings. Globe Newspaper Co. v. Superior Court, U.S. ,
102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980); Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979); see also Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976). This Court also dealt with this subject in State v. Allen, 73 N.J. 132 (1977). These developments prompt our reconsideration of the standards for determining whether criminal pretrial proceedings can be closed in order to overcome prejudicial publicity.
We now determine that the public and the press have a protectible constitutional interest in access to all pretrial proceedings in the prosecution of a criminal case. This constitutional interest is based upon both the federal and State constitutions and must be given appropriate weight when counterbalanced with a defendant's constitutional right to a trial before an impartial jury. Accordingly, we hold that all pretrial proceedings in criminal prosecutions shall be open to the public and the press. In the context of these cases, the only exception to this general rule will arise in those instances in which the trial court is clearly satisfied that as a result of adverse pretrial publicity, a realistic likelihood exists that a defendant will be unable to secure a fair trial before an impartial jury if the pretrial proceeding is conducted in open court.
In State v. Williams, the defendant, James Williams, was arrested on January 2, 1983 and charged with purposely and knowingly causing the death of Beverly Mitchell. N.J.S.A. 2C:11-2(a). Three days earlier, the victim had been found slain at the Bellevue Care Center in Trenton, Mercer County, where she had been employed. She had been stabbed repeatedly and was the probable victim of a sexual assault.
The Public Defender who represented Williams requested a bail hearing and subsequently moved that it be held in camera. Defendant contended that massive adverse pretrial publicity, including that which would be generated by an open bail hearing,
would deprive him of a fair trial before an impartial jury. At a hearing on the matter, the trial court granted the request of two local newspapers, the Trenton Times and The Trentonian, to be heard as amicus curiae, and after argument, denied defendant's motion to close the hearing. The court's oral ruling recognized the concern for selecting an impartial jury, but rejected the need for closure "because in the experience that I have had over a number of years in picking juries in cases, it appears that no matter how much publicity is involved, there are still individuals that are ready and available for a jury."
The defendant then sought emergent relief for leave to appeal to the Appellate Division. On this application, defendant filed affidavits containing samples of the newspaper publicity concerning the case.*fn1 The defendant's motion for leave to appeal was denied. Defendant's counsel immediately filed with this Court a motion for emergent relief seeking an in camera bail hearing. A stay of the bail hearing was issued on an emergency basis to permit the entire Court's consideration of the matter. The full Court then granted defendant's motion for leave to appeal and vacated the emergency stay. The Court entered an interim order remanding the matter to the trial court for the limited purpose of conducting a bail hearing in camera and required the impoundment of the transcript of such proceeding. The bail hearing was conducted in camera and the trial court
ordered that Williams continue to be held without bail. The transcript of the bail hearing remains impounded.
In State v. Koedatich, the defendant, James Koedatich, was arrested on January 18, 1983 and charged with the murder of Deidre O'Brien. N.J.S.A. 2C:11-2(a). The victim had been abducted while driving to her parents' home in Morris County on December 5, 1982 and was stabbed to death. Koedatich's bail was set at $250,000.
Defendant moved to exclude the media and the public from his upcoming probable cause hearing, contending that extensive pretrial publicity would prevent his having a fair trial. Several media organizations were granted leave to intervene in proceedings on the motion. After oral argument the trial court denied defendant's motion, relying principally on the case of State v. Joyce, 160 N.J. Super. 419 (Law Div.1978), aff'd sub nom. State v. DeBellis, 174 N.J. Super. 195 (App.Div.1980). The court initially found that defendant failed to demonstrate that public access to the proceedings would constitute a serious and imminent threat to the integrity of the trial. Although the court recognized the extensive press coverage of the case in the New York and northern New Jersey metropolitan area, it held that defendant had failed to provide any factual basis to support a substantial probability of prejudice in Warren County, where the case will be tried and which is "somewhat removed from the center of pretrial publicity."*fn2 The court also found that defendant had failed to meet his burden to prove that a fair trial could not be ensured by other alternatives, such as temporary adjournment
of the trial, change of venue, a foreign jury, searching voir dire and emphatic and clear jury instructions.
Defendant made an application to the Appellate Division for emergent relief to grant his motion for leave to appeal. Prior to a decision by the Appellate Division, this Court directly certified the matter pursuant to R. 2:12-1 and granted the motion for leave to appeal. Koedatich subsequently moved before this Court that his pending bail reduction hearing also be closed. The Court issued an interim order granting defendant's motion for closure. Both the bail reduction hearing and the probable cause hearing have since been held in camera; bail was not reduced and probable cause was found. The transcripts of these proceedings have not been released to the public.
The initial issue presented by these cases is whether the public and the press have a constitutional right of access to pretrial proceedings in criminal cases. On this fundamental issue, we perceive a confluence of the federal and State constitutions in terms of substantive concerns and interpretive philosophy. These shared constitutional views bring us to the conclusion that a public right of access to pretrial proceedings in criminal cases is embraced by both constitutions.
Although the United States Supreme Court has never directly determined that the First Amendment creates a right of the [93 NJ Page 52] public and the press to attend criminal pretrial proceedings,*fn3 it has declared that the First Amendment commands that criminal trials be held in open court. Richmond Newspapers, supra; Globe Newspaper, supra. It has recognized that the underlying function of the First Amendment is to "ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government," and that the right of access to criminal trials is protected by the First Amendment because open trials serve to guarantee that the "'discussion of governmental affairs' is an informed one." Id. at , 102 S. Ct. at 2619, 73 L. Ed. 2d at 255-56 (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S. Ct. 1434, 1437, 16 L. Ed. 2d 484, 488 (1966)).*fn4
In Globe Newspaper, supra, the Supreme Court anchored its analysis upon "the institutional value of the open criminal trial [which] is recognized in both logic and experience." Id. at , 102 S. Ct. at 2620, 73 L. Ed. 2d at 257 (emphasis added). It first stressed the historic and current practice of holding criminal trials in open court. "This uniform rule of openness has been viewed as significant in constitutional terms not only 'because the Constitution carries the gloss of history,' but also because 'a tradition of accessibility implies the favorable judgment of experience.'" Id. at , 102 S. Ct. at 2619, 73 L. Ed. 2d at 256 (quoting Richmond Newspapers, supra, 448 U.S. at 589, 100 S. Ct. at 2834, 65 L. Ed. 2d at 997 (Brennan, J., concurring in the judgment)). The Court also emphasized the "particularly significant role" played by open criminal trials "in the functioning of the judicial process and the government as a whole," observing that
[p]ublic scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole. Moreover, public access to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the judicial process. And in the broadest terms, public access to criminal trials permits the public to participate in and serve as a check upon the judicial process -- an essential component in our structure of self-government. [ U.S. at , 102 S. Ct. at 2620, 73 L. Ed. 2d at 256-57 (footnotes omitted)]
The question posed by the present appeals is whether this analysis of the "institutional value" of open criminal trials applies with equal force to criminal pretrial proceedings. We believe that it does and conclude therefore that the First Amendment embraces a public right of access to such pretrial proceedings.
The pretrial aspects of criminal prosecutions have become increasingly important in the modern administration of criminal justice. See Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970) (counsel must be provided in all pretrial proceedings that are critical in the criminal prosecution). Court decisions protecting the constitutional rights of defendants have given rise to new pretrial proceedings that frequently have a
major effect on the outcome of a prosecution. E.g., United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Miranda v. Arizona, 384 U.S. 436, 438, 86 S. Ct. 1602, 1609, 16 L. Ed. 2d 694 (1966); Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); State v. Driver, 38 N.J. 255 (1962). As a result of these developments, proceedings in advance of trial are now of central importance in our system of criminal adjudication. United States v. Criden, 675 F.2d 550, 555-57 (3 Cir.1982); see Gannett, supra, 443 U.S. at 397 n. 1, 99 S. Ct. at 2914 n. 1, 61 L. Ed. 2d at 632 n. 1 (Powell, J., concurring); id. at 434-39, 99 S. Ct. at 2933-35, 61 L. Ed. 2d at 655-59 (Blackmun, J., concurring in part and dissenting in part).
There are, we are satisfied, important institutional values that are served by opening criminal pretrial proceedings to the public. In view of the heightened role of the pretrial phases of a criminal prosecution, the closure of pretrial proceedings, as the closure of the trial itself, can naturally detract from "the functioning of the judicial process and the government as a whole." Globe Newspaper, supra, U.S. at , 102 S. Ct. at 2620, 73 L. Ed. 2d at 256. Conducting pretrial criminal proceedings in an atmosphere of secrecy is offensive to the general public and undermines the public trust essential to an effective judicial system. Exclusion of the public compromises the appearance of fairness because "secret hearings -- though they be scrupulously fair in reality -- are suspect by nature. Public confidence cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court's decision sealed from public view." Gannett, supra, 443 U.S. at 429, 99 S. Ct. at 652-53 (Blackmun, J., concurring in part and dissenting in part) (quoting United States v. Cianfrani, 573 F.2d 835, 851 (3 Cir.1978)). In addition to kindling public misperception and eroding public confidence, closure of significant pretrial proceedings perpetuates general ignorance and cuts off public knowledge necessary to a full understanding of the criminal justice system. See Gannett, supra, 443 U.S. at 428-29,
99 S. Ct. at 2830-31, 61 L. Ed. 2d at 652. Conversely, the openness of pretrial hearings in criminal causes fosters an informed public "discussion of governmental affairs." Globe Newspaper, supra, U.S. at , 102 S. Ct. at 2619, 73 L. Ed. 2d at 256; see State v. Allen, supra, 73 N.J. at 155-56 (Pashman, J., concurring). Open proceedings contribute to the public's knowledge and encourage a general appreciation of the administration of criminal justice. Consequently, real benefits redound to the judiciary as a governmental institution -- the judicial function itself is enhanced -- by providing public access to criminal pretrial proceedings.
In addition to these considerations, the Supreme Court gave significant weight to the unbroken tradition of public openness in finding a constitutional right of public access to a criminal trial. Although the history of open criminal pretrial proceedings is not centuries old, we nevertheless believe that the tradition of openness in these proceedings has become sufficiently pronounced to have earned "the favorable judgment of experience." Globe Newspaper, U.S. at , 102 S. Ct. at 2619, 73 L. Ed. 2d at 256 (quoting Richmond Newspapers, 448 U.S. at 589, 100 S. Ct. at 2834, 65 L. Ed. 2d at 997) (Brennan, J., concurring in the judgment)). As noted earlier, pretrial hearings have evolved into an important component of the administration of criminal justice over the past several decades. The near uniform practice in the federal and state court systems has been to conduct pretrial criminal proceedings in open court.*fn5 The experience [93 NJ Page 56] in New Jersey is parallel. Since the adoption of our current Constitution in 1947, the rules governing New Jersey courts have endorsed a strong and consistent policy in favor of open judicial proceedings.*fn6
Thus, we are satisfied that "both logic and experience" (Globe Newspaper, U.S. at , 102 S. Ct. at 2620, 73 L. Ed. 2d at 257) confirm the institutional value of open pretrial hearings in criminal cases. Accordingly, we conclude that the First Amendment embraces a ...