On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
King, Deighan and Bilder. The opinion of the court was delivered by King, P.J.A.D.
This motion for leave to appeal is taken by three media intervenors from a partial closure order entered at a bail hearing in a case where the State seeks the death penalty against two defendants and a life sentence against a third. The media intervenors, two newspapers and a radio station, seek disclosure of a detailed 25-page statement by an alleged co-conspirator, McKinnon, a forensic report by the State Police crime laboratory prepared following examination of a tire on defendant Marshall's car, and an eight-page transcript of an in camera discussion of these items. Both the State and the defendant Marshall oppose disclosure of these documents prior to trial.*fn1
The matter was before us previously. On December 31, 1984 I heard oral argument in chambers on the media appellants' emergent application for leave to appeal. At that time the panel decided that neither Judge Huber nor the interested media had received sufficient notice of the possibility of a closure application to hold the type of hearing contemplated by State v. Williams, 93 N.J. 39, 70-73 (1983). We therefore denied leave to appeal on January 3, 1985 without prejudice to the media appellants to formally intervene in the Law Division and to seek a Williams ' closure hearing before Judge Huber. They did so and the judge denied their application for release of McKinnon's detailed 25-page statement, the State Police forensic report, and the in camera transcript, because of potential prejudice to defendants' rights to fair trials. On February 28, 1985 after oral argument on this motion we filed our order granting leave to appeal, R. 2:2-3(b), noting that the appeal
would be decided on the merits on an accelerated basis, R. 2:9-2; R. 2:11-2, and that an opinion would issue "as soon as feasible." This is our conclusion.
In this case the State seeks the death penalty against defendants Marshall and Thompson for the killing of Marshall's wife in Lacey Township, Ocean County, on September 7, 1984. The State alleges that Marshall hired Thompson and McKinnon to kill his wife at a roadside turnoff near Oyster Creek on the Garden State Parkway, a limited-access turnpike which follows the Atlantic coastline in Ocean County. The State contends that Thompson and McKinnon were engaged to make the slaying look like a random robbery of the Marshall couple, resulting in her death and an assault on him. On September 7, 1984 at about 1 a.m. Marshall's wife was shot and killed in the parking lot; defendant Robert Marshall was struck on the head and allegedly rendered unconscious at that time.
The State alleges that Thompson was the killer for hire, that Marshall was the instigator, and that Cumber was also involved in the transaction, although perhaps never actually in New Jersey. McKinnon was also allegedly implicated and his detailed statement to the authorities is at the core of the present dispute. McKinnon has obviously turned State's evidence. He is now in protective custody in New Jersey. We understand that he stands prepared to testify and implicate Marshall, Thompson and perhaps Cumber, after having been insulated by a favorable plea agreement exposing him to a relatively short prison term.
The Prosecutor informs us that the trials probably will not begin until early Fall 1985. He says that there will certainly be two, and perhaps three, trials to resolve the matter. Motions for change of venue have been made by defendant Marshall. But his counsel candidly tells us that he is not sure whether or not he will press them, or if so, what venue he would urge on the court. We know nothing of the proposed strategy of defendants Thompson and Cumber in this regard. Thus we are
presently not at all certain when, where, and exactly how these matters will come to trial.
We must decide whether Judge Huber's decision of January 17, 1985 adhering to his closure order of December 24, 1984 meets the test of State v. Williams, supra.
Defendant Marshall was not charged with murder until December 21, 1984. On December 24 he moved for a reduction of his $1.5 million bail. On the same day, the State moved for revocation of bail on the ground that this was a capital case; defendant Marshall's lawyer then moved in open court for closure at the start of the proceeding on December 24. The judge, who did not know the closure motion would be made, denied the motion at the inception of the hearing. The media was not ...