By the filing of certain aggravating factors the State has determined that defendant, Byron Halsey, is death eligible. He seeks to minimize the effect of pretrial publicity through closure of pretrial proceedings and enhancement of jury selection procedures. The focus of this opinion is the resolution of those issues within the framework of the basic contours recently sketched by the New Jersey Supreme Court in the cases of State v. Ramseur, 106 N.J. 123 (1987) and State v. Biegenwald, 106 N.J. 13 (1987).
On November 15, 1985, Tyrone and Tina Urquhart were murdered and later found in the cellar of their home. Defendant, Byron Halsey, has been accused and indicted for the commission of these crimes. A trial date of May 12, 1987 has been scheduled. Through an array of motions filed on behalf of defendant, certain pretrial issues remain to be resolved that of necessity must be determined in advance of trial. They are: closure of designated pretrial proceedings, change of venue, increased peremptory challenges, counsel voir dire participation, and jury selection through implementation of the struck-jury system. The court shall discuss and decide these matters in the order of their statement.
Closure of Designated Pretrial Hearings.
In advance of the determination of State v. Biegenwald, both the court and counsel had anticipated hearings on certain pretrial aspects of the case that, if given great notoriety in the press, could substantially impact on defendant's right to a fair and impartial trial. Defendant, fully aware of the sensitivity of these motions, moved for closure which was opposed by the
State as well as the organized press. The press' participation in these proceedings arise from this court's adherence to the mandate of notice set forth in State v. Williams, 93 N.J. 39, 72 (1983). At the hearing on the closure application the court closed a portion of such hearing to permit the court to identify the critical issues so as to ensure that potentially prejudicial material is not prematurely revealed that would adversely impact on defendant's rights under the Sixth Amendment of the United States Constitution and Art. I, par. 10 of the New Jersey Constitution. State v. Williams, supra at 73; State v. Marshall, 199 N.J. Super. 502 (App.Div.1985). During this in camera proceeding counsel for the press was permitted to remain subject to their viva voce representation that defendant's proffer by way of identification of critical issues would remain confidential and not be revealed to the assembled reporters.
Defendant's presentation in support of closure consisted of approximately 40 newspaper articles and two television tapes provided by CBS and NBC news that were a composite of news programs broadcasted throughout the metropolitan area immediately after the discovery of these crimes and during their early investigation. Also submitted were statistical data directed towards population, households, newspaper circulation and an extrapolation of readership in Union County.
The leading authorities on a motion for closure are State v. Williams, supra, and Press Enterprise Company v. Superior Court, 478 U.S. , 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986). Each recognizes the tension that exists between the public's right of access to a pretrial proceeding under the First and Sixth Amendments of the United States Constitution and Art. I, pars. 6 and 10 of the New Jersey Constitution. Yet, despite that tension, each determined that the right to an open public trial is a shared right of the accused and the public, the common concern being the assurance of fairness. Press Enterprise Co., supra, 478 U.S. at , 106 S. Ct. at 2739, 92 L. Ed. 2d at 9. While the right is not absolute, it prevails unless
defendant can demonstrate that there is a realistic likelihood that his right to an impartial jury will be threatened from adverse publicity emanating from an open trial proceeding and means other than closure are not available to preserve the fairness of the trial. The stated standard is the very least that defendant must demonstrate. It is arguably no longer viable in light of Press Enterprise Co.'s post- Williams decision that the preliminary hearing shall be closed only if specific findings are made demonstrating that first, there is a substantial probability that defendant's right to a fair trial will be prejudiced by publicity that closure would prevent, and second, the reasonable alternatives to closure cannot adequately protect defendant's fair trial rights. With both of these yardsticks in mind, the court is satisfied that the existing pretrial publicity does not mandate closure. Further, that the critical issues proffered in camera, if considered immediately in advance of jury selection, would offend either standard and that a course of action other than closure will remove the existent constitutional tension and promote harmony between articles and amendments that seemingly, in this context, appear to be constitutionally repugnant to each other.
The court's analysis commences with the 40 newspaper articles submitted by defendant in support of his application for closure and change of venue. In terms of time, they span the period immediately following the occurrence of the crime through March 1987, a segment of approximately 17 months. (There were articles published every day from November 16, 1985 to November 21, 1985. Thereafter, articles were published on November 27, 1985, January 16, 1986, February 28, 1986, November 15, 1986, February 18, 1987 and February 19, 1987 for a total of 12 days in which articles concerning the incident appeared in the newspaper.) Thirteen of the articles received front page treatment, nine of the articles contained pictures of defendant, five included pictures of Tina Urquhart, and one showed Tyrone's x-ray with a nail in his head. Some articles made no mention of defendant; others recounted his criminal
and social history, and at least three asserted his innocence. These articles were, for the most part, objective accounts of early investigatory findings focused on the week succeeding the crime's occurrence. There has not been a continuous flow of coverage except for that centered around the initial occurrence and that precedent to these applications. Nothing contained in the articles is tainted with the stain of patent inadmissibility, and what was contained in the articles will more than likely partake of evidence at the trial. Unlike Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966), the articles were not vicious nor impelling of a carnival atmosphere. While the photograph of the x-ray of Tyrone Urquhart with a nail in his head is potentially inflammatory, no indication of that impact has been surveyed and presented to the court. It also was published approximately 17 months ago.
The impact of the newspaper coverage is appropriate to the consideration of the composite of television news tapes. They occurred 17 months ago, were reportorial of the investigation, fleetingly displayed an x-ray of Tyrone with nails in his head, and broadcasted Prosecutor Stamler characterizing this case as "the ultimate child abuse" and stating that he would seek the death penalty. No estimate of the size of the viewing public was submitted, but it is fair to infer that major network news reached most New Jersey households with television sets.
The Newark Star Ledger has a daily Union County distribution of 80,760 and a daily statewide distribution of 448,668. Sunday distribution is approximately 50% higher. The Courier News has a daily distribution of 58,350 with 11,921 copies distributed in Union County. The Daily Journal is substantially a Union County newspaper with an in-county circulation of approximately 35,000 out of 36,000 copies. The 1980 census indicates that the population of Union County is 504,094; that 355,548 of its residents are between the ages of 18 and 74; and that there are 177,973 households. It is submitted that 45% of these households would read the Star-Ledger, 5.7% the Courier News and 19-20% the Daily Journal.
From these materials reviewed the court is able to discern that media coverage was not continuous and was remote in its inflammatory aspects. It lacks the potential to destroy the calmness and objectivity required of jurors. Any passions that it may have aroused have had an ample opportunity to dissipate. Lastly, adverse pretrial publicity may be ferreted out by an unabbreviated and searching voir dire examination immediately preceding the trial. For these reasons, closure based on pretrial ...