On appeal from the Superior Court of New Jersey, Law Division, Sussex County.
Michels, Shebell and Gaynor. The opinion of the court was delivered by Michels, P.J.A.D.
Pursuant to leave granted by this court, the State appeals from an order of the Law Division that quashed a subpoena duces tecum served upon petitioner Evan Schuman, a reporter for the New Jersey Herald to appear as a State's witness in the kidnapping-murder trial of Gary J. Mayron (Mayron).
On May 15, 1986, Mayron was indicted by the Sussex County Grand Jury and charged with kidnapping Susan Brennan, (N.J.S.A. 2C:13-1b), and with murdering her (N.J.S.A. 2C:11-3). Thereafter, a notice of aggravating factors was filed by the State alleging that the murder was outrageously and willfully vile, N.J.S.A. 2C:11-3c(4)(c) and was committed in the course of a kidnapping, N.J.S.A. 2C:11-3c(4)(g), thus designating the matter as a capital case. See N.J.S.A. 2C:11-3c(2); R. 3:13-4. On March 27, 1986, Mayron was arrested and thereafter incarcerated without bail. On April 8, 1986 and April 10, 1986, the New Jersey Herald, a daily newspaper of general circulation in northwest New Jersey, published front page articles written by Schuman in which he reported specific inculpatory admissions about the charges allegedly made to him by Mayron. The April 8, 1986 front page article contained the following headline: "Murder Suspect: 'I just lost it.'" The article, which was written by Schuman, elaborated:
In an interview with The Herald Monday, Mayron said he had sexual relations with Susan Brennan of Lake Hiawatha late last month and then beat her in a Parsippany motel room before beating her to death and leaving her in Sparta.
In the April 10, 1986 edition of The Herald, a second front page article appeared, also written by Schuman, which explained:
In a follow up phone interview with The Herald on Tuesday, Mayron said he killed Brennan "out of a lot of hate and a lot of anger" for her because she had sex with him so soon after they had met.
"You just don't do that unless you love somebody", he claimed he told the girl as they drove from a Morris County motel to a wooded area of Sparta where he said he kicked and beat her while she pleaded with him.
"'Please don't kill me. I'm sorry,'" Mayron quoted the teenager as saying.
"I didn't mean to kill her. Just to hurt her. She was in the place of my real mother", said Mayron, who was adopted. "And that's what I felt like doing to her" (his mother).
"It was like physically it was me but mentally it wasn't. Anger and hate constantly controlled me for four or five hours."
The State issued subpoenas requiring Schuman to testify before the grand jury and at a pretrial motion to suppress, but those subpoenas were withdrawn without prejudice apparently after Schuman asserted the newsperson's privilege. Subsequently, Schuman was served with a subpoena to testify at the Mayron trial. However, Schuman moved to quash the subpoena based on the newsperson's privilege. In his affidavit supporting the motion, Schuman stated, in part, that:
4. The testimony I am to provide on behalf of the State was obtained solely and exclusively in the course of pursuing my professional activities as a reporter for the New Jersey Herald.
5. I have not been an eyewitness to any alleged act or offense the Defendant is accused of having committed.
6. There is a public perception that newspersons are immune from compulsory process. The belief that newspersons cannot be called upon to testify encourages the free flow of information between sources and reporters regardless of whether the sources request confidentiality. Compelled disclosure would decrease the flow of information available to the public because reporters will be ethically compelled to advise their sources that confidentiality may not be able to be guaranteed, or reporters will refrain from disclosing their sources.
7. The information sought by the subpoena is subject to the newsperson's privilege as set forth in N.J.S.A. 2A:84A-21 et seq., Evid.R. 27, which privilege I do hereby invoke and which information I ...