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State v. Neulander

July 18, 2002

STATE OF NEW JERSEY, PLAINTIFF,
v.
FRED NEULANDER, DEFENDANT-RESPONDENT.
IN RE APPLICATION OF PHILADELPHIA NEWSPAPERS, INC. INTERVENOR-APPELLANT.



On appeal from the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

The issue in this appeal concerns the power of a court, following a hung jury in a capital murder trial that will result in a defendant's imminent retrial for capital murder, to prohibit representatives of the press from attempting to conduct interviews of the jurors after the trial court declared a mistrial.

Defendant's prosecution and trial on charges of murder, felony murder and conspiracy have been the subject of intense media attention and widespread coverage. Prior to jury selection, the trial court sent a written invitation to various representatives of the media to attend an informal conference with the court on July 18, 2001. Following that conference, the trial court issued on the same date an order governing media coverage during trial proceedings (July 18, 2001 Order). Paragraph 13 of the July 18, 2001 Order provided that the identities of jurors could not be publicized in any way unless authorized by the court. Paragraph 15 stated that media representatives were barred from contacting or attempting to interview any juror or potential juror. Philadelphia Newspapers, Inc. (PNI) and The Associated Press (AP) moved before the trial court to delete paragraph 13 and to amend or modify paragraph 15 of the July 18, 2001 Order.

Meanwhile, jury selection commenced on August 20, 2001. During the first juror voir dire proceeding the following day, attended by several media representatives, the first four jurors were identified by name, placed under oath and examined by counsel. Following that day's proceedings, PNI filed an emergent motion seeking the court's consent to publication of news reports that might identify or contain descriptions that could reasonably identify potential jurors summoned or examined on August 20 and 21, 2001. On August 31, 2001, the trial court denied PNI's motion to vacate Paragraph 13, but amended paragraph 15 of the July 18, 2001 Order to permit media representatives to request relaxation of the juror no-contact provision subsequent to the entry of a verdict. The Appellate Division denied PNI's motion for leave to appeal.

The trial began in mid-October and jury deliberations commenced November 2, 2001. On November 13, 2001, the trial court determined that the jurors were unable to reach a verdict, declared a mistrial and discharged the jury. PNI immediately moved to vacate or relax paragraph 15 of the July 18, 2001 Order to permit interviews of the discharged jurors. The trial court denied the motion and ruled that both paragraph 13 and paragraph 15 remained in full force and effect. The trial court determined that relaxation of either paragraph would have the capacity to undermine or weaken defendant's right to a fair trial on retrial of the charges. If these paragraphs were not enforced, the court explained, jurors summoned for possible jury service would know that they risked having their names published and their private deliberations analyzed and broadcast. The court found that such a result could chill the free exchange of ideas in the jury room and potentially restrict the jury pool. PNI moved for leave to appeal, following which the trial court supplemented its opinion in a letter to the Appellate Division. That letter explained that jurors had reported to the court that they experienced episodes of attempted contacts by the media and that some publications in violation of the July 18, 2001 Order had occurred. The Appellate Division upheld the trial court's restrictions, noting that the record supported the judge's conclusion that interviews with discharged jurors and publication of their names would pose a danger to defendant's right to a fair trial.

On April 22, 2002, this Court vacated paragraph 13 of the July 18, 2001 Order to the extent that it restrained the use of juror identification information that is part of the public record of the proceedings, and modified paragraph 15 to extend its application until the conclusion of defendant's retrial and the return of the verdict and applied the prohibition to communications initiated by the jurors. This opinion provides the basis for the Court's Order.

HELD: Because states may not impose sanctions on the publication of truthful information contained in official court records open to public inspection, the trial court's order is vacated to the extent that it restrains the media's use of juror identification information that is part of the public record of these proceedings. Media interviews of jurors must not encroach on a defendant's Sixth Amendment right to a fair trial; therefore, the trial court's order barring media contact with jurors is modified to extend its application until the conclusion of defendant's retrial and the return of the verdict and the prohibition applies to contacts that are initiated by the jurors.

1. The restriction on the publication of juror identifications implicates more clearly established First Amendment principles than does the prohibition of juror interviews because the juror identities were disclosed in open court proceedings attended by media representatives. On the other hand, jury deliberations, presumably the primary subject of the media's request to interview jurors, are closed proceedings attended by no one by the deliberating jurors. The United States Supreme Court has acknowledged that media reports of events that transpire in public courtroom proceedings enjoy First Amendment protection. (Pp. 9 to 19 ).

2. Whether a court, to protect a defendant's Sixth Amendment rights on retrial, can prohibit interviews of members of a hung jury that could not reach a verdict in the guilt phase of a capital murder prosecution appears to be an issue of first impression. In general, courts permit post-verdict juror interviews if the juror consents, but those decisions do not encompass criminal cases in which, as in this matter, a hung jury will require an imminent retrial. Moreover, appellate courts have upheld trial court restrictions on juror interviews. Scholarly articles have noted also that the most frequently expressed comments by jurors that participated in post-verdict interviews focused on the evidence that influenced the jury's verdict, and have stated that such interviews can undermine the indivisibility of the jury's function by focusing on individuals' comments or points of view. (Pp. 20 to 35).

3. Here, the names of the jurors were publicly identified throughout the voir dire proceeding. States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection. Therefore, paragraph 13 of the July 18, 2001 Order is vacated to the extent that it restrains the use of juror identification information that is part of the public record of these proceedings. (Pp. 35 to 37).

4. In ordinary circumstances, the confidentiality of jury deliberations does not override the media's First Amendment interest in conducting post-verdict interviews of a consenting juror about that juror's reaction to the case. However, in special circumstances the media's interest may be required to yield to a compelling state interest, provided that any restrictions imposed are narrowly tailored to serve that interest. The inhibiting effect of media interviews of the first jury on the free exchange of ideas by members of the retrial jury is too speculative a basis on which to justify restricting the media's right of access to consenting jurors, nor is the Court concerned that juror interviews would restrict the jury pool on retrial. Rather, the concern is that jurors submitting to media interviews might reveal some insight into the jury's deliberative process that would afford the prosecution a significant advantage at the retrial. Therefore, paragraph 15 of the July 18, 2001 Order is modified to extend its application until the conclusion of defendant's retrial and the return of the verdict and the prohibition applies to communications between the media and the jurors that are initiated by the jurors. (Pp. 37 to 45).

The July 18, 2001 Order of the Law Division is MODIFIED and AFFIRMED in accordance with the Court's Order of April 22, 2002.

JUSTICE LONG, concurring in part and dissenting in part, joined by CHIEF JUSTICE PORITZ , agrees with the majority's conclusion that any restraint on the truthful dissemination of jurors' names, previously made public in pretrial proceedings, is unconstitutional, but is of the view that the ban on media contact with discharged jurors is an unconstitutional prior restraint entered without regard to procedural due process of law, and even if media interviews with jurors would provide the State an unfair advantage on retrial, the order affirmed and expanded by the majority of the Court is unconstitutionally underinclusive and overbroad.

JUSTICES COLEMAN, LaVECCHIA, VERNIERO and ZAZZALI join in JUSTICE STEIN's opinion. JUSTICE LONG filed a separate opinion concurring in part and dissenting in part, in which CHIEF JUSTICE PORITZ joins.

The opinion of the court was delivered by: Stein, J.

Argued March 25, 2002

The issue in this appeal, one of first impression, concerns the power of a court, following a hung jury in a capital murder trial that will result in defendant's imminent retrial for capital murder, to prohibit representatives of the press from attempting to conduct interviews of the jurors after the trial court declared a mistrial.

This issue requires the Court to resolve the apparent tension between interests protected by the First Amendment and by the Sixth Amendment to the United States Constitution. As the United States Supreme Court has emphasized: "Commentary and reporting on the criminal justice system is at the core of First Amendment values, for the operation and integrity of the system is of crucial import to citizens concerned with the administration of government." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 587, 96 S. Ct. 2791, 2816, 49 L. Ed. 2d 683, 714 (1976) (Brennan, J., concurring). Of comparable magnitude, the Sixth Amendment right "to a speedy and public trial, by an impartial jury," U.S. Const. amend. VI, has been characterized as "the most fundamental of all freedoms," Estes v. Texas, 381 U.S. 532, 540, 85 S. Ct. 1628, 1631, 14 L. Ed. 2d 543, 549 (1965), and as "a right essential to the preservation and enjoyment of all other rights, providing a necessary means of safeguarding personal liberties against government oppression," Nebraska Press, supra, 427 U.S. at 586, 96 S. Ct. at 2815, 48 L. Ed. 2d at 713.

We granted the motion of Intervenor Philadelphia Newspapers, Inc. for leave to appeal, R. 2:2-1(a), from an unpublished opinion of the Appellate Division that affirmed interlocutory orders entered by the trial court that prohibited; (1) identification of any juror in any publication and (2) all media representatives from contacting or attempting to interview any juror pending entry of a verdict. By order entered April 22, 2002, this Court, 5-2, vacated paragraph 13 of the Law Division's order of July 18, 2001 (prohibiting identification of jurors) "to the extent that it restrains the use of juror identification information that is part of the public record of these proceedings," and also modified paragraph 15 of that order (prohibiting contact with or attempts to interview jurors) to "extend its application only until conclusion of [defendant's] retrial and the return of the verdict," and applying the prohibition imposed to communications between media and the jurors that are initiated by the jurors.

We now set forth at length the analytical basis for the Court's April 22, 2002 disposition.

I.

Defendant, Fred Neulander, a former rabbi of one of the largest synagogues in southern New Jersey, was indicted by a Camden County grand jury and charged in a three-count indictment with murder, felony murder, and conspiracy in connection with the November 1994 death of his wife Carol. The Camden County Prosecutor filed a notice of aggravating factors and is seeking the death penalty.

Defendant's prosecution and trial have been the subject of intense media attention and widespread coverage, especially in southern New Jersey and the greater Philadelphia area.

With the permission of the trial court, Court TV televised the entire trial.

Jury selection for defendant's trial commenced August 20, 2001. In anticipation of the extensive media coverage of the trial, the trial court on July 10, 2000 sent a written invitation to various representatives of the print and broadcast media, and a wire service, to attend an informal conference with the court on July 18, 2001. (The invitation was widely disseminated, and included eighteen newspapers from New Jersey, Philadelphia, and New York, ten television news stations and five radio stations.) Following that informal conference the trial court issued on the same date its "Order Governing Media Coverage During Trial Proceedings," which imposed the two restrictions now at issue.

Paragraph 13 of the Order provides: "Neither the identity nor descriptions that would reasonably identify any juror may be publicized, in any way, unless authorized by further order of this Court."

Paragraph 15 of the Order provides: "Media representatives shall not contact or attempt to interview any juror or potential juror."

On August 16, 2001, four days before jury selection commenced, Philadelphia Newspapers, Inc. (PNI) and The Associated Press (AP), moved before the trial court to delete paragraph 13, and amend or modify paragraph 15 of the July 18, 2001 Order. The trial court scheduled argument on the motion for August 31, 2001.

When jury selection commenced on August 20, 2001, each juror was asked to complete a fifty-page questionnaire, the content of which was not released either to the public or the media. During the first juror voir dire proceeding the following day, attended by several media representatives, the first four jurors were identified by name, placed under oath, and examined by counsel. Following that day's proceedings PNI filed an emergent motion seeking the court's consent to publication of "news reports that may identify or contain descriptions that may reasonably identify any jurors or potential jurors in this matter who were summoned or examined on August 20 and 21, 2001." The trial court also scheduled that motion for hearing on August 31, 2002. Prior to that hearing, the Appellate Division denied PNI's emergent application for leave to appeal the trial court's refusal to grant immediate relief.

On August 31, 2001, the trial court denied PNI's motion to vacate paragraph 13, but amended paragraph 15 of the July 18, 2001 Order to permit media representatives to request relaxation of the juror no-contact provision "subsequent to the entry of the verdict in this case." The Appellate Division denied PNI's motion for leave to appeal the trial court's disposition.

The trial began in mid-October and jury deliberations commenced November 2, 2001. On November 13, 2001 the trial court, having determined that the jurors were unable to reach a verdict, declared a mistrial and discharged the jury. PNI immediately moved to vacate or relax paragraph 15 of the July 18, 2001 Order to permit interviews of the discharged jurors. The trial court refused to modify either paragraph 13 or 15, and ruled that they "remain in full force and effect, and the news media are prohibited from conducting interviews of any discharged jurors on this case and from publishing the identity or descriptions that would reasonably identify any discharged juror." The court explained:

[T]here might be different considerations were this a jury that was completely discharged and no further proceedings would be held. Clearly that is not the case. I believe that Fred Neulander received a fair trial in this courtroom and he certainly has the right to a fair trial again . . . . [I]f there were to be a relaxation of either of these two provisions it has the capacity to undermine or weaken his right to a fair trial and specifically I find that jurors who are summoned for possible jury service, whether it be in this county or in another county, will know that they run the risk of having their names published and they run the risk of having their private deliberations in the jury room discussed, analyzed, broadcast, or in other ways disseminated and I think that those things do have the capacity to chill the free exchange of ideas in the jury room and will also have the capacity to restrict the jury pool that will be available for this case.

After PNI moved for leave to appeal the trial court's disposition, the court supplemented its oral opinion with a letter to the Appellate Division. The letter stated in part:

At the time of the hearing, I was unaware that despite my Order to the contrary, news organizations had already followed jurors home, knocked on their doors and left letters in their mailboxes.

Some jurors were contacted more than once by the same news organizations, either by repeated telephone calls or repeated visits to the jurors' homes. Some jurors reported that news vans or reporters in cars remained parked outside their homes or other locations waiting for them to emerge.

One juror told me she requested stepped-up police patrols of her home.

Other jurors have reported to me that news organization have repeatedly telephoned their employers. Such contacts have included repeated telephone calls to both the immediate supervisor and to the public information officer as well as the use of e-mail sent to the employers, all of which was in an attempt to contact the jurors.

In addition, one television station broadcast footage of the jurors, including their faces, as they left the courthouse the day the mistrial was declared. . . .

Finally, on November 16, 2001, the Philadelphia Inquirer, a party to this appeal, published the name of the forelady on the jury, in violation of another portion of my July 18, 2001 Order.

The above information is derived from telephone calls I received from six different jurors objecting to the efforts of the news organizations to contact and interview them. Some jurors called me more than once.

In an unpublished opinion, the Appellate Division upheld the restrictions imposed by the trial court, noting that "[t]he record amply supports the judge's essential conclusion that interviews with discharged jurors and publication of their names would pose a clear and present danger to defendant's right to a fair trial." The court observed:

Although appellant asks us to consider separately the prohibitions against identifying jurors and interviewing them, we view the two as interrelated. It is unlikely that media accounts would name discharged jurors without further comment.

The likelihood is that the deliberations of the discharged jurors would be discussed and published. The sanctity of the discharged jury's deliberations is critical to the judiciary's capacity to select a fair and impartial jury on retrial. Jury deliberations are not public. The singular vice of disclosure of prior deliberations is its capacity for destroying the ability of the jury on retrial to deliberate on the issue of guilt or innocence free of extraneous influence. This potential for harm inheres in the subtly coercive effect the media's account of prior deliberations would undoubtedly have on the ability of the jury on retrial to be fair.

We granted PNI's motion for leave to appeal.

II.

A The restriction on the publication of juror identifications implicates more clearly established First Amendment principles than does the prohibition of juror interviews. The obvious distinction is that the juror identities were disclosed in open court proceedings attended by media representatives. In comparison, jury deliberations, presumably the primary subject of the media's request to interview jurors, are a closed proceeding attended by no one but the deliberating jurors.

A leading case addressing the media's right to publish information lawfully obtained in the course of public court proceedings is Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975). The issue in Cox was whether the State of Georgia constitutionally could recognize a father's cause of action for damages for invasion of privacy resulting from publication of the name of his daughter, a deceased rape victim, that was publicly revealed in connection with the prosecution of the crime.

The rape and murder of the victim occurred in August 1971 and six young men were indicted for the crimes. The victim's name was not publicly disclosed prior to trial, probably because of a Georgia statute making it a misdemeanor to publish or broadcast the name or identity of a rape victim. At a court appearance in April 1972, five of the defendants pleaded guilty to rape or attempted rape. On that occasion a reporter for Cox learned the victim's name by examining the indictments that were made available for his inspection in the courtroom. The victim's name then was disclosed in a news report broadcast later that day over the facilities of a television station owned by Cox.

The victim's father sued for damages, claiming that his right of privacy had been invaded by the broadcast. The trial court, relying on the Georgia statute, granted the father's motion for summary judgment on liability and rejected Cox's contention that its publication of the victim's name was protected by the First and Fourteenth Amendments. The Georgia Supreme Court initially held that the cause of action had its roots in the common law and was not based on the statute. It agreed that the constitutional arguments did not compel dismissal of the suit and remanded the matter for trial. On rehearing, that court expressly relied on the Georgia statute as a declaration of State policy that rape victims' identities are not of public concern, sustaining the constitutionality of the statute against a First Amendment challenge.

Reversing, the Supreme Court framed the issue as a "collision between claims of privacy and those of the free press," id. at 491, 95 S. Ct. at 1044, 43 L. Ed. 2d at 347, and emphasized its prior recognition that accurate reports of open judicial proceedings enjoyed a special protected status: 'A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. And we can see no difference though the conduct of the attorneys, of the jury, or even of the judge himself, may have reflected on the court. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.' [Id. at 492-93, 95 S. Ct. at 1045, 43 L. Ed.2d at 348 (quoting Craig v. Harvey, 331 U.S. 367, 374, 67 S. Ct. 1249, 1254, 91 L. Ed. 1546 (1947)).]

Observing that "the interests in privacy fade when the information involved already appears on the public record," the Court, 8-1, concluded that the freedom of the press afforded by the First and Fourteenth Amendments precluded Georgia from ...


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