Merola v. Bell , 68 A.D.2d 24 ( 1979 )

OPINION OF THE COURT

Sullivan, J.

On September 19, 1978, John Hernandez was shot and killed on a subway platform in The Bronx, after he had been followed off a train by three youths who were haranguing him and demanding money. Three hours later defendant, Robert Davis, 13 years of age, was picked up by the police as a suspected runaway. During questioning he told a confused story about being a witness to a shooting. He was released to his mother’s custody, but was rearrested three days later, arraigned for the murder of Hernandez, and remanded without bail. On October 31, 1978, he was indicted on two counts of murder in the second degree. Bail was eventually set at $5,000 and later raised to $15,000. Unable to make bail, defendant remains incarcerated.

Notwithstanding a newspaper strike in New York City, defendant’s initial court appearances received extensive coverage on television and radio, and in the nonstriking newspapers. It was reported that he was the first juvenile to be charged with murder under the State’s "tough new juvenile crime law” and the youngest person ever so to be charged in the State of New York. This coverage continued with his subsequent arraignment on the indictment. One of the newspaper articles carried the headline "He’s a killer! Widow in court outburst!”

A hearing was scheduled for March 19, 1979, on the admissibility of statements allegedly made by defendant to various police officers and Assistant District Attorneys. Although defendant originally spoke of being a witness to a murder, he apparently eventually implicated himself as an accomplice in the killing. Among those present in the courtroom on March 19 were reporters from Associated Press, United Press International (UPI), the New York Post and WPIX (Channel 11). Justifiably apprehensive of the prejudicial effect that widespread publicity would have on any potential jurors, especially in the light of the extensive publicity the case had generated in its earlier stages, defendant moved to bar the public and the press from the courtroom during the hearing. Trial Term denied the request and adjourned the hearing to the next day.

That evening various television and radio stations broadcast stories about a new crackdown by the Mayor of the City of New York on crime in the subways. Interspersed with these accounts were reports of defendant’s trial. The next morning, prior to the commencement of the hearing, the Trial Justice advised counsel that he had viewed a telecast the evening before about the efforts to increase police protection on the subways, which concluded with the comment, "Too bad they didn’t have that back in September when Davis allegedly participated in the killing of John Hernandez.” The comment was followed by a showing of a wedding picture of the deceased Hernandez and his wife. The Trial Justice also stated that he had heard a radio report that morning that pretrial hearings were being conducted in the Davis trial, and that the People would seek to introduce a videotaped statement by defendant in which he admitted to the killing of Hernandez. At about the same time that the Trial Justice was voicing these concerns the morning edition of that day’s New York Post, carrying a story headlined "Videotape is Key in Teenager Trial”, under an artist’s sketch of defendant with his mother in the courtroom, was already on the newsstands.

Significantly, in attendance at the courtroom that morning were reporters from the Daily News, the Post, NBC, CBS, and UPI. Thus, before a single word of testimony had been taken, and when only a pretrial hearing on a suppression issue was pending, the media were already flocking to the courtroom and the case itself was generating considerable publicity.

In the wake of this sudden burst of renewed publicity which had emerged overnight, the Trial Justice advised the parties that he would reconsider the application for closure, noting that the first he had heard of the videotaped confession was on the morning radio report. An opportunity to argue in opposition was given not only to the People, who had opposed the motion the day before, but also to the press, which, after a recess for the purpose of contacting counsel, had an attorney present to present its position.

Following argument, the Trial Justice ordered that the press and the public, except for the immediate members of the family of defendant and the victim, be excluded from the courtroom during the suppression hearing, but offered to make available daily copy of a transcript of the proceedings, redacted to omit any statements attributed to defendant. He also granted a stay pending review by this court of his order.

At the outset, it ought to be recognized that this is not the ordinary, garden-variety street crime, as the dissent seems to suggest. The case has attracted widespread publicity. Defendant is the first 13-year-old to be prosecuted as an adult under the recently enacted amendments to the Penal Law dealing with juvenile crime. Moreover, he is charged with complicity in the vicious murder of a subway passenger on his way home from work. Because of its hybrid nature as a legal novelty and media sensation, the case is of great interest. In addition, at the time the hearing was to commence, public officials in the City of New York were engaged in a well-publicized campaign against crime in the subways, after the occurrence of a series of violent crimes. Obviously, this served to focus more attention on the prosecution of defendant.

The right to a public trial is not absolute and "must be balanced against other interests which might justify the closing of the courtroom to the public.” (United States ex rel. Lloyd v Vincent, 520 F2d 1272, 1274.) Consequently, closure of a courtroom has been permitted even over the wishes of a defendant. "The public trial concept has * * * never been viewed as imposing a rigid, inflexible straitjacket on the courts. It has uniformly been held to be subject to the inherent power of the court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice.” (People v Jelke, 308 NY 56, 63, citations omitted.) Here, it is defendant who has made the motion to close the courtroom for what is, undeniably, a legitimate interest, the protection of his right to a fair trial. Like the accused in Matter of Gannett Co. v De Pasquale (43 NY2d 370, 378), he has asked the court "to ensure that further pretrial publicity would not impermissibly alter [his] status in the public eye from that of a suspected killer to that of a confessed murderer.”

At this stage of the criminal prosecution defendant’s reasons for keeping any confession or statement from public knowledge are twofold. He seeks to prevent disclosure to potential jurors of the contents of any tainted confession which he is successful in suppressing.^* Clearly, "[suppressed evidence should not be used to determine a defendant’s guilt, not at trial and certainly not before trial through publication of illegally obtained evidence by the media”. (Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 379, supra.)

The closure here is a limited one. As soon as a jury is impaneled and, if necessary, sequestered, or the circumstances are such that the probability of a suppressed confession prejudicing defendant no longer exists, the press will be able to publish whatever it chooses about the suppression hearing. On the other hand, permitting courtroom access to the media, with its capacity to disseminate the details of defendant’s confession to every prospective juror in Bronx County, whatever its population, creates a reasonable probability of prejudice which would threaten the impaneling of a constitutionally impartial jury. (See Matter of Gannett Co. v De Pasquale, 43 NY2d 370, 380, supra.)

Even should none of the statements be suppressed, defendant has an interest in keeping from prospective jurors the fact that a Judge has already found his statements voluntary and constitutionally sanctioned as evidence. This is a material and realistic concern.

The dissent perceives the risk of prejudice as minimal, when balanced against the public’s right to know "how the new juvenile offender statutes are working in practice, including the applicability of suppression issues to cases where the defendant is 13 years old.” It is difficult to appreciate how a temporary delay in reporting the details of a confession denies that right. In any event, at the fulcrum of any balancing of these competing interests should be the recognition that there are, or will be, innumerable trials to avail the public of its right to know. On the other hand, defendant, whose liberty is at stake, has only one trial.

The dissent seeks to distinguish Gannett by pointing out that the victim there was a public official and locally prominent, whereas the crime involved here is not uncommon in Bronx County. Although, unfortunately, murder is not that rare an occurrence in Bronx County, it is equally true that the increasing incidence of violent crimes has made its residents acutely crime conscious and concerned for their personal safety. This is no doubt true of all large urban centers. This concern is reflected in the Legislature’s recent amendment of the Penal Law to provide for adult treatment of juveniles such as defendant, along with the public outcry for increased police protection and stricter punishment, including the death penalty. Daily, the focus of the media is on violent crime and its effects, e.g., desolated streets, deteriorating neighborhoods, unsafe subways, and frightened citizens. The public is concerned with violent crime because it is affected by it, and, hence, the report of a 13-year-old boy armed with a gun on a subway would command a significant amount of individual attention. With morning and afternoon newspapers, around-the-clock radio, and at least seven major television stations, it is highly unlikely that the details of a confession to what was apparently a cold-blooded and vicious crime will escape the attention of most potential jurors in Bronx County, an area which has been battered by the trauma of violent crime. And the danger to defendant’s right to a fair trial can all be avoided by withholding the details of any confession until such time as the danger that the verdict may be affected by their premature publication has passed. The precedent exists. The Court of Appeals in Gannett (supra) expressly sanctioned closure as a discretionary power in the hands of a Trial Judge so that he might fulfill his affirmative obligation to insure a proper balance between a defendant’s right to a fair trial and the public’s right to an open forum. And, in Nebraska Press Assn, v Stuart (427 US 539, 568) the United States Supreme Court intimated that closure was a respectable alternative: "The County Court could not know that closure of the preliminary hearing was an alternative open to it until the Nebraska Supreme Court so construed state law; but once a public hearing had been held, what transpired there could not be subject to prior restraint.” (Emphasis added.)

In this regard the Gannett court fixed the judicial responsibility: "To allow public disclosure of potentially tainted evidence, which the trial court has the constitutional obligation to exclude, is to involve the court itself in the illegality. This potential taint of its own process can neither be condoned nor countenanced. To avoid becoming a link in the chain of prejudicial disclosures, trial courts have the power to exclude the public from pretrial suppression hearings [citation omitted]. At the point where press commentary on those hearings would threaten the impaneling of a constitutionally impartial jury in the county of venue, pretrial evidentiary hearings in this State are presumptively to be closed to the public.” (Gannett, supra, p 380.)

At this point we can only speculate as to how much publicity the case will attract. But one fact seems eminently clear. The level of publicity which the dissent would require before the remedy of closure is invoked is precisely the danger that defendant is trying to avoid. And it is small succor to him to suggest an adjournment between hearing and trial to allow the residual effect of any adverse publicity to abate. Defendant has been incarcerated since last September and he has a constitutional right to a speedy trial.

Closure has one other benefit. In the event of a conviction it obviates the necessity of a retrial, mandated because the adverse effects of publicity, which could have been avoided, resulted in the denial of a fair trial.

Finally, as commendable as is the dissent’s concern that approval of this order would set a precedent for closure in a significant number of cases where there is only minimal publicity, it fails to take into account the discernment and sensitivity of our Trial Judges. The concept of a public trial is fundamental to our system. Closure is a drastic remedy, reluctantly invoked in any case, but necessary in those cases where the right to a fair trial, equally fundamental, is jeopardized.

Accordingly, inasmuch as Trial Term properly exercised its discretion, the application for an order in the nature of prohibition, pursuant to CPLR article 78, should be denied and the petitions dismissed, without costs or disbursements.

* Since, apparently, the People’s case consists chiefly of defendant’s admissions, the importance of keeping them from publication cannot be overstated.