People v. Jelke

Callahan, J.

(dissenting). Defendant, after trial before the court and a jury at General Sessions, has been convicted on two counts of compulsory prostitution involving two different women.

The entire court appears to he in agreement that the evidence was ample to sustain the verdict pronounced by the jury. Nevertheless, the majority is about to reverse the judgment for alleged errors, particularly the failure to afford a public trial to the defendant. ■

The prevailing opinion discusses at length two inquiries made of jurors Numbers 5 and 11 concerning their qualifications. While it terms the procedure followed serious error ”, it does not base reversal on that ground alone, but rather on the steps taken to exclude the public from the courtroom during the People’s case. "Under the circumstances, we think that there is nothing to he gained by extended discussion of the incidents connected with the questioning of the jurors. We deem it sufficient to say that we find the trial court acted within its powers and exercised its discretion so as to protect the rights of the defendant. We find no error, reversible or otherwise, in what occurred in connection with these two incidents (see People v. O’Keefe, 281 App. Div. 409, 412, affd. 306 N. Y. 619). Experienced trial counsel did not move for a mistrial after the conclusion of these inquiries, nor did defendant at any time object to proceeding with the selected jury after the inquiries "took place.

Accordingly, we pass to the question of error assigned as ground for reversal and based on the alleged deprivation of the right to a public trial. We disagree squarely with any finding that there was not a " public ’ ’ trial in this case as that term is used in the relevant statutes. We view with great concern the decision about to be made, and regard it as dealing a serious blow to the power of a court in the proper conduct of trials and judicial proceedings. We think that it runs counter to the public policy as expressed in the statutes of this State for almost a century. The ruling means that a trial court faced with the fact that obscene and salacious testimony will he disclosed upon a trial is powerless to prevent the courtroom from becoming a source of supply of filthy news ” to be broadcast indiscrimi*233nately by the press, or others in attendance, who may wish to spread the same. We are firm in onr belief that under the existing law courts of justice need not and should not be such compulsory sources of supply.

Upon the present trial, after the opening of counsel to the jury, the presiding Judge stated his belief that the testimony would be steeped in filth, and that the indiscriminate release of the obscene and sordid details might be a disservice to youthful members of the community. Accordingly, in the interests of good morals and public decency, the court decided to exclude the general public and the press from the courtroom for the duration of the People’s case. The court stated that it recognized the necessity for a public trial and granted the right to the defendant to have present in the courtroom any reasonable number of his friends and relatives as he might deem necessary, who would not violate the spirit of the ruling against the undesirable publicity. This ruling was enforced over defendant’s objection.

There were present in the courtroom, however, during the People’s case, in addition to the jury, counsel for defendant and the People, the court personnel, including stenographers, and as many as seventeen different members of the public, all friends of the defendant and selected by him or his lawyer. Sometimes as many as twelve, sometimes less, but always at least one of these persons was in attendance at the various sessions of court throughout the trial, including the People’s case.

During the course of the trial, several newspapers and press associations commenced litigation to compel the trial court to admit them to the trial for the purpose of reporting its details in the press. They moved for an order in the nature of a writ of prohibition against the enforcement by the trial court of its direction for their exclusion. The motion for this writ was denied by Special Term of the Supreme Court, and that order was affirmed by this court (Matter of United Press Assns. v. Vatente, 281 App. Div. 395). Our decision in that case was based principally on the ground that the petitioning newspapers had no legal standing to bring such a proceeding. We expressly held that the merits of the question as to whether there was a deprivation of the right to a public trial or any error prejudicial to defendant would have to await decision upon an appeal by defendant.

Passages in the majority opinion of this court in the United Press action are sought to be interpreted as indicating that we *234believed that error would be found on defendant’s appeal because of the exclusion referred to. Examination of the opinion, however, will show that such construction is unwarranted. Any reference to prejudice arising from the absence of a public trial was clearly confined to a case where, in fact, there had been denial of a public trial. There was no indication of a finding that such result had occurred in the Jelke trial. Upon the complete trial record we now vote to hold that the proof does not disclose the absence of a public trial as that term is used in the Federal Constitution or the statutes of this State.

There is an express provision in the Sixth Amendment of the Federal Constitution that the accused in a criminal prosecution is entitled to a speedy and a " public ” trial. The Fourteenth Amendment provides that no State shall deprive a person of life, liberty or property without due process of law.

The Sixth Amendment to the Federal Constitution, as the United States Supreme Court has expressly held, " does not apply to the trial of criminal prosecutions by a State ” (Gaines v. Washington, 277 U. S. 81, 85). It applies to trials in United States courts alone and is not a restriction on the powers of State governments (Matter of Sawyer, 124 U. S. 200, 219; Spies v. Illinois, 123 U. S. 131, 166). We agree, however, that the protective cloak of the Fourteenth Amendment might cover a case where a criminal trial in a State court is entirely " secret ” and in camera as distinguished from " public ”. Lack of due process could be found in such circumstances (Matter of Oliver, 333 U. S. 257). But, as the majority of this court appear to recognize, the kind of trial that merits the label of " secret ” and violative of the constitutional requirement of due process is not one like the present, where defendant was represented by counsel of his selection before a court and jury, the proceedings duly recorded, and defendant afforded the right of calling witnesses and of spectator attendance to the extent that he might choose or select from his friends and acquaintances. A reading of the opinion in the Oliver case (supra) will demonstrate the difference between the trial involved here and the kind of star-chamber, one-man summary inquisition, without the right to counsel or witnesses, that was condemned there as lacking in due process. A footnote at page 272 of the opinion in the Oliver case indicates that the Supreme Court considered trials precisely like the present where there was exclusion of the public to a limited extent, i.e., where only selected friends of the defendant were admitted, and did not indicate that such procedure *235would deprive a defendant of a “ public ” trial. The footnote cited People v. Hall (51 App. Div. 57) where the exclusion was identical with that in the present case.

The highest courts of other States have held that due process is not violated merely because some of the public is excluded (Commonwealth v. Blondin, 324 Mass. 564; Moore v. State, 151 Ga. 648).

The requirements for a ‘ public ’ ’ trial in this State are found in three separate statutes. The Code of Criminal Procedure (§ 8) and the Civil Eights Law (§ 12) provide for speedy and public trials in criminal eases. In addition, section 4 of the New York Judiciary Law provides: “ | 4. Sittings of court to be public. The sittings of every court within this state shall be public, and every citizen may freely attend the same, except that in all proceedings and trial in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, sodomy, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court.” These statutes are in pari materia and must be read together (Matter of United Press Assns. v. Valente, 281 App. Div. 395, supra). Assuming that any of these sections were intended to furnish in State trials protection equivalent to that afforded by the Sixth Amendment in Federal trials, there can be no doubt that in New York such protection was to include an exception to the extent provided in section 4 of the Judiciary Law.

It will be noted that the exceptions in section 4 permit the exclusion of those not directly interested in all proceedings and trials in cases for divorce, seduction, abortion, rape, sodomy, etc. This, on its face, would be broad enough to permit exclusion of all spectators and the press, at least to the extent necessary to protect the public morals by preventing the broadcasting of sordid details. In the instant case there was exclusion of the press and limitation in the number of spectators. But, says defendant, the present trial was not a case of the kind expressly specified in section 4, as it was a prosecution for compulsory prostitution. We construe the section more broadly. We agree with the construction placed on it in People v. Hall (51 App. Div. 57, supra), where the court said (p. 63): “It will be observed that the cases enumerated are those in which the testimony is apt to be too indecent for the public to hear. # * * The object of these exceptions was in the interest of public morals, and the intent probably was to include all cases in which testi*236mony of an obscene character was likely to be given. Careful as our lawmakers have always been of the rights of the defendant, by this section the court is expressly vested with the authority to exclude people generally from the trial. The present case is within the spirit of this statute. The reason that warrants the exclusion of the prying curiosity seekers in an action for divorce exists in this action.”

We think that any construction of the section so as to make it inapplicable to a case of compulsory prostitution involving incidents of sodomy, sex perversion and commercialized vice would defeat the very object of the law. To exclude the public from a trial of one of the specifically enumerated classes, where the testimony might be comparatively harmless, and permit the dissemination of the evidence in a case of compulsory prostitution, with the obscene and sordid details found here, would be elevating form over substance ánd ignoring the spirit, purpose and intent of the law. An action to annul a marriage might involve details far more invidious to publish than an action for divorce. Clearly, the Legislature intended that it was to be the nature of the testimony, and not the nature of the charge involved, that would invoke the exclusion of the public.

Section 4 of the Judiciary Law was amended at the suggestion of the Judicial Council in 1945 to include sodomy ” among the cases in which the public could be excluded. The Judicial Council reported that this amendment was intended to meet the dictum in People v. Hall (supra). The crime charged in the Hall case was extortion, but the exclusion of the public was based on obscene testimony relating to alleged sodomy. It is thus apparent that the Judicial Council considered that it was the nature of the testimony, and not the nature of the charge, that controlled the exclusion of the public.

In our opinion the Federal decisions as to what constitutes a public trial are not helpful to a resolution of this appeal. Proceedings in those courts are controlled by the Sixth Amendment, which has been enforced quite strictly in many instances. Congress has never adopted a statute similar to section 4 of the Judiciary Law. New York, on the other hand, has no provision in its Constitution requiring a public trial. Its Legislature has the power, therefore, to prescribe any exception with respect thereto not violative of due process. The Legislature of New York, exercising this power, adopted section 4 of the Judiciary Law. New York courts are required to give due consideration to the fact that the requirements for a public trial are found in *237a statute granting power to a presiding judge to exclude those members of the public not directly interested in cases of a nature likely to involve obscene and salacious testimony.

New York, thus, recognizes that the protection of a public trial afforded the individual is coupled with a provision for the protection of the morals of the public at large in cases of a nature likely to produce evidence of obscenity. The requirement for a public trial will not be deemed infringed, therefore, when the protection of public morals is being reasonably exercised. There would seem to be no inconsistency in the two provisions, nor any interference with the rights of an individual defendant to a public trial, at least, where the presiding judge permits him to have in attendance such persons as he may select, who will honor the condition of preventing dissemination of obscene details.

It is widely recognized that the public generally may he excluded from trials involving testimony of a salacious nature without infringing the constitutional requirements of a public trial. In an article (49 Col. L. Rev. 114) on “ The Accused’s Right to a Public Trial ”, it was said: “ In general, the cases in these jurisdictions indicate that the guarantee of public trial presents no serious obstacle to the exclusionary power of the trial judge, so long as he is motivated by the obscene character of the trial, and so long as the presence of someone other than the participants in the trial is permitted. In many of these states statutes expressly provide the judges with discretionary power to bar spectators from salacious cases and these enactments have not been deemed to conflict with the constitutional guarantee.”

New York has adhered to this view for generations. For more than seventy-five years section 4 of the Judiciary Law has been on the statute hooks substantially in its present form.

In People v. Hall (supra) the court declared (p. 61): That the protection of a public trial must be given to every defendant charged with a crime is obvious. No court in this nation has ever held otherwise, so far as I am able to ascertain. That principle must he upheld unimpaired, hut its retention does not entirely wrest from the trial judge the discretion to conduct the trial in such wise as to he consonant with good morals and common decency and in an orderly manner.”

Suggestion is made by appellant that the authority of the Hall case was weakened by a later decision of the Court of Appeals in People v. Miller (257 N. Y. 54, 60). In the Miller case a defend*238ant was charged with murder. The exclusion of some of the public was based on the Trial Judge’s belief that such exclusion would afford better sanitary conditions in the courtroom for the protection of jurors and others whose duty required their attendance. There was no question of salacious evidence being presented, and thus the general rule, and not the exception in section 4 of the Judiciary Law, was involved. The right to claim lack of a public trial was held to have been waived in that case, and the decision in no wise limits the authority of People v. Hall (supra).

It is also suggested that the Trial Judge erred in closing the doors during the taking of the People’s testimony while opening them on presentation of the defendant’s case. Defendant says that this procedure afforded an unfair advantage to the People. We fail to see the force of this contention. If, as his counsel then urged, defendant wished the trial to be public, he lost nothing by having it so conducted during his own case. Instead, he gained part of what he sought, and he made no objection, except to the original ruling. The trial court may well have believed that the testimony offered by defendant would be less offensive to the public. It did appear that the most obscene testimony was that elicited on the cross-examination of the prosecutor’s witnesses, when counsel for defendant went into great detail in attempting to show that the girls involved, though young in years, were deep in the experience of moral degradation. It would seem, therefore, there was no error in lessening the rigor of the restrictions.

What we have said so far relates to the power of the court to proceed as it did. That power involves the exercise of discretion. There remains the question whether that discretion was properly exercised.

The proceedings had in public between February 2d, when the first juror was picked, and February 6th, when the doors were closed, gave promise of a panorama of prostitutes, procurers and perversion. There were to be details as to sordid relations between a young man of good family and girls he was charged with schooling to be prostitutes. There would be proof that he was consorting with husbands living off the proceeds of their wives’ shame. Methods pursued in obtaining male customers for the fallen women, and advice as to how they could best extract the price to be paid for their favors, was to be the principal subject of discussion. Cross-examination promised to descend into detailed interrogation as to the *239extent of the prior sex experiences of the women and the perversions they had practiced.

It was in the light of this state of facts, and the lurid newspaper accounts thereof, that the trial court decided in the interest of good morals and common decency to draw the shade on the proceedings in such manner, however, as to preserve the elements of a public trial. Whether the performance actually lived up to advanced billing in sections of the public press is not the question. At least, there was much in the testimony that would better be kept from being broadcast to all the public, including young and immature persons.

And how was the press then handling the case? That some of the papers were not attempting to exercise any restraint was proclaimed by counsel. Indeed, he asked the court to take judicial notice that it was first page headline news everywhere.” He added that the publicity was such that the face of one of the young prostitutes had been made known to every man and woman in the city. Eesort to the files of some of the newspapers will show conclusively that this was no overstatement. By bold headlines and subjoined articles there was the widest public exposition of the details of depravity. That the trial adequately might be reported without offense to public decency was demonstrated in the coverage afforded by one metropolitan journal that was the exception rather than the rule.

We do not wish to appear to dictate what should be the proper sense of journalistic values and self-control by the press in reporting crimes of sex and obscenity. The law does not impose such responsibility upon us. We are charged, however, with enforcing a law, the whole object of which is to prevent court sessions from becoming polluted wellsprings from which most obscene material offensive to public decency and morals will flow without any restriction (Judiciary Law, § 4).

The majority is holding, in effect, that when a trial court, in its judicial discretion, decides to regulate its business under such a law so as to safeguard the common good by curbing prurient and morbid curiosity aroused through the publicity given to a trial of the exceptional nature of this case, it commits reversible error and deprives the defendant of his individual rights. From now on, under the majority rule, a courtroom must be the source of supply for this prurient stream whether the judge is convinced that it is his duty, in the exercise of sound judicial discretion, to avoid this result or not. We think that the public policy of this State should be and is otherwise. *240On all the facts disclosed, we vote to hold, in the discretion of this court, that the learned judge at G-eneral Sessions exercised a reasonable and sound judicial discretion.

A trial involving charges of the present nature must deal with the most sordid details of human lives that may fall lower than the bestial. However, there is no reason in law or morals why the court should be the source of supply of these degraded and degrading obscenities for consumption by the public, including the very young and immature. It is a strange and paradoxical ruling that while the young and immature may be refused admittance at the door of the courtroom, the court is powerless to protect them against news broadcasts of the trial obscenities into every home, and is also powerless to protect public morals generally.

Leading text writers on the law have always recognized the power of a court to check the dissemination of testimony of salacious and obscene acts emanating from its own session.

Wigmore states that one of the ordinary grounds for exclusion of the public from the courtroom is to avoid the moral harm of satisfying pruriency in trials of certain crimes ”. That most eminent writer, after pointing out that no tangible and positive advantage is gained by a party in a given case by publicity or lost by privacy, states that the requirement for a public trial is not absolute or invariable, and cites numerous cases where under a variety of statutes — and in the absence of statute — in trials involving crimes of rape and the like, the power of exclusion was applied in varying degrees (6 Wigmore on Evidence [3d ed., 1946], § 1835, p. 338). Bowers, in his work on Judicial Discretion of Trial Courts (p. 297), labels the power of exclusion under such circumstances as a necessary aid in protecting public morals, and cites many cases in numerous jurisdictions supporting such power.

Concededly, in the reported cases it is rarely that the press is excluded. We would prefer that it would never be necessary to do so in this jurisdiction. But on the particular facts before us, we are merely deciding whether it was error to do so in this case. Cases suggesting that it might be improper to exclude the press involved situations where there was no statute comparable with section 4 of our Judiciary Law. For us the public policy has been expressly declared by the Legislature to the effect that there may be an order of exclusion, including the press, where the testimony is likely to relate to obscene and salacious sex crimes. Unless this statute is unconstitutional, *241it was the duty of the Trial Judge to enforce it in accordance with the dictates of his conscience and his understanding of the law and the facts. It is our duty to uphold the Trial Judge, unless he is in error. It is for us to review the discretion exercised by the trial court, but in doing so we must be guided by the language of the statute and the facts concerning the nature of the testimony likely to be adduced in the course of the trial.

We have discussed the case solely from the viewpoint of the statutory provisions affecting the question without regard to the inherent power of a court to close its doors in certain circumstances. We refer to our earlier decision (281 App. Div. 395) on this phase of the problem.

The majority opinion would seem to indicate that the provisions of section 8 of the Code of Criminal Procedure and section 12 of the Civil Eights Law in requiring a public trial should have some over-riding effect, for it suggests that other statutes are to be construed against ” the above sections. It says that these sections requiring a public trial are only to a limited extent in pari materia. That the Legislature has never understood the first two sections mentioned as limiting its powers is apparent. It has, subsequent to their enactment, passed such statutes as section 45 of the Children’s Court Act providing for privacy in cases of juvenile delinquency, and made like provision in cases of youthful offenders (Code Crim. Pro., § 913-k).

There was ample evidence to support the conviction of defendant, including lists in his own handwriting of the names and telephone numbers of men referred to the prostitutes by him. In fact, defendant’s guilt was established by such overwhelming evidence that no rational expectation can be entertained that on any retrial the result would be different. It appears that the majority concurs with this view of the case. To direct a retrial of a case of this kind, on the ground that defendant was deprived of a fair trial by the inquiries made of the jurors or by excluding the press is, in our opinion, most unrealistic and unnecessary.

We agree that it was no part of the. Trial Judge’s work to censor news. But it was the Judge’s sworn duty to see that section 4 of the Judiciary Law was obeyed. We construe that section to mean that a judge must decide when the evidence in the case will relate to occurrences of the nature listed in the section, and in such cases he may confine attendance to those interested in the case. The statements in the majority *242opinion suggesting that some statute or constitutional amendment is needed, if the Judge is to perform such function as to exclude the press in a case like the present, is an attempt to distort and read out of existence section 4 of the Judiciary Law, which has been the law for seventy-five years and sets forth the settled public policy of this State.

The public order and decency generally prevailing in the city of New York, where the instant trial was conducted, exists not because of the relatively small number of law enforcement officers and judges charged with the responsibility of maintaining the peace and safety of the community, but is principally the result of the invisible, but real, adherence of the overwhelming majority of the people to the traditional concepts of morality, decency, law and order. Without such adherence there would be chaos. Unquestionably, it is this true sense of right, honor and virtue as well as a decent respect for public opinion that stands in the way of disorder and licentiousness. If this source of law and order is to be corrupted from the courtroom, every judge, so compelled to “ blow the horrid deed in every eye ”, is placed on the side of obscenity and vice. This was neither the philosophy nor the intent behind section 4 of the Judiciary Law, which will be rendered practically a dead letter under the majority decision of this court.

The judgment appealed from should be affirmed.

Breitel and Botein, JJ., concur with Bastow, J.; Callahan, J., dissents and votes to affirm in opinion, in which Dore, J. P., concurs.

Judgment reversed and a new trial ordered.