State v. Williams

SCHREIBER, J.,

dissenting.

The responsibility for safeguarding the right to a fair trial lies at the heart of the question before this Court. This responsibility is never more important than when, as here, the defendants face the possibility of a sentence of death. It is in part the sensitivity to the extreme nature of that sanction that leads me to dissent. The majority today promulgates the following test to be applied by trial courts on motions for closure: the trial court, after “meticulous and conscientious ” consideration, must be “clearly satisfied” “by a preponderance of the evidence” that there is a “realistic likelihood ... that a defendant will be unable to secure a fair trial before an impartial jury if the pretrial proceeding is conducted in open court.” (emphasis added). It is also my dissatisfaction with the confusing nature of the posited standard that leads me to dissent.

The specific issue in these cases is whether a pretrial hearing, either to establish probable cause or set bail, should, at the instance of the defendants, be closed to the press. The resolution of the issue requires a balancing of the federal constitution*75al rights of the accused and the press, for it is the inherent conflict between these interests that gives rise to the problem at hand.

The Sixth Amendment guarantees the defendant a right to a trial “by an impartial jury.” Justice Stewart in Gannett Co. v. DePasquale, 443 U.S. 368, 379, 99 S.Ct. 2898, 2905, 61 L.Ed.2d 608, 621 (1979), wrote for a majority of the Supreme Court:

Closure of pretrial proceedings is often one of the most effective methods that a trial judge can employ to attempt to insure that the fairness of a trial will not be jeopardized by the dissemination of [prejudicial] information throughout the community before the trial itself has even begun.[1]

The First Amendment has been interpreted to afford the public and the press the right to be present at criminal trials. Globe Newspaper Co. v. Superior Court,-U.S.-, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). This right insures a significant public role in the judicial process. Thus open proceedings safeguard the integrity of the fact-finding process, assure the appearance of fairness, and serve as a check on judicial administration.

First and Sixth Amendment guarantees are at times at odds with each other.2 Supreme Court opinions throw some light on the proper balancing of those respective rights. Globe Newspaper involved a Massachusetts statute that provided for a closed hearing automatically when a rape victim, who was a minor, testified. The Supreme Court declared the statute unconstitutional. It pronounced the press’ First Amendment right to be present during the trial proceedings and held that the statutory automatic closure provision violated the press’ First Amendment *76right. In doing so, it emphasized that its holding was a narrow one, that the First Amendment right was not an absolute, and that a statute properly framed could withstand constitutional attack. The reason for closure in Globe Newspaper was not to insure a fair trial. When the defendant in a criminal proceeding seeks closure, he relies upon his federal constitutional right to a fair trial, which is more compelling than a state statutory policy.

The Supreme Court has indicated guidelines for the proper balancing of these First and Sixth Amendment rights in Gannett Co. v. DePasquale. Justice Stewart, in writing for the Court, accepts the test that a defendant, on moving for closure, should show a reasonable probability of prejudice. 443 U.S. at 393, 99 S.Ct. at 2912, 61 L.Ed.2d at 629.3 In addition, as Justice Powell asserts in his concurring opinion, those who object to closure should have “the responsibility of showing to the court’s satisfaction that alternative procedures are available that would eliminate the dangers shown by the defendant and the State.” Id. at 401, 99 S.Ct. at 2916, 61 L.Ed.2d at 635. (Powell, J., concurring).

By according priority to the First Amendment, the majority of this Court has placed the First and Sixth Amendments in a different perspective from that adopted by the United States Supreme Court. The majority of this Court declares that all pretrial criminal proceedings must be open to the public, unless there is a “realistic likelihood” that the defendant will be unable to obtain a fair trial. The majority rejects the Gannett standard without explanation and adopts a new test without elucidation. Implicitly, it assumes that the Gannett test is not compatible with our State Constitution. How and why remain unknown. Moreover, the majority insists that the defendant *77“clearly” show a “realistic likelihood” that he will be unable to obtain an impartial jury as a result of adverse publicity. Ante at 48, 63-64. By introducing this requirement, the majority has increased the burden on the defendant beyond that approved by the majority in Gannett.

The majority in a footnote, ante at 69 n. 17 contends that, while the trial court must be clearly satisfied that the burden is met, the defendant’s burden of proof is only a preponderance of the evidence. The addition of the word “clearly” when related to what the fact finder must do is not a semantic change, and the majority intends that its use of the word have a substantial effect. The word “clearly” charges a fact finder with the obligation to be more than satisfied that the greater weight of credible evidence supports a specific factual finding. The correlative of the nature or weight of the evidence is the effect of that proof on the mind of the judge or jury. Realistically, to say that one must be clearly satisfied that a fact has been proven by a preponderance of the evidence is simply another way of saying that the evidence must clearly and convincingly produce a firm belief in the existence of the fact. Similarly, to say that one must be satisfied beyond a reasonable doubt that a fact has been proven by a fair preponderance of the evidence is simply another way of saying that the evidence must produce a belief in the fact beyond a reasonable doubt. The distinction between a finding supported by a preponderance of the evidence and a finding supported by clear and convincing evidence becomes a distinction without a difference if in either case the trier of fact must be clearly and convincingly satisfied of the existence of the fact. Pragmatically, a court will reach the same result in both cases.

By requiring the trial court as a fact finder to be clearly satisfied, the majority has added to the defendant’s burden. The use of the word “clearly” places the standard, if anywhere, within the burden of proof category of clear and convincing. *78The majority implicitly concedes as much when it states that the reason for the additional requirement is to ensure substantial priority of the press’ First Amendment rights over a defendant’s Sixth Amendment right to a fair trial, that is, “a proper accommodation of the competing concerns.” Ante at 70 n. 17. No other justification is asserted for inserting the word “clearly” when referring to the trial court’s duty.

The difference in the additional burden is apparently substantial. We have generally applied three different standards of proof: preponderance, clear and convincing, and beyond a reasonable doubt. Evid.R. 1(4). Our courts have stated that the differences between these classifications are not semantic.

Clear and convincing evidence should produce in the mind of the trier of fact “a firm belief or conviction as to the truth of the allegations sought to be established.” Aiello v. Knoll Golf Club, 64 N.J.Super. 156, 162 (App.Div.1960); see also In re Boardwalk Regency Casino License Application, 180 N.J.Super. 324, 339 (App.Div.1981), aff’d except as modified, 90 N.J. 361 (1982). In Aiello the court, in defining the phrase, “clear and convincing,” quoted the following language from Tapler v. Frey, 184 Pa.Super. 239, 132 A.2d 890, 893 (1957): “[The evidence must be] so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” “Clear and convincing” is said to establish a standard of proof falling somewhere between the other two categories. It has also been said to be more closely akin to proof beyond a reasonable doubt. See State v. Cale, 19 N.J.Super. 397, 400 (App.Div.1952).

Preponderance of evidence on the .other hand is evidence sufficient to generate a belief that the conclusion advanced is likely. It has been stated in terms of reasonable probability. See Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595, 607 (1958); see also In re Polk License Revocation, 90 N.J. 550 (1982) (noting *79difference between the preponderance and the clear and convincing standards.)

In addition to imposing the more onerous burden of proof on the defendant by using the “clearly” standard, the majority may have thrust on the defendant the requirement that he negate the adequacy of alternatives. Proof of the efficacy of alternatives logically and reasonably belongs on the objecting member of the public or press.4 At this juncture of the analysis, after the defendant has shown that his fair and impartial trial is imperiled, closure is presumptively valid. The party who objects should then be required to establish by a preponderance of the evidence that there are alternative remedies that make closure unnecessary. See “The Supreme Court, 1978 Term,” 93 Harv.L. Rev. 1, 72 (1979).

Lastly, the majority’s new standard, “realistic likelihood,” is apparently not the same as “reasonable probability,” the standard espoused in Gannett. The burden of clearly showing a realistic likelihood appears to be something more than “reasonable probability.” I make that assessment because the majority has not remanded these proceedings to permit the defendants the opportunity of offering proofs to satisfy its new criteria. The majority is apparently convinced that the defendants could not possibly meet that standard. It may well be that “[i]t is difficult to imagine a case where closure could be ordered appropriately under” the majority’s standard. Gannett, 443 U.S. at 399, 99 S.Ct. at 2915, 61 L.Ed.2d at 634 (Powell, J., concurring).

The majority,- instead of giving due recognition to a defendant’s Sixth Amendment rights, has submerged his interest in procuring an impartial jury, when his life may be at stake, to the press’ interests in being present to obtain a news story. It accomplishes this result by purportedly relying on the federal *80and New Jersey Constitutions. Reliance on the New Jersey Constitution does not seem wise jurisprudentially.

First, .if the First Amendment to the federal constitution guarantees the right of the public and press to be present at probable cause and bail pretrial hearings, there is no necessity to turn to the State Constitution: Second, if there is no federal First Amendment right to attend these pretrial proceedings, the validity of a state constitutional right would depend on the extent and nature of the defendant’s federal Sixth Amendment constitutional right, as explicated and to be explicated by the Supreme Court. Defining the press’ state constitutional right is of little moment without knowing the pull and impact of the defendant’s federal constitutional right.

Third, nothing is gained by interpreting the State Constitution at this time. The Court loses the benefit of important experience. The Court would have been able to observe the impact of its decision in these cases and others that follow on subsequent pretrial and trial proceedings. It also would be the beneficiary of additional input from the Supreme Court and other tribunals. Lastly, since it is not necessary or essential that the Court resort to the State Constitution (the same result could be reached through the rulemaking power), the Court surrenders the flexibility it would otherwise have. This concept lies at the root of the rather firmly established principle that issues should be decided on nonconstitutional grounds when possible. Judicial resilience and progress suffer when the path chosen by the majority is used. This is particularly so since we are unaware at this time of the breadth and scope of the recently recognized First Amendment right of the public and press to be present at criminal proceedings.

As previously observed, I would at least remand to afford these defendants, against whom the prosecution proposes to seek the death penalty, an opportunity to attempt to meet the standards promulgated this day by the majority.

Reversal of a conviction after trial is an extreme remedy and, therefore, trial judges should be “overcautious [in the administration of proceedings before and during jury selection to] ensurfe] that a defendant will receive a fair trial.” Gannett Co. v. DePasquale, 443 U.S. at 379 n. 6, 99 S.Ct. at 2905, 61 L.Ed.2d at 621.

Both the First and Sixth Amendments are applicable to the states via the Fourteenth Amendment. See De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937) (First Amendment); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (Sixth Amendment).

Justice Powell furnished the fifth vote in his concurring opinion in which he agreed that the “reasonable probability” standard was satisfactory. 443 U.S. at 403, 99 S.Ct. at 2917, 61 L.Ed.2d at 636. This standard seems to be the equivalent of a “reasonable likelihood” referred to in Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600, 620 (1966).

It is clear under the majority opinion that this burden is not on the public or the press.