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ruling that, absent particularized showing and findings establishing likelihood of harm to some other compelling interest, pretrial competency hearing in criminal case is presumptively open
Summary of this case from State v. KochOpinion
Argued October 16, 1979
Decided November 20, 1979
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
Henry J. Smith, William F. Macreery and Gerald Nolan for appellant. Robert Abrams, Attorney-General (Joseph W. Henneberry and George D. Zuckerman of counsel), for Russell R. Leggett, respondent.
The petitioner, Westchester Rockland Newspapers, Inc., commenced this proceeding to vacate an order which excluded the public and the press from a pretrial mental competency hearing in a criminal case in which the accused was charged with rape. The order had been entered, at the request of the accused, by the respondent, Judge RUSSELL R. LEGGETT, who presided at the hearing. The Appellate Division upheld the order and dismissed the petition. Westchester Rockland Newspapers, Inc., has now appealed to this court claiming that the order closing the hearing violates its right to hear and report matters of public interest and concern, as guaranteed by various statutory and constitutional provisions.
The case, once again, imposes upon the courts the obligation of reconciling the competing rights of the accused to a fair trial free of damaging pretrial publicity, with the right of the public to be informed, particularly by the press, of what takes place in the courts. It is a sequel to Matter of Gannett Co. v De Pasquale ( 43 N.Y.2d 370) in which this court, and the United States Supreme Court ( 443 U.S. 368, 99 S Ct 2898), recently held that a court may, upon application by the accused, close a pretrial suppression hearing in order to assure a fair trial. Here, however, we are concerned with a pretrial competency hearing which, in purpose, scope and potential impact on the rights of the accused is different from a pretrial suppression hearing.
This case began in 1976. In the summer and fall of that year several small girls and young women were raped or sexually assaulted in Westchester County. The crimes were reported by the local media, including the petitioner's newspaper, the Reporter Dispatch. In November, 1976 the police arrested Alexander Verrone who was later indicted for the crimes. After Verrone had been arraigned and held without bail, his attorney served notice that he intended to raise insanity as a defense at trial.
Defense counsel also applied to have the court determine whether the defendant was mentally fit to stand trial (CPL art 730). Preliminarily the court directed that the defendant be examined professionally. When the court received the report of the examining physicians, which apparently indicated that the defendant was not competent to stand trial, the court ordered that a hearing be held.
The hearing commenced on March 27, 1978. Several reporters, including one from the petitioner's newspaper, were present in the courtroom. But before any testimony was taken defense counsel made an oral application to have the public and the press excluded from the courtroom throughout the hearing. He noted that the case, including all court proceedings, had been regularly reported in the media and claimed that pretrial reporting of the defendant's mental condition might prejudice his trial. He urged that if he raised the insanity defense at trial, the doctor's reports and testimony admitted at the hearing "may become relevant during the trial." He also argued that if he later chose not to pursue the insanity issue at trial, the public, and thus potential jurors, may learn that the defendant has a mental problem although such proof might otherwise be inadmissible at trial. The District Attorney did not oppose the application. He stated, however, that he did not believe that the insanity issue would "come up" at the hearing.
The court, the District Attorney and defense counsel then withdrew from the courtroom and continued the argument on the motion out of the hearing of the public. Afterwards the court returned to the courtroom and announced that the defense motion would be granted for the reasons stated by counsel in open court, supported by details revealed in camera. The court, however, refused to disclose these details because that "would be self-defeating". As a second ground for closing the hearing the court relied on section 4 of the Judiciary Law and stated that this section authorized "the Court to close any case that involves sexual charges."
The newspaper reporters immediately protested this ruling. The following day petitioner's reporter returned with counsel to have the court vacate the closure order on the ground that it violated the constitutional (US Const, 1st, 6th Amdts; and N Y Const, art I, § 8) and statutory rights (Judiciary Law, § 4) of the public and the press. Although the court entertained extended argument, both at the time of the original protest and when counsel appeared, he adhered to the original decision. The public, including the press, could not attend the hearing, nor were they permitted access to transcripts of the proceedings from which they had been excluded.
The petitioners then sought to have the order set aside by commencing this article 78 proceeding in the Appellate Division. While this proceeding was pending, however, the competency hearing was completed. The Appellate Division dismissed the petition on the ground that (1) the matter was now moot, and even if deemed not to be moot (2) the order closing the proceedings "constituted a proper exercise of discretion (see Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370)."
Although the competency hearing has been concluded, the court's order still precludes the petitioner from gaining access to the transcripts of those portions of the proceedings which were held behind closed doors. Thus the petition is not moot to the extent that it seeks to gain access to those transcripts. In addition, in cases such as this, we have traditionally retained jurisdiction, despite a claim of mootness, because of the importance of the question involved, the possibility of recurrence, and the fact that orders of this nature quickly expire and thus typically evade review (see, e.g., Matter of Gannett Co. v De Pasquale, supra, at p 376).
It appears that Verrone was found competent to stand trial and subsequently pleaded guilty to the indictment and was sentenced to a term of imprisonment. We have also been informed that he has taken an appeal from the sentence and the finding of competency and that the appeal is still pending in the Appellate Division.
[3] Although appellant claims a right of appeal to our court on constitutional grounds, the determination below did not necessarily reach the constitutional issue and thus the appeal must be dismissed. However, in view of the importance of the issue as noted above, we have, on motion of the appellant, granted leave to appeal.
In Gannett Co. v De Pasquale ( 443 U.S. 368, 99 S Ct 2898, supra) the United States Supreme Court held that the Sixth Amendment guarantee of a public trial belonged to the defendant alone, and did not insure to the public and the press an independent right of access to pretrial proceedings. Under New York law, however, the public trial guarantee is not so narrowly viewed.
In this State we have recognized that open court proceedings serve several purposes. First, "contemporaneous review in the forum of public opinion" (Matter of Oliver, 333 U.S. 257, 270) serves to protect the accused from "secret inquisitional techniques" and unjust persecution by public officials and "goes far toward insuring him the fair trial to which he is entitled" (People v Jelke, 308 N.Y. 56, 62). Thus, like the Sixth Amendment, our statutes have provided that the accused is entitled to a public trial (Civil Rights Law, § 12; former Code Crim Pro, § 8; People v Jelke, supra; Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, 376, supra).
The public, of course, is not only concerned with seeing that the accused is fairly treated. The public also has an interest in seeing that there is justice for the accuser — the police and prosecutors who must enforce the law, and the victims of crime who suffer when the law is not enforced with vigor and impartiality. And when justice has been done, public awareness "serve[s] to instill a sense of public trust in our judicial process" (People v Hinton, 31 N.Y.2d 71, 73) by assuring the innocent and impressing the guilty with the power of the rule of law. Justice must not only be done; it must be perceived as being done. Thus section 4 of the Judiciary Law provides: "The sittings of every court within this state shall be public, and every citizen may freely attend the same". This we have held is a right which may be asserted by the public and the press in civil (cf. Lee v Brooklyn Union Pub. Co., 209 N.Y. 245, 248, 249) and criminal cases (Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, supra; People v Jones, 47 N.Y.2d 409; but cf. Matter of United Press Assns. v Valente, 308 N.Y. 71 , where the question was not decided by a majority of the court; see, also, Matter of Oliver v Postel, 30 N.Y.2d 171, 179).
But that is only part of the problem. We must also recognize that publicity does not always insure the defendant a fair trial and, in fact, extensive publicity often has the opposite effect of endangering the defendant's right to a fair trial in the community (see, e.g., Sheppard v Maxwell, 384 U.S. 333). Indeed "the trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. Sheppard v. Maxwell, supra" (Gannett Co. v De Pasquale, 443 U.S. 368, 99 S Ct 2898, 2904, supra). This is essentially a question of degree. Fairness to the accused does not mean that the community should be totally ignorant of his activities, or that he is entitled to a jury composed only of those who have no knowledge of the case or his character and prior involvements with the law (see, e.g., Murphy v Florida, 421 U.S. 794, 799; People v Moore, 42 N.Y.2d 421, 431). But the accused should not be required to face trial in open court only after he has already been convicted in a "trial by newspaper", particularly when the newspaper accounts include highly prejudicial evidence which would be inadmissible at trial (Sheppard v Maxwell, supra).
Thus the right of the public and the press to attend court proceedings is not absolute. All court proceedings are presumptively open to the public, but when this would jeopardize the right of the accused to a fair trial, the competing interests must be balanced and reconciled as far as possible.
Our decision in Gannett struck the balance in favor of the accused because of the grave threat that suppressed evidence, if publicly disclosed prior to trial, would virtually eliminate the possibility that the accused would receive a fair trial in a highly publicized case. The very purpose of pretrial suppression hearings is to determine whether certain evidence should be submitted to the jury at trial. They usually involve the admissibility of confessions, eyewitness identifications, contraband, fruits or evidence of crime, or wiretap recordings (see CPL 710.20) — the type of proof which may often be considered extremely persuasive, if not conclusive evidence of guilt. Indeed we have recognized that "nothing could be more conclusive evidence of the defendant's guilt than a signed confession" (People v Jones, 47 N.Y.2d 528, 534).
Because this type of proof is so difficult, and in some cases impossible, for jurors to forget or ignore once it has been revealed, the law has provided that any question concerning its admissibility should be decided in a separate hearing out of the presence of the jury (see, e.g., Jackson v Denno, 378 U.S. 368; People v Huntley, 15 N.Y.2d 72). And recognizing the startling effect that admission of this type of proof is likely to have on the defendant's case, the law in this State also provides that the hearing be held prior to trial so that the defendant may know in advance the risks he faces, and thus be able to prepare his case accordingly (People v Briggs, 38 N.Y.2d 319, 323; People v Spruille, 47 N.Y.2d 869). In short, pretrial suppression hearings are often a potent source for the revelation of evidence which is both highly prejudicial to the defendant's case and not properly admissible at trial.
If these hearings were open to the public and the press in a well-publicized case, it is most likely that the substance of the evidence would be disclosed to the community from which the jurors would be drawn, even though the court may ultimately rule that the evidence should not be submitted to the jury at trial. This would not only destroy the purpose for which the hearing was held, but would, perversely, have the very opposite effect of that intended and desired. Instead of shielding the jurors from evidence they should not hear, the public airing at the pretrial suppression hearing would serve to broadcast the evidence to most, if not all potential jurors. Because of the obvious threat that public attendance at these hearings might pose to the defendant's right to a fair trial and the integrity and effectiveness of the judicial process in a highly publicized case, we held in Gannett that the defendant could request that the hearing be closed to the public and that the court did not lack the inherent power to grant the request if that was necessary to preserve the defendant's right to a fair trial in the particular case.
But we did not mean to suggest that closure would be necessary or even appropriate in all pretrial proceedings. There would, for instance, be little justification for holding a private arraignment (cf. Matter of Rudd v Hazard, 266 N.Y. 302). A public reading of the charges and the defendant's plea will rarely help the defendant's case. But not every disclosure about the case and the defendant's involvement in it jeopardizes his right to a fair trial, even though he may prefer, for strategic reasons, that there be no publicity prior to trial of anything which is not unequivocally beneficial to his case (see, e.g., Murphy v Florida, 421 U.S. 794, supra; People v Moore, 42 N.Y.2d 421). Fairness to the accused does not require that his appearance at the trial should come as a complete surprise to the community.
In any criminal case there are bound to be numerous pretrial proceedings. These proceedings often consume as much time as the trial. In many criminal cases these proceedings eliminate the need for a trial because either the charges are dismissed or the determination at the hearing substantially affects or destroys a party's chance of succeeding at trial (see, e.g., People v Grant, 45 N.Y.2d 366, 379; Matter of Forte v Supreme Ct. of State of N.Y., 48 N.Y.2d 179). At the present time, in fact in most criminal cases, there are only pretrial proceedings. Thus if the public is routinely excluded from all proceedings prior to trial, most of the work of the criminal courts will be done behind closed doors.
The right of the public to attend court proceedings generally includes pretrial proceedings in criminal cases (Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, 376, 377, supra). Although evidence submitted at these proceedings will not always benefit the defendant's case, it generally will not involve a possibly inadmissible confession or other legal bombshell which would hopelessly jeopardize his right to a fair trial if made available to the public. Certainly in the vast majority of commonplace criminal cases, where there is no publicity, permitting the public to attend pretrial hearings would involve little risk of widespread dissemination of inadmissible evidence prior to trial.
Even when a case has attracted public attention, public attendance at a pretrial competency hearing would not ordinarily generate the type of adverse pretrial publicity which could impair the defendant's right to a fair trial. The purpose of such a hearing is simply to determine whether the accused is mentally competent to stand trial (see, e.g., Pitler, New York Criminal Practice Under the CPL, pp 330-334). The inquiry narrowly focuses on the defendant's present mental capacity to understand the proceedings against him and to assist in his own defense (CPL 730.10, subd 1). The "`test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him'" (Dusky v United States, 362 U.S. 402; Denzer, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 730.10, p 332; People v Francabandera, 33 N.Y.2d 429, 436).
This, of course, is not the same question that the jury may be called upon to decide if the defendant raises an insanity defense at trial. At the hearing the defendant's present mental capacity is in issue; while at the trial it is the defendant's mental state at the time of the crime which controls. More important, a completely different standard applies (see Penal Law, § 30.05, subd 1). "Determinations of incompetency to stand trial, lack of criminal responsibility because of mental disease or defect, and mental illness for purposes of civil commitment are independent concepts" (Pitler, op. cit., p 330).
Evidence relevant and admissible to establish the defendant's capacity to understand the legal proceedings and to assist his attorney would ordinarily reveal little or nothing about his possible guilt of the crimes charged. Nor is it foreseeable that public disclosure of the proof would frustrate the purpose of such a hearing. Thus even in a case which has received some publicity the court cannot assume that public attendance at a competency hearing will necessarily jeopardize the defendant's right to a fair trial. If there is, in fact, such a risk in a particular case, the defendant has the burden of establishing it.
Similarly the fact that the defendant may be charged with sexual offenses does not mean that the hearing should automatically be closed to the public. It is true, of course, that section 4 of the Judiciary Law grants the public the right to attend all court proceedings "except that in all proceedings and trials 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." The exception, however, must be narrowly construed (People v Jelke, 308 N.Y. 56, 65, supra). It applies only when there will be testimony concerning the details of the specific acts mentioned in the statute and then only when the commission of one or more of the specified acts is the issue to be decided (People v Jelke, supra, at pp 64-65). The purpose of the exception is to grant the Judge the "power to refuse to turn his courtroom into a peep show" (United Press Assns. v Valente, 308 N.Y. 71, 87, supra [DESMOND, J., concurring]). It is not aimed at shielding the public from testimony of all mental disorders which may have a sexual basis. Surely the details of the sexual acts, which were considered offensive, are not likely to be relevant in determining the defendant's present ability to understand the proceedings and assist counsel at the trial. Here, too, the defendant must show that evidence relevant and admissible at the hearing would come within the statutory exception.
Initially the motion to exclude the public from the pretrial proceeding must be made on the record, in open court. In support of the motion the defendant must demonstrate to the court a strong likelihood that evidence relevant and admissible at this particular hearing in this case would prejudice the defendant's trial if it were disclosed to potential jurors or would involve sordid matters expressly covered by section 4 of the Judiciary Law. If, during the course of the argument, it becomes necessary for counsel to introduce or tender specified items of proof, the public disclosure of which would create the very prejudice sought to be avoided or would itself involve disclosure of such sordid matters, defense counsel may further request that this portion of the argument be continued in camera, in the presence of counsel for the defendant and the prosecutor but out of the hearing of the public. In any event, all proceedings on the motion, whether in open court or in camera, should be recorded for appellate review.
Should the court decide that it is necessary to close the hearing in order to protect the defendant's rights or pursuant to section 4 of the Judiciary Law, the reasons for closure shall be given in open court. The court, of course, shall be cautious in this pronouncement lest the expressed reasons create the prejudice or the disclosure sought to be avoided.
Although that procedure was properly followed in this case, the defendant failed to show sufficient basis for the ruling requested. There was no showing that there would be testimony describing the sexual acts specified in the statute (Judiciary Law, § 4). Nor was there any showing of need for the court to exercise its inherent power to exclude the public from the hearing.
Proof that the defendant may have a mental defect is not generally considered evidence of guilt, and, in fact, is often asserted by the defendant to avoid or mitigate criminal responsibility (see, e.g., Penal Law, § 30.05, 125.20, subd 2). And, as indicated, in this case the defendant had served notice that he intended to do so at the trial. Of course he may later choose not to make his mental condition an issue at the trial. But when he has given the notice, and later requests a competency examination, which was the subject of several newspaper accounts, it is too late for the defendant to claim that the hearing should be closed to the public in order to prevent disclosure of the fact that he may have a mental problem — even assuming that type of pretrial publicity could be said to jeopardize his right to a fair trial. He may have a legitimate interest in preventing public disclosure of certain details of his mental condition and the basis for the expert opinion (see, e.g., Pitler, op. cit., pp 337-339), but that would justify excluding the public only from as much of the hearing as covered those points and not from the entire hearing (cf. People v Jelke, supra, at p 64), as was done in this case. In sum, there was no sufficient basis to deny the public the right to attend the proceeding, as they are entitled to do by statute (Judiciary Law, § 4).
In light of this disposition, it is unnecessary to consider the petitioner's alternative arguments that its right of access to court proceedings is guaranteed by the First Amendment and the similar provisions of the State Constitution. We would note, however, that this is not an open question in this State. In United Press Assns. v Valente ( 308 N.Y. 71, 77, 87, supra) all members of the court, although divided on other points, unanimously held that the public and the press had no constitutional right of access to court proceedings under either the First Amendment or the similar provision in the State Constitution (art I, § 8). Later in Matter of Oliver v Postel ( 30 N.Y.2d 171, 179, supra) we declined to reconsider that position because, as here, it was unnecessary to do so. The Supreme Court decisions do not require a contrary result. Indeed in the most recent case to pose the issue the Supreme Court expressly refused to decide it (Gannett Co. v De Pasquale, 443 U.S. 368, 99 S Ct 2898, 2912, supra).
It should be emphasized however, in response to the concurring opinions, that any right of access to court proceedings accorded to the public and the press must also take into account the equally important rights of the accused (see, e.g., Meyer, The Most Fundamental of All Freedoms, 2 Crim Law Bull, No. 3, p 26; Meyer, Justice and the News Media: A Reply And A Challenge, 3 Trial, No. 2, p 38; Meyer, News Reporting and Fair Trial, 22 Okla L Rev 135). Complete freedom to speak and publish at will is, of course, the ideal and essential limitations on that freedom should be few and carefully scrutinized. But the true measure of our society will not be judged by the freedom we grant to our great institutions as much as by the protection we provide for society's lowliest member. And none are more lowly — none more subject to potential abuse — and none with more at stake than those who have been indicted and face criminal prosecution in our courts. For them, freedom and fair trial are not abstractions.
Thus recognition of a public right of access to court proceedings does not mean that the defendant's right to a fair trial assumes a secondary role. Even if the public's right were founded on the First Amendment, it could not serve to diminish the rights of the accused, for the primary purpose of the Bill of Rights and the corresponding provisions of the State Constitution is to insure the individual, particularly the unpopular individual, a measure of protection against oppression by a majority. Nor should the defendant's right to a fair trial be contingent on the surrender of other rights guaranteed to the accused, as the concurring opinions would require. The defendant should not be placed in a position where he will have to submit to a continuance at the expense of his right to a speedy trial, or to a change of venue which would require a waiver of his fundamental right to a trial in the vicinage by a jury of his peers (cf. People v Taylor, 39 N.Y.2d 649; People v Goldswer, 39 N.Y.2d 656). The suggestion that sequestration may serve as an alternative to closure is impractical when a pretrial proceeding is involved. Generally at that stage there are no jurors to sequester and to delay the hearing until the jury has been, or is about to be drawn, would deprive the accused, and often the prosecutor, of the benefit of a pretrial ruling — that is, advance warning and time to prepare for trial on matters essential to the case.
On the other hand, it should not be assumed that the public interest which reporting fosters cannot be preserved by making the transcript available to the media as soon as the danger of prejudice to the defendant has passed (see Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, 381, supra). Thus in those rare cases where there is a risk that public attendance at all or part of a pretrial hearing will jeopardize the defendant's right to a fair trial in the community, delaying the release of the prejudicial information would more closely conform to the Bill of Rights than would the alternatives proposed by the concurring opinions.
Accordingly, the judgment of the Appellate Division should be reversed and the petition granted to the extent of directing the release of the transcripts of the competency hearing.
The decision to close any pretrial hearing at the request of a criminal defendant is one which should be made only in extraordinary circumstances. I write briefly to indicate my views as to what the proper standards should be when such a request is made.
Preliminarily, at least for present purposes, it has been declared that the public is possessed of no inherent Sixth Amendment right to attend pretrial criminal hearings: the constitutional right to a public trial is that of the defendant (Gannett Co. v De Pasquale, 443 U.S. 368, 99 S Ct 2898). It is unnecessary, however, to address the difficult issue of whether the public, and by inclusion the press, is vested with a First Amendment right of access to these proceedings (compare id., at pp 2914-2917 [POWELL, J., concurring], with id., at p 2918 REHNQUIST, J., concurring], and United Press Assns. v Valente, 308 N.Y. 71). For in this State, the answer to this perplexing problem has been supplied by our Legislature.
Little need be said here about the benefits which redound as a result of open judicial proceedings — both to the criminal defendant and the public at large. Public proceedings protect the rights of the defendant by safeguarding against attempts to employ courts as instruments of persecution (see People v Jones, 47 N.Y.2d 409, 413, cert den 439 U.S. 846). And, in a larger sense, public scrutiny of all involved in the criminal justice system serves at once as a deterrent to partial justice and fosters a sense of confidence and respect on the part of the public in that system. In short, open judicial proceedings serve "to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice" (Cox Broadcasting Corp. v Cohn, 420 U.S. 469, 492).
That this long-standing tradition of open public trials is firmly rooted in the history of this State, from colonial times until the present day, is beyond dispute (see 1 Holdsworth, History of English Law, 7-24; L 1876, ch 448, tit I, art 2, § 5; L 1879, ch 210). Thus, in clear and explicit terms, the Legislature has commanded that, "[t]he sittings of every court within this state shall be public, and every citizen may freely attend the same" (Judiciary Law, § 4 [emphasis supplied]). That is not to say, of course, that the rule of section 4 is without exception. Indeed, the statute itself excepts from its ambit certain trials whose subject matter may offend public sensibilities or unreasonably invade the privacy rights of witnesses (see People v Jelke, 308 N.Y. 56). In other instances, public necessity itself may command closing of the courtroom doors (see, e.g., People v Hinton, 31 N.Y.2d 71, cert den 410 U.S. 911).
But cases such as the present one, in which the defendant requests what is, in essence, a private trial, implicate the rights of the public and the defendant to such an extent that both must be carefully delineated. No one can dispute that a party to any judicial proceeding, as a matter of fundamental fairness at the very least and from a constitutional perspective as well, is entitled to a trial in which the trier of fact considers only that evidence presented to it. Especially when a person's liberty is at stake, courts must be ever vigilant to assure that prejudicial or spurious information does not infect the proceeding (see Sheppard v Maxwell, 384 U.S. 333). By the same token, however, merely because a pending prosecution has aroused public interest does not lead inexorably to the conclusion that the fair trial rights of the defendant would be irrevocably prejudiced, or even jeopardized, by reports of what has transpired in pretrial proceedings. Such a conclusion would result in an unfortunate paradox: the greater the interest in a particular prosecution, the more apt the defendant to claim the possibility of prejudice and, concomitantly, the more likely that the proceeding will be isolated from public scrutiny.
It is to this situation, and others like it, that section 4 of the Judiciary Law is addressed. By its plain terms, the statute mandates that any judicial proceeding, whether it be a criminal or civil trial, an arraignment, a sentencing proceeding or a pretrial hearing, be presumptively open to the public (majority opn, at p 438; Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, 376, affd 443 U.S. 368, 99 S Ct 2898). Those who seek to curtail this right bear a heavy burden of demonstrating that there exists a high degree of probability that defendant's right to a fair trial would be jeopardized to such an extent that dissemination of prejudicial pretrial publicity would result in reversal of any conviction thereafter obtained. In making this determination, moreover, the court must always bear in mind that an open judicial proceeding is a necessary correlative to a free and open society. Thus, before any proceeding is closed, the proponent of the closure order must establish that there exist no other less restrictive protective measures available to assure a fair trial. In short, the right of the public to attend judicial proceedings ends only where the defendant's right to trial by an impartial jury is unalterably threatened.
Pretrial publicity, in and of itself, does not often endanger the right of a criminal defendant to receive a fair trial (see, e.g., Murphy v Florida, 421 U.S. 794). As the majority pointedly notes and as this case graphically illustrates, information disclosed at many pretrial proceedings will have no bearing on what is subsequently revealed at trial (at pp 439-442). Indeed, from a purely analytical viewpoint, even pretrial suppression hearings pose little danger to a defendant's right to a fair trial. For at these hearings it is the circumstances surrounding the making of a statement or the seizure of evidence that is principally in issue rather than the substance of the statement or nature of the evidence itself.
None of this is meant to detract from the duty of the trial court to safeguard the fair trial rights of a defendant. It would be extremely naive to maintain that pretrial publicity may never transgress a defendant's Sixth Amendment rights (e.g., Sheppard v Maxwell, 384 U.S. 333, supra; Irvin v Dowd, 366 U.S. 717). The nature and extent of the information already disseminated to the public is one factor to be considered by the court in deciding whether to close a hearing. The proponent of the motion must demonstrate the impact this information will have on the jury pool. This, of course, involves considerations of the size of the pool, the extent of media coverage and the effect of that coverage on the public at large. But even if all of these factors would lead to the conclusion that reversal of any conviction is all but inevitable, no closure order should be entered until all possible alternatives to dispel prejudice are explored. These include, of course, change of venue, continuance, venire, sequestration of the jury and an adequate number of peremptory challenges to name but a few (see ABA Project on Standards Relating to the Administration of Criminal Justice, Fair Trial and Free Press, Standard, § 8-3.2 (App Draft, 1978); Nebraska Press Assn. v Stuart, 427 U.S. 539, 562-565; Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, 387 [dissenting opn], supra). It is only where the proponent of the closure motion establishes that these alternatives, whether individually or in combination, do not diminish the strong likelihood that open judicial proceedings will result in reversal, may the right of the public to attend the sitting of "every court within this state" (Judiciary Law, § 4) be overridden.
For example, the court may approve a procedure whereby jury selection and sequestration occurs prior to a suppression hearing.
I agree that the closure order should be invalidated. However, I depart from the majority in its refusal to ground our decision at least in part upon First Amendment principles and instead rely on what I view as artificial distinctions between various kinds of pretrial proceedings. As I see it, the decision today leaves us in the position of having to set forth discrete rules for every type of judicial proceeding in which the exercise of judicial discretion leads to a restriction on public access. The consequence is to leave Trial Judges and litigants at sea and without a clear beacon from which to chart their course through the cross currents of this recurring problem.
Moreover, as a practical matter, I am not convinced that the standards established by today's decision afford adequate protection to the public's right of access to judicial proceedings. By leaving the interest in open court proceedings without constitutional support, it is made subservient to the dominant, even if not exclusive, role of the Sixth Amendment. The result may very well be a whittling away of the right of public access. Indeed, according to the latest available statistics, from the date of the Supreme Court's decision in Gannett Co. v De Pasquale ( 443 U.S. 368, 99 S Ct 2898), July 2, 1979, until the beginning of October, 1979, closure motions were made in the course of 75 criminal proceedings across the Nation and in 44 of those cases the closures were enforced or upheld on appeal (Reporters Committee for Freedom of the Press, Washington, DC; see, also, New York Times, Oct. 13, 1979, p 21, col 1). Nor were the closures confined to suppression hearings. They extended to other pretrial proceedings, such as probable cause hearings and voir dire (see Rapid City Journal Co. v Circuit Ct., 283 N.W.2d 563 [SD]) as well, for instance, as posttrial proceedings relating to sentencing (but see United States v Fiumara, 605 F.2d 116 ). More ominous still is the fact that, in several cases, the trial itself was closed (see Richmond Newspapers v Commonwealth of Virginia, — Va — [Va Supreme Ct, July 9, 1979], cert granted 444 U.S. 896). There is, therefore, an urgent need for a firm guarantee of openness in criminal proceedings.
At this point, I also pause to note that, although the Supreme Court's Gannett decision held that the right to invoke the Sixth Amendment's public trial guarantee belonged primarily to a defendant in a criminal proceeding ( 443 U.S. 368, 99 S Ct 2898, 2905-2911, affg 43 N.Y.2d 370), that decision does not compel the conclusion that First Amendment interests are irrelevant to our considerations in this case. Rather, in essence, Gannett did no more than carefully skirt the First Amendment issue.
Delivering the opinion of the court in Gannett, Justice STEWART, far from writing off the First Amendment, simply stated, "even assuming, arguendo, that the First and Fourteenth Amendments may guarantee such access in some situations, a question we do not decide, this putative right was given all appropriate deference" ( 443 U.S. 368, 99 S Ct, at p 2912). Though Chief Justice BERGER wrote separately to emphasize that a pretrial rather than a trial proceeding was involved ( 443 U.S. 368, 99 S Ct, at p 2913), he too joined in this opinion. Indeed, the only opinions to directly address the First Amendment question were the separate concurrences of Justices POWELL and REHNQUIST, who came to antithetical positions. Justice POWELL not only indicated that the public and the press did possess a protected First Amendment interest, but made the point that it had been adequately respected at the trial level ( 443 U.S. 368, 99 S Ct, at pp 2914-2917); contrariwise, Justice REHNQUIST took the occasion to opine that the court had "repeatedly * * * held that there is no First Amendment right of access in the public or the press to judicial or other governmental proceedings" ( 443 U.S. 368, 99 S Ct, at p 2918). Finally, the four dissenting Justices, in an opinion by Justice BLACKMUN, elected to meet the plurality squarely on its Sixth Amendment grounds alone; but, while they briefly acknowledged that the court had not previously based its determinations of disputes over access to governmental information on the First Amendment, the dissenters apparently did not view the case an appropriate vehicle for the exploration of the more untracked terrain in which both First and Sixth Amendment interests can be said to reside ( 443 U.S. 368, 99 S Ct, at p 2919).
On this box score — one Justice for reliance on the First Amendment, one Justice against such reliance and seven varyingly noncommittal — the decision furnishes little, if any, guidance on the role the First Amendment should play in the present case. It certainly does not warrant abdication of our own responsibilities in an area that is not only as important but as unsettled as this one (see, e.g., N Y Const, art I, § 8; Civil Rights Law, § 12; CPL 30.20, subd 1; Judiciary Law, § 4).
For that matter, what I here make express, I deem implicit in the majority's own position. Since the defendant himself willingly waived the right to be tried publicly, I would read the caution that the majority here counsels Trial Judges to employ as itself denoting a great reluctance to tread upon the prerogatives of the public and the press as observers in a judicial proceeding. More directly stated, because the "right to know" about the content as well as the conduct of such proceedings looms so large in the scheme of the rights essential for self-government in a democracy, it is deserving of constitutional recognition under the First Amendment (see Meiklejohn, Free Speech and Its Relation to Self-Government, p 26; Note, Trial Secrecy and the First Amendment Right of Public Access to Judicial Proceedings, 91 Harv L Rev 1899).
Time and again it has been said that public scrutiny of the functioning of the courts, as with that of the legislative and the executive branches of our governments, serves as an effective means of insuring that Judges and prosecutors — officials invested with the public's trust — perform responsibly and not arbitrarily (Sheppard v Maxwell, 384 U.S. 333, 350; see Cox Broadcasting Corp. v Cohn, 420 U.S. 469, 492; Mills v Alabama, 384 U.S. 214, 218-219). To this end, it has been emphasized that "[a] trial is a public event. What transpires in the court room is public property * * * 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" (Craig v Harney, 331 U.S. 367, 374).
But, apart from this, the openness of a judicial proceeding, especially a criminal one, is itself valuable in reinforcing the integrity of our system of justice and maintaining public confidence in its institutions. As we noted only recently, "the concept of a secret trial is anathema to the social and political philosophy which motivates our society" (People v Jones, 47 N.Y.2d 409, 413, cert den 439 U.S. 846; see Matter of Oliver, 333 U.S. 257, 268). And, access to the processes by which justice is dispensed tends to facilitate public education about those processes themselves as well as about the vital issues that they often address. Indeed, perhaps more apt today than ever before is De Tocqueville's observation that "hardly a political question in the United States * * * does not sooner or later turn into a judicial one" (De Tocqueville, Democracy in America [Mayer ed, Lawrence trans, 1969], ch 8, p 270).
This said, it cannot be doubted that the press performs the key role in disseminating to the public information about the judicial process. Because the "man in the street" generally has neither the time nor the inclination to attend trials much less pretrial proceedings, which, because of the prevalence of plea bargaining, most often turn out to be the only judicial proceedings that take place in criminal cases, it falls to the press to furnish the information that the citizen needs to intelligently discharge his civic obligations. For, citizen awareness of the functioning of governmental institutions — one of the prime underpinnings of the First Amendment — depends as a practical matter on the prospect of an inquiring press for its continued validity (Cox Broadcasting Corp. v Cohn, 420 U.S. 469, 491, supra; United States v Cianfrani, 573 F.2d 835, 862 [GIBBONS, J., concurring]; Note, Right to Attend Criminal Hearings, 78 Col L Rev 1308, 1319).
Viewing the press as the agent of the public in these matters does not, as a consequence, entail recognizing a special right of access for the media when the general public has no such right. Supreme Court decisions have refused to interpret the First Amendment to permit the press greater access than is the public's entitlement (see Houchins v KQED, Inc., 438 U.S. 1, 11-12; Saxbe v Washington Post Co., 417 U.S. 843, 850; Pell v Procunier, 417 U.S. 817, 834 ["newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public"]).
That this First Amendment interest was infringed in the case before us cannot be questioned. In the first place, unlike Gannett, it cannot be argued that no timely objection to the closure of the pretrial hearing was lodged by a representative of the public (see Gannett Co. v De Pasquale, 443 U.S. 368, 99 S Ct 2898, 2912, 2918-2919, supra). Here, members of the press promptly made known their opposition to the Judge's ruling excluding the public from the competency proceeding.
More importantly, no colorable claim can be made that the competency proceeding required under CPL article 730, because it was not a "trial", reflected no matter of public interest. While judicial proceedings admittedly "are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper" (Bridges v California, 314 U.S. 252, 271), it is no less true that the community's interest in this defendant's case could easily have been transformed into suspicion and even distrust of the criminal justice process had the decision rendered behind closed doors been one of incompetency to stand trial (cf. Note, 91 Harv L Rev 1899, 1907-1908). Far beyond this, the public was certainly entitled to know firsthand where and how our legal system draws the line between competency and incompetency. Moreover, if a trial had resulted, the testimony adduced at the CPL article 730 hearing would likely bear critically on the defense of insanity. For example, the testimony of medical and psychiatric experts might be relevant in the not unusual circumstance of a defendant whose insanity plea is based on the same or similar mental defect that furnished the grounds for his alleged incompetency. Insofar as the evidence relating to incompetency and insanity overlap, the "right to know" thus subsumes more than merely the ability to obtain information; on a more fundamental level, it carries implications for public confidence in and respect for the institutions that define the concepts of "guilt" and "innocence".
Looked at in terms of the deprivation of information occasioned by the closure, the pretrial suppression hearing in Gannett from which the public was permissibly excluded certainly had no less an effect. Nor am I persuaded that pretrial competency hearings may not present the same dangers to a defendant's Sixth Amendment rights as do suppression hearings. Certainly, at least in terms of impact on the community from which potential jurors will be drawn, an unsuccessful claim of incompetency to stand trial might well be interpreted, rightly or wrongly, as a desperate attempt by the defendant to avoid a trial on the merits and a signal that a subsequent insanity defense, especially one that relies on proof of the same nature, should be similarly discredited. In contrast, most suppression hearings are unlikely to generate the kind of sensationalism that would seriously prejudice a defendant's fair trial right. In short, it should not be the category of the pretrial proceeding, but instead, the facts and circumstances in the particular case that are determinative.
Nor was the closure order any less of an infringement on constitutionally protected interests because it took the form of a denial of access rather than a ban on the communicating of information already known, presumptively invalid as a prior restraint (see, generally, New York Times Co. v United States, 403 U.S. 713, 714). The First Amendment respects the right of citizens to enjoy the free flow of information and ideas, a right which necessarily encompasses the correlative rights to receive and to communicate (see Virginia Pharmacy Bd. v Virginia Consumer Council, 425 U.S. 748, 764-765; cf. People v Remeny, 40 N.Y.2d 527, 533 [concurring opn]). Obviously, without the means to acquire information, the constant stream of thought and discourse may be slowed to an intermittent trickle. Especially is this so where the source has been one historically open to public probing, for its damming up then becomes tantamount to a restriction on both the gathering and the communicating of information.
All of this, of course, is not to say that, waving the banner of the First Amendment, we should ride roughshod over the defendant's right to a fair trial. In the overwhelming majority of criminal proceedings no serious threat of prejudice will appear; in fewer cases still will the prejudice threaten to be of unmanageable dimensions. In those rare instances in which the First and Sixth Amendment interests compete head-on, an accommodation must be reached. However, because "[f]reedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice" (Pennekamp v Florida, 328 U.S. 331, 347), I would strike the balance only when the probability of ineradicable prejudice remains after an exhaustive consideration of the alternatives to closure.
Rather, there not only are obvious limitations on access to the judicial process, as witness the exclusion of the public from the deliberations of Judges and juries, but restrictions may also be imposed, when circumstances warrant, in such matters as those within the purview of section 4 of the Judiciary Law (People v Jelke, 308 N.Y. 56) and, when appropriate, during the testimony of undercover police personnel (People v Hinton, 31 N.Y.2d 71).
Among such less restrictive alternatives that may commonly be employed by the Trial Judge are changes of venue or venire, continuances, extensive voir dire and cautionary instructions (see Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, 382, 387, supra [COOKE and FUCHSBERG, JJ., dissenting]; Nebraska Press Assn. v Stuart, 427 U.S. 539, 563). In this case, the record discloses no such probing examination of any option other than the most extreme, that of closure. And, even were the circumstances of such an order of magnitude as to justify excluding the public and the press from the pretrial hearing, certainly nothing excused the continuing unavailability of the hearing transcript once the defendant had pleaded guilty.
I therefore join with my colleagues in the result. But I do not do so without emphasizing that the rationales on which our respective votes proceed are crucial for what they portend for First Amendment rights. For this is a case in which the reasoning may be more important than the result.
Judges JASEN, JONES and MEYER concur with Judge WACHTLER; Chief Judge COOKE and Judge FUCHSBERG concur in separate concurring opinions; Judge GABRIELLI taking no part.
Appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Oral application for leave to appeal granted. Judgment reversed, with costs, and the petition granted to the extent of directing the release of the transcripts of the competency hearing.