In Gannett, we upheld a trial court's closure of a pretrial suppression hearing, recognizing that "[a]t the point where press commentary on those hearings would threaten the impaneling of a constitutionally impartial jury * * * pretrial evidentiary hearings in this State are presumptively to be closed to the public" (43 N.Y.2d, at 380, supra).Summary of this case from Associated Press v. Bell
Argued October 12, 1977
Decided December 19, 1977
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, DANIEL A. DE PASQUALE.
Bernard Kobroff and Alan D. Marrus for appellants. Robert C. Bernius and John Stuart Smith for respondent.
During the course of pretrial suppression hearings in a highly publicized murder case, the court directed that the evidentiary proceedings be closed to the public, including the press. The closure order was imposed as a means to ensure the defendants' right to a fair trial by forestalling the prejudicial effects of further notoriety. In this article 78 proceeding in the nature of prohibition, the petitioner, a disseminator of news through press and television, claims that the court's action violated First Amendment guarantees and the Sixth Amendment right to a public trial. In what is hardly a novel conflict, its claim presents an open issue within the "free press — fair trial" controversy (see Matter of Oliver v Postel, 30 N.Y.2d 171, 183; Matter of United Press Assns. v Valente, 308 N.Y. 71, 85; cf. Nebraska Press Assn. v Stuart, 427 U.S. 539, 564, n 8).
This claim to unrestricted media access to criminal proceedings of public interest stems from an unusual matter locally known as "the Clapp murder case". Wayne Clapp was a former town policeman. He had lived his entire 42 years in the Rochester area and had developed deep ties in the surrounding rural communities. On July 19, 1976, he was reported missing.
According to reports in the news media, including the petitioner's two daily papers and Rochester television station, Clapp had last been seen leaving Roy's Marina accompanied by two unidentified youths. His boat had later been returned, laced with bullet holes. But his pickup truck and .357 magnum revolver, along with the two strangers, had vanished. Divers began searching Seneca Lake for Clapp's remains. The body of the deceased, however, was never recovered.
On July 22, the media announced that a nationwide police alert for Clapp's truck had proved successful. Michigan police had spotted the vehicle and, after a three-hour chase requiring helicopters and tracking dogs, they arrested a 16-year-old Texas youth, Kyle Greathouse, and his 21-year-old traveling companion, David Jones. The next day, front page articles revealed that Greathouse, apparently acquiescing to police requests, had led Michigan authorities to the location where he had buried the stolen revolver. The press later reported, without expanding, that the suspects had made admissions or confessions before waiving extradition proceedings and being returned to New York.
A Seneca County Grand Jury returned a lengthy indictment charging the two youths with second degree murder and robbery. On August 6, petitioner's morning daily reported that the accused "pleaded innocent yesterday * * * at their arraignment before Seneca County Court Judge Daniel De Pasquale. `Not guilty, your honor,' the 16-year-old Greathouse answered * * * Jones gave the same response."
At the commencement of a pretrial suppression hearing, defense attorneys argued that an unabated buildup of adverse publicity had already jeopardized their clients' ability to receive a fair trial. To minimize the prejudicial effects of further disclosures, they asked that the pretrial proceedings be held in camera. The District Attorney had no objections. In an oral ruling, the court concluded that "these matters are in the nature of a Huntley hearing and suppression of physical evidence, and it is not the trial * * * Certain evidentiary matters may come up in the testimony of the People's witnesses that may be prejudicial to the defendants, and for those reasons the court is going to grant both [defendants'] motions." The public, including the petitioner's staff reporter, were removed from the courtroom. The suppression hearing then commenced and continued in camera to its conclusion the next day.
Three days later, counsel for Gannett appeared and asked the County Court to reconsider and vacate its ruling nunc pro tunc. Since the proceedings had already been concluded, a copy of the hearing transcript was also requested. While finding this intervention untimely, the court accommodated the asserted public interest. It signed Gannett's show cause order directing both the defense and the People to justify withholding the transcripts. The issues were fully briefed, and on November 16, the merits were argued. But the advantages of hindsight and further debate only reinforced the court's initial determination that open suppression hearings, if exposed to notoriety, would have deprived Greathouse and Jones of any meaningful opportunity to receive a fair trial. The court's original finding of "a reasonable probability of prejudice to the defendants" not only justified closure in the first instance but, in the Trial Judge's view, applied with equal force to the request for transcripts as well.
The Appellate Division disagreed and, while trial in the criminal proceeding was still pending, granted the petitioner's renewed request for access to the sealed records. Its Per Curiam decision, while purporting to resolve what had already become an academic dispute, has nonetheless provided a conduit through which critical aspects of the "free press — fair trial" controversy have been presented for review.
The transcripts had already been offered for the petitioner's use. The need for sealing them had disappeared after codefendants Greathouse and Jones, in satisfaction of the indictment pending against them, pleaded guilty to lesser included crimes.
We would ordinarily decline the invitation and dismiss the appeal, taken by the respondents in the article 78 proceeding, for mootness. But this is far from an ordinary appeal. It crystallizes a recurring and delicate issue of concrete significance both to the courts and the news media. And in its broadest implications, it presents a challenge to a fundamental precept of judicial administration — the courts' inherent power to control their own process. For these reasons, combined with the fact that matters of this character typically evade review, we have retained jurisdiction to entertain the appeal (see Matter of Oliver v Postel, 30 N.Y.2d 171, 178, supra; Matter of United Press Assns. v Valente, 308 N.Y. 71, 76, supra; cf. East Meadow Community Concerts Assn. v Board of Educ., 18 N.Y.2d 129, 135; Matter of Rosenbluth v Finkelstein, 300 N.Y. 402, 404; see, generally, Cohen and Karger, Powers of the New York Court of Appeals, pp 420-421).
Criminal trials are presumptively open to the public, including the press. Public access is secured through a fundamental concept said to be rooted in distrust for secret tribunals — the inquisition, star chamber and lettre de cachet (Matter of Oliver, 333 U.S. 257, 268-270). It is typically the defendant, however, who reminds us on appeal from cases of compelled closure that the right to a public trial is a constitutional guarantee which "the accused shall enjoy" (US Const, 6th Amdt; Civil Rights Law, § 12; former Code Crim Pro, § 8; see, e.g., People v Hinton, 31 N.Y.2d 71, cert den 410 U.S. 911). It is after all the defendant whose right to a "fair trial in a fair tribunal" (Matter of Murchison, 349 U.S. 133, 136; People v McLaughlin, 150 N.Y. 365, 375) and whose very liberty is in jeopardy. And because it is the defendant who suffers directly when wrongfully deprived of public vigilance against possibly unjust prosecution or potential abuse (or nonuse) of judicial discretion, the right to insist on a public trial is primarily that of the accused (Matter of Oliver, supra, at pp 268-271; United States v Sorrentino, 175 F.2d 721, 722-723; compare People v Jelke, 308 N.Y. 56, with Matter of United Press Assns. v Valente, 308 N.Y. 71, 80-81, supra).
In practice, this priority need not detract from the public's general interest in the assurance of fair as well as effective enforcement of its laws. Though somewhat attenuated in comparison with a defendant's self-interest, each of us shares a stake in an adversary system which consistently dispenses our penal laws impartially (US Const, 5th, 6th, 14th Amdts; N Y Const, art I, §§ 2, 6), free from needless prejudicial publicity (see, e.g., Sheppard v Maxwell, 384 U.S. 333). Ordinarily, public trials "serve to instill a sense of public trust in our judicial process" (People v Hinton, supra, at p 73). But this assumes that public access in a given case poses "no threat or menace to the integrity of the trial" (Craig v Harney, 331 U.S. 367, 377). Because this assumption sometimes fails, neither the public nor the press has an absolute right to attend all stages of all criminal trials (e.g., Estes v Texas, 381 U.S. 532, 538; Matter of United Press Assns. v Valente, supra, at p 81). Particularly where a fair trial may hang suspended in the balances, the Constitution should not be considered as a substitute for a sunshine law (see Public Officers Law, §§ 85-89, as amd by L 1977, ch 933; Freedom of Information Act, US Code, tit 5, § 552).
The public's right to demand access to criminal trials, let alone suppression hearings, was never intended to comprehend outside interference with orderly judicial process. The public trial concept has therefore "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, supra, at p 63; accord United States ex rel. Lloyd v Vincent, 520 F.2d 1272, 1274, cert den 423 U.S. 937). To this end, the inherent power to limit public access has become a common and integral aspect of due process in trials for particularly sensitive crimes (Judiciary Law, § 4) or, for instance, where closure is necessary to protect a witness' identity (People v Hinton, 31 N.Y.2d 71, 73, supra), or life (People v Hagan, 24 N.Y.2d 395, cert den 396 U.S. 886) or delicate emotional state (People v Smallwood, 31 N.Y.2d 750; United States ex rel. Smallwood v La Valle, 377 F. Supp. 1148, affd 508 F.2d 837, cert den 421 U.S. 920). Of course, the policies underpinning closure in these matters dictates the sealing of documents and transcripts as well (e.g., Domestic Relations Law, § 235). And in all of these cases, the remedy — legislative or judicial — has called for "a sensitive and wise balancing of the rights of the individual defendant and the interests of the public" (People v Darden, 34 N.Y.2d 177, 181-182).
Secrecy is also the rule in Grand Jury hearings for felony cases (CPL 190.25; see People v Miller, 257 N.Y. 54), professional disciplinary investigations and proceedings (Judiciary Law, § 90; see Matter of Nichols v Gamso, 35 N.Y.2d 35), matrimonial actions (Shiles v News Syndicate Co., 27 N.Y.2d 9; Danziger v Hearst Corp., 304 N.Y. 244) and Family Court proceedings (e.g., Family Ct Act, § 1043; 22 N.Y.CRR 2830.8).
In other words, we encourage accountability through public legal proceedings and the truthful reporting of whatever transpires in open court (see Civil Rights Law, § 74), but "[only] so far as that object can be attained without injustice to the persons immediately concerned" (Estes v Texas, supra, at p 542, quoting 2 Cooley's Constitutional Limitations, p 931 [Carrington ed, 1927]). Having imposed on the Trial Judge an affirmative obligation to ensure this balance (Sheppard v Maxwell, supra, at pp 352-363; Irvin v Dowd, 366 U.S. 717), it would be anomalous indeed to withhold the discretionary power necessary to achieve it.
In the case now before us, the Trial Judge was not presiding over a trial on the merits. His concern was with a suppression hearing which, of course, is "not within the specific meaning of `trial'" (People v Anderson, 16 N.Y.2d 282, 288; see Maurer v People, 43 N.Y. 1, 3; Hopt v Utah, 110 U.S. 574). The court at this stage was not yet forced to insulate an already impaneled jury from extrinsic and inadmissible evidence of guilt (see Murphy v Florida, 421 U.S. 794; Gonzales v Beto, 405 U.S. 1052; Parker v Gladden, 385 U.S. 363; Jenkins v United States, 380 U.S. 445). Its task instead was to ensure that further pretrial publicity would not impermissibly alter a defendant's status in the public eye from that of a suspected killer to that of a confessed murderer.
Before any challenged evidence could be submitted to a jury, due process required the Trial Judge to fully and independently resolve, as a matter of law, that the evidence was not obtained in violation of the fundamental constitutional rights of the accused (e.g., Miranda v Arizona, 384 U.S. 436, 467; Jackson v Denno, 378 U.S. 368, 394; Mapp v Ohio, 367 U.S. 643; People v Huntley; 15 N.Y.2d 72, 78). Knowing how damaging the introduction of this evidence could be to a defendant, and that widespread knowledge even of inadmissible evidence could nonetheless predetermine guilt (e.g., Sheppard v Maxwell, 384 U.S. 333, supra), we require the Trial Judge to ensure that tainted evidence never see the light of day (CPL 710). 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, whose credibility is the envy of many institutions (see United States v Nixon, 418 U.S. 683, 714). At their option, the defendants could have later challenged before a jury the voluntariness of their confessions. But this choice is for the accused, not the press.
Defendants Greathouse and Jones sought to invoke these constitutional norms, not by excluding the public or the press from a highly sensationalized murder trial, but rather by excluding allegedly tainted evidence of guilt. The petitioner nonetheless urges us to rule that the trial court's protective order, however well intentioned, was a nullity in the face of the media's superior right to be free from prior restraint on publication (US Const, 1st Amdt; N Y Const, art I, § 8).
To be sure, when a restraint is imposed to prevent commentary on known facts about a pending criminal case, tensions between First and Sixth Amendment rights are greatest. The Supreme Court in Nebraska Press Assn. v Stuart ( 427 U.S. 539, 570, supra) agreed that "the barriers to prior restraint remain high". In that case, a "gag order" modified by the Nebraska Supreme Court prohibited the press from reporting or commenting on judicial proceedings which had been held in open court. Reporters had attended the "public event"; they had seen and heard what transpired. To prevent dissemination of that highly prejudicial information, the State court purported to restrain all news reports of "confessions or admissions * * * and other information strongly implicative of the accused as the perpetrator of the slayings" (State v Simants, 194 Neb. 783, 801). Because "[t]hose who see and hear what transpired can report it with impunity" (Craig v Harney, 331 U.S. 367, 374, supra; see Oklahoma Pub. Co. v District Ct., 430 U.S. 308, 311; Nebraska Press Assn. v Stuart, supra, at p 568; Sheppard v Maxwell, supra, at pp 362-363), the restrictive order was subject to a "heavy presumption against" prior restraint and was ultimately condemned as "clearly invalid" (Nebraska Press Assn. v Stuart, supra, at p 570).
This, of course, does not mean that trial courts are left powerless to stem improper revelation of facts that would present an imminent threat to the impaneling of a constitutionally impartial jury. In fact, as an additional alternative to a trial court's "benign neglect" outlined in Sheppard v Maxwell (supra, at pp 357-362), the majority in Nebraska Press left open the prophylactic adopted in the case at bar — "[c]losing of pretrial proceedings with the consent of the defendant" (Nebraska Press Assn. v Stuart, supra, at p 564, n 8; see p 576, n 3; p 584, n 11 [BRENNAN, J., concurring]). Continuance, extensive voir dire examinations, limiting instructions or venue changes may prove paltry protection for precious rights (see, e.g., Jury System in America [Simon ed, 1975]). Reversals and new trials are hardly acceptable alternatives. The extent of the media's right to access should not remain unresolved, for it places in issue the very integrity of our courts.
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 (see ABA Standards Relating to the Administration of Criminal Justice, Pretrial Hearings, § 3.1, p 203 ). 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.
As the locus of public interest, this determination is to rest with the hearing Judge. Of primary consideration is the public's interest in avoiding any developments that would threaten to truncate a defendant's right to a fair trial. This concept is premised on the right to an impartial jury as the arbiter of guilt or innocence. To maintain that right, the hearing Judge must have the means to ensure that prospective veniremen do not hear matters from which, by law, they should be insulated.
This was precisely the problem confronting the hearing Judge in the case at bar. The public knew that codefendants Greathouse and Jones had been caught "red-handed" by Michigan police with fruits of the crime. And it was widely known that the defendants had made incriminating statements before being returned to this State. The details, however, were not known, and public curiosity was intense. To safeguard the integrity of its process, the court was required at the outset to distinguish mere curiosity from legitimate public interest.
In so doing, the courts should of course afford interested members of the news media an opportunity to be heard, not in the context of a full evidentiary hearing, but in a preliminary proceeding adequate to determine the magnitude of any genuine public interest. This may be found to outweigh the risks of premature disclosures. In trials involving public officials, for instance, the public may have an overwhelming interest in keeping all proceedings open.
Whereas the obligation of nondisclosure in pretrial hearings is for the purpose of insulating prospective veniremen, in certain other situations, such as those involving the identification of an informer, total preclusion from any public knowledge may be called for (cf. People v Darden, 34 N.Y.2d 177, supra; People v Goggins, 34 N.Y.2d 163).
That level of legitimate public concern was not reached in this case. Widespread public awareness kindled by media saturation does not legitimize mere curiosity. Here the public's concern was not focused on prosecutorial or judicial accountability; irregularities, if any, had occurred out of State. The interest of the public was chiefly one of active curiosity with respect to a notorious local happening. While the defendants were still in jeopardy, any true public interest could be fully satisfied, consonant with constitutional free press guarantees, by affording the media access to transcripts redacted to exclude matters ruled inadmissible during the closed suppression hearing (cf. Department of Air Force v Rose, 425 U.S. 352, 370-382). Complete transcripts were made available when the defendants' interests were no longer in jeopardy. The public's "right to know" was then compatible with the defendants' right to a fair trial.
This conclusion would ordinarily lead to a reversal inasmuch as the Appellate Division had directed full pretrial disclosure. As noted, however, since the questions presented by this appeal became moot when the pleas were entered, and the relief requested would now serve no purpose, the judgment appealed from should be modified, without costs, to the extent of dismissing the petition solely for that reason.
I dissent and vote to affirm the judgment of the Appellate Division.
While court closures may be employed at times for narrowly circumscribed purposes, in this instance invocation of this drastic remedy, without notice, without a hearing, and without substantiation of a clear and present State necessity, abridged the rights of the press to report true accounts of public proceedings and deprived the public of a free flow of information in which they have a great interest. In the absence of compelling necessity, public scrutiny of the administration of justice and the effectiveness of law enforcement agencies cannot be foreclosed.
Petitioner corporation owns and operates two dailies and a television station in the Greater Rochester area. With public attention focused upon the suspicious circumstances surrounding the mysterious disappearance of former Brighton, New York, policeman Wayne Clapp in July, 1976 and the subsequent apprehension and extradition of his alleged slayers, 21-year-old David R. Jones and his 16-year-old companion, Kyle E. Greathouse, in the State of Michigan six days later, petitioner's newspapers and television studios devoted a great deal of time, manpower and resources to report the investigation of the case and the pretrial proceedings. The notoriety of the crime was heightened by the failure of the police to recover Wayne Clapp's body from Seneca Lake where, allegedly, it had been dumped after the murder.
When, however, petitioner's reporter Carol Ritter appeared to observe the suppression hearing on November 4, 1976, both defendants, without prior notice, joined in an oral motion to exclude the press and public from the courtroom. Without insisting upon notice to the press and without directing a hearing on the application, the County Court summarily granted the application. "THE COURT: [S]ince these matters are in the nature of a Huntley hearing and suppression of physical evidence, and it is not the trial of the matter * * * [c]ertain evidentiary matters may come up in the testimony of the People's witnesses that may be prejudicial to the defendant".
On advice of counsel, petitioner's reporter requested in writing a postponement of the suppression hearing in order to afford the news media's attorneys an opportunity to appear and prepare argument against the order of closure. Upon denial, petitioner moved by order to show cause, dated November 8, 1976, to vacate the closure order so that petitioner's employees could gain access to the transcripts of the hearing. Although the court conceded, at argument on the motion, that it was regrettable that counsel for the petitioner had not been in court when the motion for closure was made, the court denied the application and adhered to its prior order. In rejecting petitioner's contention that the effect of the order was to deprive the press of its First Amendment function, the court reasoned that the case was unique, that a reasonable probability of prejudice was a consequence of the publication of the happening of the suppression hearing, and that the defendants, as movants for an order of closure, did not bear the burden of establishing prejudice.
Thereafter, petitioner commenced this article 78 proceeding in the Appellate Division, Fourth Department, to prohibit enforcement of County Court's order. The Fourth Department unanimously sustained the petition, vacated the order of closure and enjoined its enforcement, holding: "The exclusionary order entered by the County Court is not supported by a showing of compelling factual circumstances. * * * No finding was made concerning the extent of pretrial coverage in the case, the impact which the disclosures would be expected to produce, the size of the prospective jury pool in Seneca County nor as to any other matter that would indicate with a reasonable amount of certainty that the defendants could not receive a fair trial in Seneca County without a closed Huntley hearing. The closure order entered here lacks the requisite factual basis necessary to overcome the right of the public and press to open judicial proceedings" ( 55 A.D.2d 107, 110).
On appeal to this court, appellants urge that there exists a fundamental distinction between the prohibited blanket "gag" order (see Nebraska Press Assn. v Stuart, 427 U.S. 539) and a direction to close the courtroom doors. Unlike the "gag" order which bars the press from reporting matter which is otherwise open to the public, the closure order merely regulates access to information and does not prohibit dissemination of any news. The government, appellants maintain, may have no right to interpose a prior restraint on publication, but it certainly has no duty to supply the press with access to information. Further, it is urged that courts have inherent power to preserve order and decorum and to protect the rights of parties and witnesses.
To be sure, the trial court has a wide range of powers at its disposal to assure a fair trial to the parties affected, but the power to isolate judicial proceedings from the scrutiny of the public, absent compelling State necessity, is not numbered among them. "The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions * * * are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report the operations of government" (Cox Broadcasting Corp. v Cohn, 420 U.S. 469, 492; Estes v Texas, 381 U.S. 532, 541-542). In light of Nebraska Press, this court can hardly deny the media's right and obligation to report on the function of judicial tribunals. By the same token, the premise that there is any significant difference in denying access to information about a matter of public interest — upon undocumented, unproven, and conclusory allegations of possible prejudice — assumes that the right to observe an otherwise public proceeding is severable from and of less value than the right to convey information about it. Any such distinction is without substance, since the right of free expression must encompass both the freedom to convey information about a public matter and the liberty to gain access to proceedings involving the same. A closed proceeding should be recognized for what it is — a "serious backdoor threat to First Amendment interests" (Staff of Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong, 2d Sess, Free Press — Fair Trial ).
This court's recognition of an exclusion order as a general prophylactic against the influence of unknown and undocumented prejudices upon the tribunal's deliberative function suggests an almost casual acceptance of a prior burden on the freedom of the press, a burden presumptively repugnant to the ends of the First Amendment (see Bantam Books v Sullivan, 372 U.S. 58, 70). The effectiveness of such an order cannot be seriously doubted, but the right to report the news is too vital to the nature of a free State to allow the press to be stifled under the pressure of direct "gag" orders, or even more subtle means of accomplishing the same illicit end (Near v Minnesota ex rel. Olson, 283 U.S. 697, 713-714): "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government. The First and Fourteenth Amendments embody our `profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.' New York Times Co. v. Sullivan, 376 U.S. , at 270." (Garrison v Louisiana, 379 U.S. 64, 74-75 [emphasis added].) Absent compelling and overriding State necessity, the right of the public to gain information about public matters may not be infringed (Schenck v United States, 249 U.S. 47, 52; Brandenburg v Ohio, 395 U.S. 444).
The necessity for public inspection is not diminished because the proceeding is a pretrial hearing to suppress evidence illegally obtained. Suspicion enshrouds whatever determination is not freely aired in a forum open to public inspection, scrutiny and, sometimes, even scorn. The public has the right to know that the Constitution protects equally each person accused of a crime, and has the right to scrutinize the effectiveness of police agencies in coping with criminal activity. "[T]he testimony of police officers regarding police conduct which usually occurs more or less in private within an environment which the police themselves create and in which they reign, should not be given in secret" (United States ex rel. Bennett v Rundle, 419 F.2d 599, 606).
At times, the public interest may command otherwise. Thus, it has been held that necessity demands that the doors of the courtroom be closed for the protection of undercover agents (People v Hinton, 31 N.Y.2d 71, 74; People v Hagan, 24 N.Y.2d 395; People v Garcia, 51 A.D.2d 329, affd 41 N.Y.2d 861; United States ex rel. Lloyd v Vincent, 520 F.2d 1272, 1274, cert den 423 U.S. 937), for the protection of witnesses who might be unduly inhibited from or embarrassed by relating the substance of their testimony in front of an audience (People v Jelke, 308 N.Y. 56, 63; People v Hall, 51 App. Div. 57; Cook, Constitutional Rights of the Accused: Trial Rights, § 101), and for the preservation of public sensibilities (Matter of Oliver v Postel, 30 N.Y.2d 171, 179; Matter of United Press Assns. v Valente, 308 N.Y. 71; People v Jelke, supra; see, also, People v Nicholas, 35 A.D.2d 18). However, under these circumstances, closure does not contemplate the isolation of the tribunal from its milieu to diminish the possible effects of feedback from the community upon the ultimate disposition. Rather, it seeks to protect the actors in the controversy from personal repercussions which the law deems serious enough to warrant extraordinary precaution or, in the case of matter offensive to public sensibility, to preclude dissemination under a judicial aegis of unlawful material in which, ab initio, the general public has no legitimate interest. Nevertheless, "any claim of practical justification for a departure from the constitutional requirement of a public trial must be tested by a standard of strict and inescapable necessity" (United States ex rel. Bennett v Rundle, 419 F.2d 599, 607, supra; United States ex rel. Lloyd v Vincent, 520 F.2d 1272, 1274, cert den 423 U.S. 937, supra; People v Devine, 80 Misc.2d 641, 644).
The guidelines expressed by the majority signal the common, if not certain, locking of the courtroom door virtually whenever requested in pretrial hearings. To allow closure on the mere showing that press commentary would "threaten" the impaneling of an impartial jury (p 380) affords almost no protection to First Amendment rights for the simple reason that in cases of notoriety it will always be possible to show some risk of prejudice. Of greater concern, however, is that the majority has turned the burden of proof around. In Nebraska Press Assn. v Stuart ( 427 U.S. 539, supra), the Supreme Court commented that "[t]he record demonstrates, as the Nebraska courts held, that there was indeed a risk that pretrial news accounts, true or false, would have some adverse impact on the attitudes of those who might be called as jurors" (427 US, at pp 568-569 [emphasis added]). Nevertheless, the court concluded that a sufficient showing had not been made that "alternatives to a prior restraint on petitioners would not have sufficiently mitigated the adverse effects of pretrial publicity so as to make prior restraint unnecessary" (at p 569). In so determining, however, the court reasoned that "our conclusion is not simply a result of assessing the adequacy of the showing made in this case; it results in part from the problems inherent in meeting the heavy burden of demonstrating, in advance of trial, that without prior restraint a fair trial will be denied" (at p 569). In contrast, the majority here instead of demanding a heavy burden of showing that alternatives to closure cannot insure a fair trial, requires a determination of the "magnitude of any genuine public interest" (p 381). This presumes that the press should be excluded and discourages use of alternatives to closing the courtroom. In effect, this procedure suggests that any pretrial publicity automatically produces an unfair trial — a proposition expressly rejected by the Supreme Court (see 427 US, at p 565).
By acceding to defendants' motion for closure in this instance, the County Court exceeded its very limited power to exclude the press and public and overlooked a clear command to preserve the right to a fair trial at a less drastic cost than shutting off channels of legitimate public information. Although the right of the defendant to a jury unbiased by the determination at the Huntley hearing has been repeatedly recognized in the courts (e.g., Lego v Twomey, 404 U.S. 477, 483-486; Pinto v Pierce, 389 U.S. 31; Jackson v Denno, 378 U.S. 368; People v Huntley, 15 N.Y.2d 72; People v Hulett, 28 A.D.2d 624, affd 22 N.Y.2d 696, cert den 393 U.S. 1097; People v. Brainard, 56 A.D.2d 633; People v Higgins, 28 A.D.2d 1016; People v. Cornell, 28 A.D.2d 1166; People v Pratt, 27 A.D.2d 199) here County Court dictated a draconian measure without proof of abject necessity. Before resorting to this ultimate restriction, the trial court was obliged to exercise "ability and ingenuity * * * to devise appropriate steps, within constitutional limits, to protect a defendant in his right to a fair trial" (Matter of New York Times Co. v Starkey, 51 A.D.2d 60, 66 [concurring opn, SHAPIRO, J.; emphasis added]; see, also, Matter of Hearst Corp. v Cholakis, 54 A.D.2d 592, 593). Mere threatened prejudice cannot be a basis for the court's indulgence in a self-executing order which prevents the free flow of vital information to a willing public when the interests of the defendant in a fair trial, untainted by a juror's knowledge of inadmissible evidence, can be preserved through the traditional means of detecting, identifying and dispelling prejudice through mechanisms which the law has created and which do not impede the flow of information. Unless the party demanding the invocation of the extraordinary practice of excluding the public at large can demonstrate that the effective employment of the time-tested methods — venire, continuance, instructions, admonitions to witnesses, and parties and counsel, sequestration of the jury, or change of venue — would be to no avail in the neutralization of potential sources of prejudice, the courts should not deprive the public of the vital function of the press nor abridge the fundamental interests protected by the First Amendment (Nebraska Press Assn. v Stuart, 427 U.S. 539, 569, supra; see, also, concurring opn of Mr. Justice POWELL, at p 571; Branzburg v Hayes, 408 U.S. 665, 685; Sheppard v Maxwell, 384 U.S. 333, 362-363).
It is no answer to suggest that the right to a public trial is waivable at the option of the accused. As the right of a public trial knows no correlative right to a private one (see Singer v United States, 380 U.S. 24, 34-35; Cook, Constitutional Rights of the Accused: Trial Rights, § 103), such a waiver cannot automatically close the court. "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 * * * to suppress, edit, or censor events which transpire * * * before it" (Craig v Harney, 331 U.S. 367, 374).
Accordingly, the judgment of the Appellate Division should be affirmed.
Chief Judge BREITEL and Judges JASEN and JONES concur with Judge WACHTLER; Judge COOKE dissents and votes to affirm in a separate opinion in which Judge FUCHSBERG concurs; Judge GABRIELLI taking no part.
Judgment modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.