Argued March 27, 1980
Decided July 3, 1980
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Peter L. Danziger for appellants. Robert G. Lyman, County Attorney (William J. Conboy, II, of counsel), for John J. Clyne, respondent.
Sol Greenberg, District Attorney (George H. Barber of counsel), for Sol Greenberg, respondent. Robert C. Bernius for Binghamton Press Company, Inc., and others, amici curiae.
The petitioners in this article 78 proceeding are the publisher of the Albany Times-Union, a daily newspaper, and Shirley Armstrong, a reporter for that newspaper. The respondent, John J. Clyne, is a Judge of the Albany County Court.
In March of 1979 Judge CLYNE was conducting a joint suppression hearing in the criminal case of Alexander Marathon and William Du Bray, who had been indicted for the crimes of robbery in the first degree, burglary in the first degree and grand larceny in the second degree. The hearings were closed to the public and press on the motion of the defendants, without objection by the prosecutor and without a hearing. Armstrong, the court reporter for the Times-Union, knew the hearings were closed and the courtroom doors locked, but was sufficiently interested in the proceedings to periodically walk by the courtroom to observe whatever she could.
On March 7, during one of these periodic observations, Armstrong noticed the attorney for Du Bray, one of the codefendants, standing outside the courtroom door. On the assumption that something other than a suppression hearing was in progess Armstrong tried the courtroom door but found it locked. She then learned from Du Bray's attorney that Judge CLYNE, behind closed doors, had heard and granted a motion to close a proceeding during which Marathon was expected to enter a plea. The reporter, Armstrong, then knocked on the courtroom door. There was no response. After about 15 minutes the doors opened and she learned from Judge CLYNE that Marathon had indeed entered a guilty plea. The Judge, however, refused petitioners' request for a transcript of the plea proceeding or to direct the court stenographer to read back the minutes of the proceeding.
On March 12, prior to trial, the other defendant, Du Bray, also entered a plea of guilty before Judge CLYNE. Thereafter Judge CLYNE permitted the petitioners to obtain a copy of the transcript of the closed plea proceeding; that transcript has now been furnished to them and forms a part of the record on this appeal.
The transcript of the closed proceeding held March 7, which is the sole concern of this appeal, indicates that at the very commencement of the already closed suppression hearing which had been adjourned from March 5, Marathon's attorney orally moved to close the courtroom to all persons except Marathon, his attorney, and court personnel. The District Attorney joined the motion. Without taking evidence or hearing argument from anyone Judge CLYNE immediately granted the motion, even excluding the codefendant Du Bray and his attorney from the courtroom, and had the doors secured. In sworn testimony Marathon then confessed his own participation in the crime for which he was indicted, inculpated his codefendant Du Bray, and was permitted to enter a plea of guilty to one count of the indictment.
The petitioners brought this proceeding seeking a declaration that the closure of the plea taking was illegal, and for an injunction prohibiting such closures in the future unless members of the press are afforded an opportunity to be heard.
The Appellate Division concluded that the closure was a proper exercise of the trial court's discretion and dismissed the petition. Petitioners appealed. We conclude that the case is moot and that there is no sufficient reason for this court to consider the merits of the appeal; however, for the reasons which follow, the order of the Appellate Division should be reversed and remitted for dismissal.
It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal (Matter of State Ind. Comm., 224 N.Y. 13, 16; California v San Pablo Tulare R.R., 149 U.S. 308, 314-315). This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary.
Our particular concern on this appeal is with that facet of the principle which ordinarily precludes courts from considering questions which, although once live, have become moot by passage of time or change in circumstances. In general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment. On the facts of the instant case, where the underlying plea proceeding had been long concluded and the transcript had been furnished to the petitioners at the time this action was commenced (cf. Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 436) we conclude that the rights of the parties cannot be affected by the determination of this appeal and it is therefore moot. Because we conclude that the appeal is moot it may not properly be decided by this court unless it is found to be within the exception to the doctrine which permits the courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable (see Roe v Wade, 410 U.S. 113, 125).
In this court the exception to the doctrine of mootness has been subject over the years to a variety of formulations. However, examination of the cases in which our court has found an exception to the doctrine discloses three common factors: (1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues. After careful review we are persuaded that the case before us presents no questions the fundamental underlying principles of which have not already been declared by this court, and that this case is, therefore, not of the class that should be preserved as an exception to the mootness doctrine.
"[N]ovel and important question of statutory construction" (Le Drugstore Etat Unis v New York State Bd. of Pharmacy, 33 N.Y.2d 298, 301); "of a character which is likely to recur not only with respect to the parties before the court but with respect to others as well" (East Meadow Community Concerts Assn. v Board of Educ., 18 N.Y.2d 129, 135); "only exceptional cases, where the urgency of establishing a rule of future conduct is imperative and manifest will justify a departure from our general practice" (Matter of Lyon Co. v Morris, 261 N.Y. 497, 499); question of "importance and interest and because of the likeliness that they will recur" (Matter of Jones v Berman, 37 N.Y.2d 42, 57); "question of general interest and substantial public importance is likely to recur" (People ex rel. Guggenheim v Mucci, 32 N.Y.2d 307, 310); question "of major importance and [that] will arise again and again" (Matter of Rosenbluth v Finkelstein, 300 N.Y. 402, 404); questions of "general interest, substantial public importance and likely to arise with frequency" (Matter of Gold v Lomenzo, 29 N.Y.2d 468, 476); "importance of the question involved, the possibility of recurrence, and the fact that orders of this nature quickly expire and thus typically evade review" (Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 437); "crystalizes a recurring and delicate issue of concrete significance" (Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, 376).
We acknowledge, as we have before, the very substantial character of the interests represented by the petitioners in this proceeding. We also note that questions such as the one posed may occasionally escape review. It is for this reason that on occasion we have entertained appeals even though the issues in the particular controversy have been resolved. However, as our court only recently has set forth in some detail the requirements that must be fulfilled before a judicial proceeding in this State may be closed to the public and press, no sufficiently useful purpose would be served in this instance by our retaining the appeal notwithstanding that the underlying controversy is now moot.
It has, of course, long been the law in this State that all judicial proceedings, both civil and criminal, are presumptively open to the public (Judiciary Law, § 4; Lee v Brooklyn Union Pub. Co., 209 N.Y. 245) and that a proceeding at which a criminal defendant enters a plea of guilty is indisputedly a substitute for a trial (People ex rel. Carr v Martin, 286 N.Y. 27, 32). Indeed, in Matter of Gannett Co. v De Pasquale ( 43 N.Y.2d 370) it was only by distinguishing the pretrial and evidentiary nature of the proceeding at issue that this court could conclude that such a proceeding should ordinarily be closed to the public and press (Gannett, supra, at p 380). We were careful to note in Gannett (at p 378) that, "In the case now before us, the Trial Judge was not presiding over a trial on the merits".
In Matter of Westchester Rockland Newspapers v Leggett, ( 48 N.Y.2d 430, supra), which was decided by this court after the decision of the Appellate Division in the instant case and which was obviously not available to inform either the trial or the appellate court, the issue was closure of a pretrial competency hearing. In that case even the pretrial nature of the proceeding was considered insufficient to nullify the presumption that all judicial proceedings are to be open. Thus the dissent is flatly incorrect in its statement that by dismissing this appeal for mootness we are disposed to permit trials to be closed to the public on the same basis as pretrial proceedings. On the contrary, we have distinguished between pretrial and trial closures and expressed our consciousness of the danger inherent in permitting too casual a closure of even pretrial proceedings: "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" (Matter of Westchester Rockland Newspapers v Leggett, supra, at p 440).
Our decisions in Gannett (supra) and Leggett (supra) laid down the procedural framework within which the possibility of closure must be considered. We conclude, therefore, that inasmuch as the principles governing fair trial-free press issues which might have been developed by consideration of the instant case have already been largely declared by our decisions in Gannett and Leggett, in this instance there is no sufficient reason to depart from the normal jurisprudential principle which calls for judicial restraint when the particular controversy has become moot.
In Gannett we stated that in determining the propriety of closure in a particular case the court "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" ( 43 N.Y.2d 370, 381). That precatory language in Gannett was the foundation for the mandate of Leggett (supra, at p 442) which spelled out in as much detail as a common-law court may, the procedure to be followed by a trial court which is confronted with a request for closure of a criminal proceeding.
More than that, we are convinced that there is a good reason in the circumstances of this case not to entertain this appeal for the purpose of extrapolating or refining the principles which we have declared. The closing of the plea hearing here occurred while the appeal from our Gannett decision was pending before the United States Supreme Court and some months before our decision in the Leggett case. We cannot conclude that the trial court would have followed the procedures which he did or that he would necessarily have reached the same conclusion had our decision in Leggett preceded the hearing. While we can anticipate that the implementation of the principles that we have declared will not always be easy, we have no reason to question the readiness or capacity of the Judges at nisi prius to seek to implement them appropriately with diligence, faithfulness and imagination. We conceive our jurisprudential role in this field as one of supervising and monitoring the dispositions made by our lower courts after we declare the applicable principles, rather than retrospectively appraising conduct of Trial Judges that preceded our declarations.
We also note that the appeal in Richmond Newspapers v Virginia (448 U.S. ___, 48 USLW 3241) is now pending before the Supreme Court.
Other considerations also support our conclusion that this appeal should not be entertained. We are concerned with the vitality and fundamental soundness of our jurisprudence.
The engine of the common law is inductive reasoning. It proceeds from the particular to the general. It is an experimental method which builds its rules in tiny increments, case-by-case. It is cautious advance always a step at a time. The essence of its method is the continual testing and retesting of its principles in "those great laboratories of the law, the courts of justice" (Smith, Jurisprudence, p 21).
(Cf. Cardozo, The Nature of the Judicial Process, p 25: "This work of modification is gradual. It goes on inch by inch. Its effects must be measured by decades and even centuries. Thus measured, they are seem to have behind them the power and pressure of the moving glacier.")
Conscious judicial restraint is essential — its absence diminishes the craftsmanship of the courts and debases the judicial product. A common-law Judge will not reach to decide a question not properly before him. Nor will he attempt to state a broad rule except when absolutely required — and then it will be cast in terms which permit it to be moulded in light of the experience of those who must work with it. A newly articulated rule should not be immediately recast "for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible" (Smith, Jurisprudence, p 21).
Finally, it must be explicitly stated that in dismissing the present appeal as moot we express no view on the merits. Our disposition here is not to be read as any withdrawal from, addition to, or elaboration on our opinions in Gannett and Leggett. It is entirely incorrect to suggest otherwise. Nor should our dismissal be interpreted as presaging a disposition to decline on grounds of mootness to entertain appeals in future fair-trial, free-press cases. We recognize, of course, that cases in this area of the law, because of considerations of timing, would often, even usually, evade review if appeals were uniformly to be dismissed for mootness. We shall continue to resolve each case in this field on the basis of its individual characteristics and merits, only one aspect of which will be its mootness, if moot it is.
Concluding as we do that the appeal is moot and not of a character which should be preserved for review, the appeal should be dismissed. In this case, however, because the Appellate Division had no opportunity to consider the matter in light of our decision in Leggett (supra) we should reverse and remit with directions to dismiss solely on the ground of mootness, in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences or precedent (see Matter of Adirondack League Club v Board of Black Riv. Regulating Dist., 301 N.Y. 219, 223; cf. United States v Munsingwear, 340 U.S. 36, 39; United States v Alaska S.S. Co., 253 U.S. 113, 115).
I concur fully in Judge WACHTLER'S opinion and write only because where the dissent finds implications in that opinion which "do not bode well for the future of public trials in this State" (p 723), I find in the dissent suggestions which, if they become the governing rule, may adversely affect the individual's right to a fair trial.
I, of course, do not suggest that the media are to be regularly, or even often, excluded from the courtroom. What I am urging is that the problem must be analyzed not in terms of categories and classifications but of the rights affected, and that, without a very much clearer demonstration that the public's interest cannot be reasonably protected without infringing individual rights than has been made, the rights of the individual on trial may not be subordinated to the rights of the public to know what goes on in a courtroom or how the system of justice is functioning.
The genius of the American constitutional experiment has been the protections it affords individuals against oppression by the majority, whether in the form of star chamber proceedings or of stadium trials, the result of either of which is an equally foregone conclusion. Important as it is that justice appear to the public to be done, in final analysis the public is grossly disserved if it not in fact be done in each individual case.
Resolution of the instant case, were it to be decided on the merits, would turn not on whether the taking of a guilty plea is the equivalent of a trial or more nearly a preliminary proceeding, or whether the fair trial rights at stake were those of the pleading defendant or his codefendant. The fact is, as both we and the United States Supreme Court have recognized, that there are occasions when parts of trials, as well as of pretrial proceedings, may constitutionally be closed (Gannett Co. v De Pasquale, 443 U.S. 368, 388, n 19, and cases cited; People v Jones, 47 N.Y.2d 409; Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, 377-378, affd 443 U.S. 368), though as we have made clear the discretion to do so is to be "sparingly exercised and then, only when unusual circumstances necessitate it" (People v Hinton, 31 N.Y.2d 71, 76; accord: Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 441). Closure during trial, moreover, will usually be to protect some interest of a third person or the public, rather than of the person on trial (to protect the public interest in not revealing the identity of an informer, People v Jones, supra; People v Hinton, supra; see Proposed Code of Evidence for the State of New York, § 510; to protect the life of a witness or shield him or her from embarrassment, People v Hagan, 24 N.Y.2d 395, cert den 396 U.S. 886; 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; see Judiciary Law, § 4; to protect the interests of the defendant and the public in orderly trial, United States ex rel. Orlando v Fay, 350 F.2d 967).
Hearings preliminary in nature (e.g., suppression) are sometimes permitted during trial. For purposes of present discussion they should be classed as preliminary, but as indicated in the text the difference is not determinative. What is determinative is the effect on individual rights of what will be revealed.
Nor can I accept the dissent's assumption that there is an "absence of prejudice" to codefendant Du Bray in permitting Marathon's guilty plea to be taken in open court. Short of publishing a confession by Du Bray before it has been ruled admissible, nothing could be more devastating to his rights than Marathon's accusatory words. Given in a plea proceeding, such words are usually the quid pro quo for some favor of the law, generally a lesser sentence. To permit such information to get to potential jurors without the prophylaxis of cross-examination pointedly indicating the self-serving nature of the accusation is materially to disadvantage such a codefendant, for cross-examination when it does occur will be less effective than it would have been had the accusation not come to the jury in advance of trial and with the imprimatur of the press. It is possible to disadvantage such a codefendant in an additional way which cannot be known before trial. It is not unknown for a person in Marathon's position to recant when called to testify at his codefendant's trial. In such a case his statement about the codefendant at his own guilty plea "may be received only for the purpose of impeaching" him "and does not constitute evidence in chief" (CPL 60.35, subd 2). While the Trial Judge must so instruct the jury (id.), such an instruction, of questionable psychological value in any event, will be even less effective than usual because the accusation came to the jury in advance of trial and with the imprimatur of the press.
For Mr. Justice JACKSON that such an instruction could overcome the prejudice involved was a "naive assumption" which "all practicing lawyers know to be unmitigated fiction" (Krulewitch v United States, 336 U.S. 440, 453 [concurring opn]; see, also, Bruton v United States, 391 U.S. 123, 128-136; Jackson v Denno, 378 U.S. 368, 388; Kalven Zeisel, American Jury, p 128).
The problem that arises when the issue is discussed in terms of categories rather than effect on individual rights is well illustrated by the present case. The dissent sees the closure here involved as casting "a veil of secrecy over the major component of the criminal justice system" (p 728) and the fact that the pleading defendant might implicate his codefendant as insufficient justification for closure (p 727). In my view there is a ready means of protecting the public's interest in the Marathon-Du Bray trials without sacrificing Du Bray's clear right not to have the jury pool for his trial, scheduled to begin a few days later, tainted by media accounts of Marathon's plea statements implicating him, and the number of plea proceedings in which, to protect the rights of a codefendant, closure of part or all of the plea proceeding might occur is an insignificant part of the criminal justice system. So far as the record and briefs reveal (including the brief of amici which catalogues a number of recent closures) this is the first such case.
The tension between public and individual interests that arises over an issue such as whether by closing so much of a plea proceeding as relates to him a codefendant should be protected against revelation in advance of his trial of the pleading defendant's accusations against him, arises not because of the presence of media representatives in the courtroom, but because it is a constitutional absolute that what transpires in open court is public property and may be immediately disseminated. Responsible media often will delay publication nonetheless, but quite properly are unwilling to permit the invasion of First Amendment rights that would be involved in permitting the courts to tell them when they can publish. Yet, just as not all Judges are exemplars of their craft, neither are all editors able to perceive in their highly competitive profession the value to individual rights of delaying publication. The antidote for the nonexemplary Judge is to keep courtrooms open to the fullest extent consistent with individual rights. The antidote for the unresponsive or irresponsible editor is to close the courtroom when there is a real probability that publication of what is to be revealed in the courtroom will materially prejudice the defendant on trial, because in no other constitutionally acceptable way can his rights be protected.
That effective news reporting is possible notwithstanding delay is clear from the New York Times' handling of the Franzese case (United States v Franzese, 392 F.2d 954, vacated in part and remanded sub nom. Giordano v United States, 394 U.S. 310). In that case the Times honored the Trial Judge's request and withheld until conclusion of the trial reporting on what occurred in the courtroom out of the presence of the jury. It then printed a roundup story concerning the trial, including the material earlier withheld (New York Times, March 4, 1967, p 28, cols 4-8).
I, of course, do not ignore the existence of procedures such as change of venue, change of venire, continuance, waiver of jury, sequestration, some of which are discussed by the Supreme Court in Nebraska Press Assn. v Stuart ( 427 U.S. 539, 563), as alternatives to prior restraint. But I cannot accept the concept that these possibilities, most of which involve denigration of defendant's constitutional protections are acceptable alternatives (cf. Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 444, supra; Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, 380, affd 443 U.S. 368, supra).
Sequestration is the exception, but it involves a potential of jury resentment at being locked up for the duration of the trial which makes it likewise unacceptable as an alternative (cf. Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 444, supra).
In my view the Bills of Rights set forth in article I of the New York State Constitution and the first 10 amendments to the United States Constitution become a mockery when, because of publicity, a court must say to a man on trial for his life or for his liberty, you are entitled to a speedy trial, but not yet. You are entitled to trial by a jury, unless you fear that pretrial publicity has so adversely affected the impartiality of those who will be called as potential jurors that you dare not risk the result. You are entitled to a trial by a jury of your neighbors, but not those nearby. You are entitled to confront and cross-examine witnesses, but not those whose testimony is given through the newspapers. You are entitled to exclude improperly seized matter from the jury as evidence, but not as a news story. The more is this so when what we deal with is not prior restraint on publication as in Stuart, but denial of access for a limited time as to a limited part of the proceeding, and when we impose upon the defendant seeking closure not only the burden of showing that such procedures will not "dispel prejudice", but also what impact the prejudicial information will have on the jury pool, in light of its size, the extent of the media coverage and the effect of that coverage on the public at large (see Matter of Westchester Rockland Newspapers v Leggett, supra, at p 447 [COOKE, Ch. J., concurring]). Bearing in mind that "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" (ibid., at p 444 [WACHTLER, J., majority opn]), I conclude that the required showing presses to the outer limits of, if it does not exceed, due process requirements for all but the wealthy defendant.
Delayed access does not affect the rights of the public or of the media in any similar way. As suggested in Gannett (43 N.Y.2d, at p 381) and ordered in Westchester Rockland Newspapers ( 48 N.Y.2d, at p 445), a full transcript of the plea proceeding in this matter was made and was furnished to appellant as soon as the danger to Du Bray's interest was past. Perhaps consideration should be given to (1) equipping one courtroom in each courthouse with videotape equipment so that any closed portion of a trial or pretrial proceeding can be recorded in a way that will make available to the media with all the nuances of voice and gesture exactly what transpired while the courtroom was closed, (2) requiring that any closed proceeding be held in that courtroom and videotaped in its entirety, (3) putting the operation of the videotape equipment and the retention of the tapes in the hands of a public commission independent of the courts or other members of the criminal justice system and subject to court order only as to time of release, which would, in any event, be required to be not later than a few days after the trial of defendant or a codefendant ends (cf. Uniform Rules of Criminal Procedure, rule 714, 10 ULA 317). Though no objective evidence of which I am aware indicates the need for the procedure suggested, I recognize the importance of assuring our citizens that the judicial process is above suspicion, and believe any resulting inconvenience to the system to be more than offset if we thereby assure the constitutional rights of individuals accused.
Use of the suggested procedure together with the preliminary hearing mandated by the Gannett and Westchester Rockland Newspapers cases will preserve both the rights of the public (and the media in the interest of the public) to the free flow of information about the courts and the "most fundamental of all freedoms," the right of an accused individual to a fair trial.
(Estes v Texas, 381 U.S. 532, 540: "We have always held that the atmosphere essential to the preservation of a fair trial — the most fundamental of all freedoms — must be maintained at all costs.")
A majority of the court today in effect sanctions the exclusion of the public and the press from a guilty plea proceeding in a criminal case. Because closure of a plea proceeding is tantamount to closure of a trial itself, and because the tacit implications of the court's decision do not bode well for the future of public trials in this State, I must respectfully dissent.
It should never be forgotten that the concept of a public trial has its genesis in concern for protection of the accused (see People v Hinton, 31 N.Y.2d 71; Gannett Co. v De Pasquale, 443 U.S. 368, 406 [BLACKMUN, J., concurring and dissenting]).
The present article 78 proceeding stems from a criminal proceeding in Albany County. In September of 1978, Alexander Marathon and William Du Bray were indicted for the crimes of robbery in the first degree, burglary in the first degree and grand larceny in the second degree. Although the case did attract media attention, the publicity does not appear to have been substantial. Nonetheless, when a joint suppression hearing was convened on March 5, 1979, defendants moved for exclusion of the public. The court granted the motion, without objection by the prosecutor, and without conducting a hearing, and ordered the doors to the courtroom locked.
During the course of the closed suppression hearing, defendant Marathon decided to enter a guilty plea. While the courtroom was still locked, and the public and reporters barred, Marathon's counsel moved to close the courtroom during the plea proceeding. The District Attorney joined in the motion, and the Judge again ordered closure, stating only that "In the exercise of discretion and in the interests of justice, I will close the courtroom at this time to all non-Court personnel". Later the court explained that it closed the plea proceeding because it was likely that Marathon would implicate Du Bray, rendering it difficult to select an impartial jury when Du Bray came to trial.
Petitioner Armstrong, a reporter for the Albany Times-Union, was aware of the closed suppression hearing, and allegedly made periodic checks of the courtroom where she believed the hearing was being conducted. She first learned of the closed plea proceeding from the attorney for Du Bray, who was excluded from the proceeding and was standing outside the courtroom.
Ms. Armstrong visited the Judge in his chambers, and he confirmed that a guilty plea had been entered. The Judge indicated that a transcript of the proceeding would be available in a few days, but denied Ms. Armstrong's request to have the stenographer read the minutes to her. The next day, petitioners delivered a letter to the Judge protesting the closure and requested either an immediate transcript or an order directing the court reporter to relate the minutes of the proceeding. This request was denied.
On the following Monday, Du Bray entered a plea of guilty. Ms. Armstrong was then permitted to purchase a copy of the minutes taken at Marathon's plea. Shortly thereafter, this proceeding was instituted.
At the outset, I cannot agree that the proceeding should be dismissed for mootness. As the court has but recently reaffirmed regarding closure orders, "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" (Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 436-437). By now rejecting this exception to the mootness doctrine, the majority has provided a precedent to effectively insulate closure orders from legal challenge. Indeed, since we have previously cautioned trial courts against staying the criminal proceeding while collateral review of a closure order proceeds (Matter of Merola v Bell, 47 N.Y.2d 985, 987-988), the closure order will be moot and evade review in all but the rarest of instances.
No persuasive reason has been given for now overruling the mootness exception for closure orders so recently recited and recognized in Matter of Gannett Co. v De Pasquale ( 43 N.Y.2d 370, affd 443 U.S. 368) and Westchester Rockland. Indeed, the majority furnishes no explanation whatsoever as to why the mootness exception applied in those cases falls short of reaching the situation in this matter, but notes somewhat cryptically that future cases may or may not be moot. Perhaps more unsettling is the absence of guidelines by which to evaluate mootness in these proceedings. If the court is unwilling to apply the mootness exception here, where a novel and not insubstantial issue is presented, it is difficult to predict when the exception will again be invoked. Such ad hoc, unexplained decision making is not in harmony with the best interests of our system of jurisprudence.
As the majority correctly notes, the mootness exception recognized in Gannett and Leggett applies in instances where an important issue is capable of recurring while evading review (Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 436-437, supra; Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, 376, supra; see Matter of Carr v New York State Bd. of Elections, 40 N.Y.2d 556, 559; see, also, Matter of United Press Assns. v Valente, 308 N.Y. 71, 76). Since Leggett presented an issue substantially similar to Gannett, the retention of jurisdiction in Leggett apparently represents a policy decision by the court to continue to apply the mootness exception in closure cases. Alternatively, the court may have viewed Leggett as presenting a novel question, even after Gannett. Under either rationale, the mootness exception applies here.
Nor do I agree that the "principles governing fair trial-free press issues * * * have already been largely declared by our decisions in Gannett" (majority opn, at p 716) and in Westchester Rockland Newspapers v Leggett (supra, at pp 439-442). Undoubtedly, Westchester Rockland and Gannett establish the procedural and substantive rules to be followed when dealing with a motion to close pretrial proceedings. Those guidelines do not cover the situation here, as a guilty plea proceeding is simply not pretrial in nature. Rather, it is a substitute for and the legal and practical equivalent of the trial itself. A plea of guilty establishes "guilt of the crime charged as incontrovertibly as a verdict of a jury upon a trial" (People ex rel. Carr v Martin, 286 N.Y. 27; see, e.g., People v Krennen, 264 N.Y. 108, 109; People ex rel. Hubert v Kaiser, 206 N.Y. 46, 53). The plea is in itself a conviction (e.g., People v Jones, 44 N.Y.2d 76, 82-83, citing Boykin v Alabama, 359 U.S. 238). "Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence" (Kercheval v United States, 274 U.S. 220, 223). Thus, by stating that Westchester Rockland and Gannett are controlling, the court is effectively holding that trials may be closed to the public on the same basis as pretrial proceedings.
And the court may not sidestep this significant issue by merely asserting that Westchester Rockland recognized a distinction between trial and pretrial proceedings, for the fact remains that Westchester Rockland articulated substantive standards for only pretrial proceedings. Today's decision must be construed as indorsing the application of those same standards to trial closures, and thereby sustaining the constitutionality of excluding the public and press from a trial itself. The fallacy in this holding is demonstrated by the Supreme Court's retention of jurisdiction — at least for the present — in a case where the trial was closed to the public (Richmond Newspapers v Virginia, 448 U.S. ___, 48 USLW 3241). That action signals a strong possibility that the closing of a trial presents a substantial Federal constitutional question, even after Gannett upheld pretrial closure. It is thus difficult to fathom the majority's efforts to avoid a question with such momentous constitutional and societal impact.
It is also difficult to understand how the majority can find this proceeding moot and yet effectively rule on the merits of the trial closure. By finding Westchester Rockland controlling, as discussed, the majority has held that a trial may constitutionally be closed, in instances not previously permitted.
This is especially disturbing because the rationale for excluding the public from pretrial proceedings does not justify closure of plea hearings. This court has a number of times reviewed the serious conflict which gave rise to the pretrial closure controversy. On the one hand, the public is possessed of a right to open judicial proceedings. Not only is this right deeply rooted in our history (Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 445, supra [concurring opn]), but it is mandated by the clear long-standing command of the Legislature: "[t]he sittings of every court within this state shall be public, and every citizen may freely attend the same" (Judiciary Law, § 4). At the same time, there are instances, however rare, where pretrial publicity may effectively destroy the accused's right to a fair trial (see Sheppard v Maxwell, 384 U.S. 333). The precise point at which the public right to know must give way to the defendant's right to a fair trial has and will continue to spark lively debate (compare Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 443-444, with id., at pp 445-448, supra).
The two are not the same but are separate and distinct and they do not mix or merge. A justifiable closure of the suppression hearing did not envelop the plea for by nature and law there was a cessation of the former before the initiation of the latter.
In People v Hinton ( 31 N.Y.2d 71, supra), it was well stated at page 73: "Public trials, of necessity, serve a twofold purpose. They safeguard an accused's right to be dealt with fairly and not to be unjustly condemned * * * and concomitantly serve to instill a sense of public trust in our judicial process by preventing the abuses of secret tribunals as exemplified by the Inquisition, Star Chamber and lettre de cachet * * *. Not only the defendant himself, but also the public at large has a vital stake in the concept of a public trial."
But we can all agree as to the possible source of the potential prejudice at pretrial suppression hearings. Because the very purpose of such proceedings is to determine the admissibility of evidence, they "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" (Matter of Westchester Rockland Newspapers v Leggett, supra, at p 439). If the hearing is open, and the case is well publicized, it is possible that the evidence will be disclosed to potential jurors but ultimately excluded from use at trial. This could subvert the very purpose of the hearing.
By contrast, none of these possible dangers attend when the plea proceeding is opened to public view. Given a defendant's voluntary decision to admit his guilt in open court, and the fact that the plea proceeding will quickly ripen into a conviction, the possibility of a defendant's rights being impaired by the presence of the public and the press is almost nonexistent. And, even if it be assumed that concern for a codefendant's rights would ever warrant closure of a plea, the mere fact that the pleading defendant might implicate his cohort is insufficient justification. It is true, of course, that the defendant's statements at the plea, if they implicate the codefendant, would be prejudicial. But all evidence which suggests guilt is highly prejudicial. This does not mean that all inculpatory evidence must be enjoined from pretrial disclosure. The narrow rationale for considering closure of the suppression hearing is that the damaging evidence may prove to be inadmissible at trial. There is no reason to suppose that the evidence uncovered at a plea hearing would be inadmissible at the later trial of a codefendant. Indeed, more often than not, the defendant who pleaded can probably be expected to testify at the codefendant's trial — possibly for the prosecution, possibly for the defense. It follows that there is no ipso facto basis for overriding the command of section 4 of the Judiciary Law with respect to plea proceedings.
In addition to the absence of prejudice, the public has a compelling stake in open plea proceedings. "Publicity, not secrecy, in arraignment, plea and judgment is part of our tradition" (Matter of Rudd v Hazard, 266 N.Y. 302, 307). Especially in modern times, when guilty pleas account for most criminal dispositions, it is particularly egregious to close the courtroom doors on these proceedings. In some areas of the State, guilty pleas make up three fourths of all criminal dispositions (Twenty-Second Ann Report of N Y Judicial Conference, 1977, p 56). And, in any calendar year, guilty pleas may constitute 90-95% of all convictions obtained State-wide (see id., at p 58). To exclude the public from plea proceedings of codefendants is thus to exclude the public from the workings of a substantial part of the criminal justice system.
Even more troubling is the possibility of closure of a plenary trial where one defendant is to be tried separately from and before his codefendant.
The beneficial aspects of an open criminal justice system have been often enough discussed to need no repetition here (see, e.g., Gannett Co. v De Pasquale, 443 U.S. 368, 407, 421-422, 427-433, supra [BLACKMUN, J., concurring and dissenting]; Friendly, Crime and Publicity; Note, The Right to Attend Criminal Hearings, 78 Col L Rev 1308). But it would not be amiss to note that if the plea is insulated from public view, the public may be deprived of their most effective method of determining whether elected officials are enforcing the law "with vigor and impartiality" (Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 437, supra). And, casting a veil of secrecy over the major component of the criminal justice system may well lead our citizens to view the judicial process with a suspicious eye (see People v Hinton, 31 N.Y.2d 71, 73, supra). It is not enough that justice be done. It must be perceived as being done in the eyes of the public.
Finally, it bears emphasis that the closure motion in the present case was entertained in secret, with no representative of the public or media afforded an opportunity to voice opposition. Moreover, the motion was granted in summary fashion without any showing in support of it. These procedures cannot be sanctioned (Matter of Westchester Rockland Newspapers v Leggett, 48 N.Y.2d 430, 442, supra). The majority's explanation — that closure occurred prior to the Westchester Rockland case — is unacceptable. Even prior to Westchester Rockland it was clear that closure could not be ordered absent some showing of potential prejudice (Matter of Gannett Co. v De Pasquale, 43 N.Y.2d 370, 376-381, affd 443 U.S. 368, supra). Here, there was none. And, it had also been stated in Gannett that "the courts should of course afford interested members of the news media an opportunity to be heard * * * to determine the magnitude of any genuine public interest" (43 N.Y.2d, at p 381). Since the closure in this case occurred after the procedural guidelines in Gannett were promulgated, the majority's explanation of the improprieties does not bear scrutiny. Thus, the procedural irregularities alone would warrant reversal.
Accordingly, the judgment of the Appellate Division should be reversed.
Judges JASEN, GABRIELLI, JONES and FUCHSBERG concur with Judge WACHTLER; Judge MEYER concurs in a separate opinion; Chief Judge COOKE dissents and votes to reverse in another opinion.
Judgment reversed, without costs, and matter remitted to the Appellate Division, Third Department, with directions to dismiss the proceeding solely on the ground of mootness.