Warren E. Burger: We'll hear arguments first this morning in Number 1301, Gannett Company against DePasquale. Mr. Bernius you may proceed whenever you're ready.
Robert C. Bernius: Thank Your Honor. Mr. Chief Justice and may it please the Court. I represent petitioner Gannett Company, Incorporated which seeks reversal of the judgment of the New York State Court of Appeals. The question presented by this case is what restrictions to the First and Sixth Amendments placed upon a trial judge, rejects the public and press from a traditionally public suppression hearing in order to prevent press publication concerning that hearing.
Lewis F. Powell, Jr.: Do you place your argument principally on one amendment as against the other or on both?
Robert C. Bernius: Your Honor, I believe our argument is based first on the First Amendment, secondly on the public trial clause of the Sixth Amendment. They are two separate grounds --
Lewis F. Powell, Jr.: Which do you prefer?
Robert C. Bernius: I prefer neither Your Honor. I think they're birth -- both equally important. I think the damages in the First Amendment aspect are clear as are they in the Sixth Amendment. The facts in this case are very brief. Case arises out of the disappearance in mid-July 1976 of a Rochester man while fishing on the Finger Lakes in New York State. Respondents Greathouse and Jones were subsequently arrested for his murder and in November 1976, a suppression hearing in the case was commenced before Judge DePasquale in Seneca County Court which is located approximately 40 miles from Rochester. At the beginning of the hearing the defense attorney has requested that the public and press be ejected saying that evidence which might or may not be admitted at trial would be heard at the hearing. Judge DePasquale with no inquiry or argument and without hearing any evidence whatsoever in -- or making any findings of fact ejected the public, ejected the press.
Lewis F. Powell, Jr.: Incidentally Mr. Bernius, is there a transcript to what happened?
Robert C. Bernius: Yes Your Honor at pages 4 through 6 of the appendix is the transcript of that ejection, a request --
Speaker: And was there a transcript made of the -- after the ejection of the proceedings following?
Robert C. Bernius: I believe so Your Honor, yes.
Speaker: That transcript is not here?
Robert C. Bernius: It is not in the record before this Court Your Honor. It was released after the defendants pleaded guilty which was subsequent to the time that the special proceeding, prohibition and mandamus was commenced.
Warren E. Burger: Did the trial judge at the time of this original order indicate that the transcript would or would not be available when the case was terminated --
Robert C. Bernius: Your Honor, at --
Warren E. Burger: -- when the trial was terminated?
Robert C. Bernius: At the initial ejection, there was no colloquy at all concerning the availability of a transcript in the future. During the hearing, the reporter, the Rochester newspaper reporter who had been excluded asked for postponement in order that attorneys might appear and argue that. The postponement was denied and the hearing finished in secret on Friday afternoon. On Monday morning, attorneys appeared for Gannett sought vacator of the order of closure and at that point since the hearing was over, we asked for access to the transcript. Judge DePasquale heard argument on our motion but denied vacator of the order and also denied access to the transcript in perpetuity. After the plea of guilty, he had a change of heart and released the transcript to the public which was --
William J. Brennan, Jr.: Has it been lodged with us Mr. Bernius?
Robert C. Bernius: No, it has not Your Honor.
Lewis F. Powell, Jr.: The entire record has not been lodged here?
Robert C. Bernius: Your Honor, the entire record is in the appendix. Transcript of the suppression hearing was not part of the record in the Appellate Division or in the Court of Appeals.This is a separate proceeding distinct from the criminal proceeding. It was a special proceeding.
William J. Brennan, Jr.: So your answer is no, the entire record isn't here, is that right?
Robert C. Bernius: The record of the criminal case is not before this Court.
Warren E. Burger: The record of the trial.
Robert C. Bernius: Of the -- well --
Warren E. Burger: (Inaudible)
Robert C. Bernius: The suppression hearing is not -- the transcript is not before the --
Warren E. Burger: But when he entered a plea, a trial at some stage began in trying to separate the pretrial from what he decided to do finally was to plead guilty, wasn't it?
Robert C. Bernius: Yes Your Honor, there was no trial.
Warren E. Burger: Pretrial covers all of the things you've been telling us about on the exclusion of the public.
Robert C. Bernius: Right.
William H. Rehnquist: When you --
Speaker: (Inaudible)
William H. Rehnquist: When you said that this was a separate proceeding, you mean that Gannett's proceeding to obtain release of or access to the suppression motion was in -- under New York law separate proceeding from the criminal proceeding.
Robert C. Bernius: Yes Your Honor. What happened were essentially two things. We were notified about the situation immediately or shortly before the suppression hearing in the criminal case ended. That was on a Friday afternoon and this is an outlying county. On Monday morning, I essentially appeared as an interested party or as an amicus in the criminal case. I went back to Judge DePasquale to ask him if he would change his mind. He did not and he denied our motion. The next day, we started a separate distinct civil proceeding of prohibition and mandamus in the Appellate Division. So this is an appeal from --
Thurgood Marshall: And the case we have is Gannett, it has -- the title of this case is Gannett?
Robert C. Bernius: That's right Your Honor, its Gannett against the --
Thurgood Marshall: So it has nothing to do with a criminal case.
Robert C. Bernius: It's a civil case. It's in the nature of prohibition and mandamus challenging the orders in a criminal case.
Thurgood Marshall: Right.
William J. Brennan, Jr.: What did you make part of the record on that application?
Robert C. Bernius: Your -- the -- we -- this case started Your Honor with the petition which is -- appears at page 21 -- page 19 of the appendix. And the petition challenges the orders in the criminal case which were issued by Judge DePasquale.
William J. Brennan, Jr.: And attached to it as exhibits or whether --
Robert C. Bernius: Well, yes. The orders and the transcripts of the criminal --
William J. Brennan, Jr.: That's what --
Robert C. Bernius: -- proceeding are -- were attached as exhibits --
William J. Brennan, Jr.: Or attached as --
Robert C. Bernius: -- in the writ of prohibition.
William J. Brennan, Jr.: Incidentally, I take it this was a stenographic transcript not a tape recording.
Robert C. Bernius: That's right Your Honor. It was a stenographer --
Thurgood Marshall: The proceedings are (Inaudible) 13 on your case. That's all we have on the proceedings, right?
Robert C. Bernius: Well, what has happened with this appendix Your Honor is that things have been put in a chronological order. The transcripts of the --
Thurgood Marshall: I mean, is there other -- any thing or -- of what happened at the motion other than what is on the 13?
Robert C. Bernius: No. At the time we started this that was still secret and it was sealed. When Gannett commenced the separate civil proceeding and mandamus in the Appellate Division, next to that -- those papers were the newspaper articles which had appeared prior to the closure. Now those articles are irrelevant to justify the closure because they were not before Judge DePasquale. He did not consider them and indeed, no reference was ever made by any of the respondents to those articles. But I would submit that those articles are directly relevant to the issue before this Court because they demonstrate and put in a factual context to the opinion of the Court of Appeals. The articles appeared over a course of approximately two and a half weeks from the time of the disappearance of this man until the time the defendants were arraigned on the murder indictment. They appeared on seven days out of that 18-day period and they appeared contemporaneously with the major events in the criminal investigation. There are articles in the morning and evening paper when this man disappeared. There were --and then there were articles when the defendants were arrested, when they were indicted, arraigned and so on. The last articles appeared at the time of the defendants' arraignment which was 91 days before the commencement of the suppression hearing. There was no further publicity in that interim period.
Warren E. Burger: Suppose in a criminal trial Mr. Bernius, the -- either the prosecution or the defense wants to take a deposition of an absent witness either out of the United States or situated in someway where attendance, personal attendance can't be compelled. Would you think the Sixth Amendment and your other arguments would require that the taking of the testimony of that witness be a public open hearing?
Robert C. Bernius: If -- a criminal trial Your Honor, yes I do and I think --
Warren E. Burger: No, not a criminal trial, very carefully he stood before trial -- pretrial.
Robert C. Bernius: In a criminal proceeding, yes it would Your Honor. I believe that --
Warren E. Burger: What if it's never offered in evidence?
Robert C. Bernius: Well, that is I think irrelevant at the time of the proceeding, that that deposition has all the characteristics of a criminal trial. I would assume that a witness is going to testify. The parties are present. There is an oath. There is cross-examination. The defendant has a right to be present. All the characteristics of the criminal trial itself, the post jury criminal trial.
Warren E. Burger: s it not common that in pretrial depositions both in civil and criminal cases that particularly if no judge is present and that's usually the case that there are many question which you're asked and answered with the reserved right to challenge their admissibility at the -- when asked and if the deposition is offered, is that not so?
Robert C. Bernius: Yes. Yes sir.
Warren E. Burger: How was it part of the trial until it's offered in evidence?
Robert C. Bernius: Well it -- Your Honor, it is an important stage in the process and there is a development, an adversary proceeding to develop a factual record upon which a subsequent determination will be made.
Warren E. Burger: Well, will the subsequent determination be made if it's never offered?
Robert C. Bernius: Yes.
Warren E. Burger: Well, what --
Robert C. Bernius: It -- if (Voice Overlap) --
Warren E. Burger: What will there be for the Court to rule on?
Robert C. Bernius: Well, it won't be made based on that but there is no guarantee and I think it's -- the analogy to a suppression hearing is clear that at the time of the suppression hearing there's no guarantee at all or no -- that the evidence will in fact be admitted a trial. In fact, there is no guarantee that there will be a trial but nevertheless that is -- could well be the critical stage in the process but if the testimony of the suppression hearing transcript is not to be offered or the evidence that is given in the hearing is not to be offered at trial, the reason for that is because a judge makes a determination that that evidence is not admissible.
Warren E. Burger: Is that the only circumstance? What if for the party who has called for the deposition just decides that isn't needed and therefore he doesn't offer it?
Robert C. Bernius: Well, I think that --
Warren E. Burger: Suppose that the prosecution takes this pretrial testimony in an abundance of caution and when they put their case in they find they approved -- established the same facts by other witnesses and they never bothered to put the deposition in evidence.
Robert C. Bernius: Well, the --
Warren E. Burger: Is it part of the trial then?
Robert C. Bernius: Not in a strict sense but in a generic sense, yes Your Honor. I don't think that the fact that a jury is selected is a mystical concept that precludes the public's right to attend and to observe and be aware of the entire gamut of the proceedings where there is testimony, where there is cross-examination, where there is an attempt to establish either the prosecution's point or the defense point.
Warren E. Burger: Well, does the Sixth Amendment speak in terms of proceedings or does it speak in terms of trial?
Robert C. Bernius: Well Your Honor, it speaks in terms obviously of a trial but it's our position that a suppression hearing is clearly for the constitutional purpose as part of the trial. In fact, the statistics are that 90% of all criminal cases and 100% of criminal cases in Seneca County for two and a half years were completed at the pretrial stage.
William H. Rehnquist: Well, what -- whoa! Counsel, what if the statistic show that 90% of the complaints of the prosecuting attorney were never even prosecuted by information or indictment by him, would that make the prosecuting attorney's conference among his colleagues part of the trial because that was the way so many cases were disposed of?
Robert C. Bernius: Well Your Honor, I'd -- there is a distinction obviously between that situation and the situation where there is a formal proceeding and adversary proceeding, witnesses are sworn and a judge is going to make a determination based on that testimony, a determination of fact. I think that really the answer to the question of when does a trial commence is to be found in the purposes that are served by the public trial clause. One of those purposes obviously is to protect the defendant and see that his interests are not abused by the prosecuting authorities but it goes beyond that. There are interests in the public, specifically third parties may have a direct interest in the case but the interest of the public in seeing that the --
William H. Rehnquist: Why then that the framers cast the language of the Sixth Amendment in saying the accused shall enjoy the right of a public trial. Why didn't they say the press shall have access to the trial?
Robert C. Bernius: Your Honor, I think that based on the prior history and which is developed at -- to a certain extent in our brief but in the -- at the amicus brief for the National Association of Broadcasters more extensively, there was really no indication that a common law, the right of a public trial accrued to the defendant at all. There were broader purposes behind it but the codification was in the constitution I think recognizes that the defendant should specifically be guaranteed a fair trial, a public trial but the part -- inherent in that clause, the public trial clause is a recognition I would submit that the public has an equal interest. I think that the purposes that are served by the clause mean that it should not be read literally.
William H. Rehnquist: Well the framers shouldn't have taken an odd way of expressing it if they meant to adopt your view.
Robert C. Bernius: Your Honor, I don't think so because it is again inherent in that phrase, public trial is a notion, a concept that the public has an interest in it and based on the prior history of common law and based on the purpose it served by the public trial clause --
William H. Rehnquist: Well, how can you tell what the purposes served are except by reading the clause?
Robert C. Bernius: I think Your Honor by looking at the history and really analyzing it in the terms of the essential nature of the guarantee and what it does. The overwhelming purpose served is as far as I can tell, the insurance of the confidence of the public, I mean in the judicial system, in the criminal justice system, the public nature of trials is in effect necessary to the vitality of that system and its viability. I don't think that our criminal justice system would long last if proceedings of this nature were held in secret and I think that --
William J. Brennan, Jr.: Mr. Bernius, you argue anyway don't you that independently of the Sixth Amendment public trial that the press at least has the First Amendment right to be present.
Robert C. Bernius: Absolutely Your Honor.
William J. Brennan, Jr.: Now, before you get in to that, I know you're going to argue that, I hope, but what if -- does the public also have a First Amendment right?
Robert C. Bernius: I think so Your Honor, yes. I do -- we do not --
William J. Brennan, Jr.: You don't claim any more --
Robert C. Bernius: No.
William J. Brennan, Jr.: -- for the press than for the public?
Robert C. Bernius: Absolutely not. We think that the public right is equivalent to the press right.
William J. Brennan, Jr.: And this is First Amendment and not the Sixth Amendment.
Robert C. Bernius: That's right. The -- their --
Lewis F. Powell, Jr.: When you get to that, did you have any cases from this Court that under the First Amendment guarantees access to information.
William J. Brennan, Jr.: Your Honor the -- I believe I have an analogous case history. First, there was no -- there's no question in this case that the public and the press had a right to be present prior to the motion to exclude them. The Court of Appeals indicated that in its opinion, the respondents concede that. It's -- the right to be present I think derives primarily from the right to gather information which was recognized by this Court in Branzburg and I know that the right to gather information is not without limits but I would submit that if there is any sort of right to gather information, it must exist at trials, it must exist in the streets and other public forums and I think that for the purposes of the right to gather information, the public forum test which was developed in most specifically articulated in the Grayned case gives very pertinent guidance.
John Paul Stevens: Would you take that so far as to have the right to be present at a conference of members of an appellate court.
Robert C. Bernius: No Your Honor because --
John Paul Stevens: Why not?
Robert C. Bernius: -- the presence of the public or the press that the conferences of this Court or any other Court would be basically incompatible with the primary function of the -- of that -- of the public institution at that time.
John Paul Stevens: Except I thought you based your approach a little while ago on the right to gather information.
Robert C. Bernius: That's right but it's not unli -- it's clearly not unlimited Your Honor and I think that the Court has answered that in some of the present cases that's answered that to a certain extent in the public forum cases, Marsh against Alabama, Adderly against Florida that was -- the cases where there is an asserted right to be present to exercise First Amendment freedoms.
John Paul Stevens: Mr. Bernius, what is the primary function of the suppression hearing?
Robert C. Bernius: The primary function of the suppression hearing is to determine Your Honor whether a jury should hear specific evidence whether it is sufficiently reliable.
John Paul Stevens: And if the Court determines that it should not be heard and if the press has heard that evidence, is there any restriction on the press publishing it so it will come to the attention of the jury?
Robert C. Bernius: The -- no, (Voice Overlap) --
John Paul Stevens: So how could the primary function of the suppression hearing be performed if you're correct?Well, Your Honor there is -- that is really I believe the -- one of the principle faults in the Court of Appeals' opinion, the assumption that publication by definition means a -- that the jury will be affected by this information.
Robert C. Bernius: The orders in this case were aimed directly at publication. They're aimed at keeping the public ignorant of the facts of this hearing. And their -- that the basis of the orders is public ignorance with the hope that somehow an indirect benefit will filter back to the trial.
Warren E. Burger: What if the judge modified this order and expressly said that at the determination of the trial, the transcript of the suppression hearing will be made available to anyone who wants it?
Robert C. Bernius: Well --
Warren E. Burger: Then is there any suppression of information?
Robert C. Bernius: Yes there is Your Honor. I think that this Court in Nebraska Press very much dealt at length with the problems in delaying publication of news concerning the criminal justice system. Secondly, the --
Warren E. Burger: But there you were dealing with the trial, not pretrial, weren't you?
Robert C. Bernius: Nebraska Press --
Warren E. Burger: Nebraska didn't --
Robert C. Bernius: -- was a pretrial situation Your Honor. The delay in this case is just as serious. Secondly, its -- if the order in this case is in a sense more dramatic than in Nebraska Press because not only is there a delay but there is an absolute denial of the public's knowledge of what went on in the suppression hearing. As an appellate court, this Court is well aware of the inadequacies of a transcript but the tones, inflections, gestures, everything that makes a presence of a -- of the trier of facts so necessary into a determination, none of those things can be recaptured in the transcript. And finally --
Warren E. Burger: But if you -- but if (Inaudible) as Mr. Justice Stevens suggested, if the interest of justice and fairness require that the jury not here change of the evidence, how is that purpose served? I'm not sure you quite fully answered and how is that purpose served if the jury hears it indirectly?
Robert C. Bernius: Your Honor, we make no argument at all that suppression hearings must be open under all circumstances. We simply say that the damage done to both First Amendment interest and to the public trial interest of the public are serious and that if closure is to take place, it should take place only as the last resort. What has happened in this case is that the Court of Appeals has said that closure secret proceedings are preferable to change of venue to continuance to an extended voir dire, all those separate alternatives that this Court has on -- repeatedly said and would have been effective to mitigate the effects of pretrial publicity.
William H. Rehnquist: If you were in a federal court, you would have some difficulty using change of venue as an alternative if the defendant objected, wouldn't you?
Robert C. Bernius: Your Honor, I -- that is -- it's clear that when if there is a continuance or a change of venue or of voir dire, to some extent it's going to inconvenience a defendant.
William H. Rehnquist: What about the vicinage requirement?
Robert C. Bernius: The vicinage requirement Your Honor deals with the source of a jury. It doesn't really deal with the venue of the case and I think that the history of the vicinage clause indicates that in -- at the time of the enactment of the Sixth Amendment, there were -- the districts, the federal judicial districts were the equivalent of the states with the exception of Massachusetts and Virginia which had two districts. So I don't think that the vicinage clause is of any pertinence here since it's number one outdated and number two, it requires a jury from -- essentially from the state and --
William H. Rehnquist: Well, do you think the Government could have said in -- if this case had been pending in federal court, don't worry about supra -- the opening the suppression hearing to the Court because we're going to move for a change of venue down to Tennessee.
Robert C. Bernius: Well Your Honor, I think that at that point, the defendants would have to make a choice and the fact that a venue may be laid in a certain specific area, the fact that continuance would somehow interfere with a speedy trial. Those are considerations that all must be weighed but I don't think that in this situation where there are important First Amendment rights and press and public rights that one -- anyone guarantee can be deemed to be absolute. What we're seeking here is an accommodation of all these potentially conflicting values. What -- there is Your Honor, no conflict in this case. There was no showing that publication would -- in any sense have prejudice of the defendant's right to a fair trial. And there's also been no showing in this case that ejection or closure of this hearing would have help to mitigate that prejudice. In fact, I think --
John Paul Stevens: Of course Mr. Bernius, both defense lawyers move for the closure on the very ground that they thought they'd be prejudiced. Wasn't that the ground the reason it was closed?
Robert C. Bernius: They moved on the basis that evidence which may or may not be admissible at trial was to be admitted in a suppression hearing and ask for it to be closed. I don't really know what that is. I have -- we assume that they were concerned with the effects of pretrial publicity but the concern is not enough Your Honor. There must be some sort of showing to justify this unusual and we submit unconstitutional procedure.
John Paul Stevens: What sort of showing would they make in open court without revealing the very thing they wanted to conceal?
Robert C. Bernius: Well Your Honor, first, the most dramatic example always is a suppression of a confession.
John Paul Stevens: Right.
Robert C. Bernius: In many cases, that the confession is not admitted at a suppression hearing. It's not really the issue at a suppression --
John Paul Stevens: That the fact that a confession had been made would have to be disclosed, wouldn't it?
Robert C. Bernius: That's right.
John Paul Stevens: And would not that be prejudicial to the defendant if it were published in the press and did you not assert the right to publish whatever you heard at the hearing.
Robert C. Bernius: We assert the right to publish whatever we heard but we already knew that there was a confession Your Honor and we could have published that no matter what happened at the hearing. We could have said and with full --
John Paul Stevens: Well, maybe in this case but in the normal -- in every case, it isn't true that the press would know whether there was a confession in advance, would it?
Robert C. Bernius: Well, the press would know Your Honor that there was an illegal search and seizure of evidence that there was -- or there was a confession or there was an illegal wiretap. They would know generically what was going on at that hearing and it seems to me Your Honor and I -- and that the fact that a hearing was closed would not diminish the prejudicial impact of a case. It in fact would exaggerate it that the public will assume the worst at a close hearing.
John Paul Stevens: You really think that you're a better judge of what's good for the defendants' trial posture than their own counsel.
Robert C. Bernius: No I'm not Your Honor but I think that the defendants' rights are not absolutely paramount if they're not -- if there's not a demonstration that they are in fact prejudiced.
William J. Brennan, Jr.: Did you say, (Inaudible) knew here what it was that the defense wanted to suppress?
Robert C. Bernius: We knew that it was a confession Your Honor and we knew that there were --
William J. Brennan, Jr.: Anything else?
Robert C. Bernius: That we knew that there was a gun that had been seized.
William J. Brennan, Jr.: Oh, I know but do we know that the motion to suppress identified the -- either it's must have I suppose that were sought to be suppressed.
Robert C. Bernius: Not specifically.
William J. Brennan, Jr.: We don't know -- there's nothing in this record to tell us?
Robert C. Bernius: No.
William J. Brennan, Jr.: What I'm getting at is didn't you -- I know that the gun was found in Michigan, wasn't it?
Robert C. Bernius: Yes sir.
William J. Brennan, Jr.: And hadn't the papers already published that before the suppression hearing?
Robert C. Bernius: Yes Your Honor in July.
William J. Brennan, Jr.: But you -- you knew that there was a confession which you had not -- had not printed that?
Robert C. Bernius: Absolutely, there was in fact the day after the --
William J. Brennan, Jr.: Absolutely it was or was not (Voice Overlap)?
Robert C. Bernius: It was -- I -- there was no reference in any of those articles to a confession and that's an important point Your Honor that the press in this case was responsible even in the article the day after the hearing was closed, the reporter did not refer to the -- to his confessions or guns. She said -- she described it as evidence which might have been deemed admissible at trial.
William J. Brennan, Jr.: Well, if you would have a hearing, I gather one of your protests here is that you should've had a hearing before the order of closure issued, --
Robert C. Bernius: Yes sir.
William J. Brennan, Jr.: -- is that right?
Robert C. Bernius: Yes sir.
William J. Brennan, Jr.: And if you had, what would you have argued?
Robert C. Bernius: I would've argued that there was no basis for the closure Your Honor that --
William J. Brennan, Jr.: Well, on the ground that whatever was the subject to the motion to suppress had already been published?
Robert C. Bernius: That's one aspect to it that that closure would be ineffective because we could -- it's not a gag order on the press, they could publish the singly most prejudicial statement that could be made is that the defendants confessed and we could have published that.
Warren E. Burger: You said earlier Mr. Bernius in response to Justice Stevens that the defendants' right was not paramount. I think those were your words. You mean it's -- the defendants' right to a fair trial is not paramount?
Robert C. Bernius: What I meant to say Your Honor is that there must be an accommodation if a situation arose where the defendants' right to a fair trial was on the line against the public's right, First Amendment and Sixth Amendment rights. We do not say that the defendants' right should be and should not be paramount. But it's important to require the New York State Court of Appeals and trial courts throughout the country not to abrogate the rights of the press and public unless it's absolutely necessary. And that a threat, an actual threat, danger to a fair trial is shown and that -- and there's a showing made that the ejection or closure would be effective and finally and most importantly, there is a showing made that a traditional Sheppard alternatives would be ineffective to cure that danger.
John Paul Stevens: Well Mr. Bernius, suppose in this case there had been a hearing and it had -- the issue was a confession and the judge says, I've read the confession and if the newspapers and the media really do their job in getting the word out which they apparently want to do and there's going to be a lot of people hear about this. And it's going to make it very difficult to get a jury and he makes a finding that there is a serious danger to the fair trial rights of the defendant. I suppose you take that up on appeal, wouldn't you?
Robert C. Bernius: Your Honor, we would obviously have the option of commencing a special proceeding just as we did in this case.
John Paul Stevens: Well, I know but you wouldn't lie still for that, I take it. I just -- I would just like to know what kind of findings in -- by the trial judge would -- that you would accept?
Robert C. Bernius: Your Honor, it's the -- I would submit that the appropriate findings that have to be made are the findings in the -- are articulated in Nebraska Press and the fact that --
John Paul Stevens: Well suppose he makes them all?
Robert C. Bernius: Certainly, there's a -- always the possibility that it could be challenged in a separate proceeding under the law of New York State Your Honor but I doubt very much certainly in this --
John Paul Stevens: Well, what kind of evidence and what kind of danger would you think would have to be present -- that wouldn't be present when there is a flat out confession of the crime by the defendant and the interested media. I take it you think its -- that in this case at least it was news.
Robert C. Bernius: Yes.
John Paul Stevens: And you were going to -- and you were interested in publishing the result -- the -- what went on at the suppression hearing?
Robert C. Bernius: That's absolutely Your Honor but (Voice Overlap) --
John Paul Stevens: So you're innocent in publishing the confession if there was one?
Robert C. Bernius: Not necessarily.
Speaker: Why didn't -- necessarily, were you going to suppress it or weren't you?
Robert C. Bernius: That would be an editorial judgment Your Honor and I think that the --
John Paul Stevens: Well, you wanted the right to publish it anyway?
Robert C. Bernius: We want the right to make that decision.
John Paul Stevens: Yes. You want the right to publish. And so what kind of evidence would be sufficient to -- on the judges' conclusion that there is a real danger to the --
Robert C. Bernius: A finding that and a basis for a finding that change a venue to an adjoining county would not have cured the prejudice. Here, we had a circulation of 1500 newspapers and a population of 36,000 in Seneca County. The adjoining counties have 350,000 people and judicial district at almost 4 million --
John Paul Stevens: We aren't just talking about the newspapers, aren't we?
Robert C. Bernius: We're talking about the public and --
John Paul Stevens: Oh, we're talking about the media and we're talking about television.
Robert C. Bernius: That's right.
Warren E. Burger: (Inaudible)
John Paul Stevens: And so it doesn't do you any good to talk about 1500 newspapers.
Robert C. Bernius: Well, that's what (Voice Overlap) --
John Paul Stevens: We have to talk about television -- the reach of television coverage, don't you?
Robert C. Bernius: Certainly and that's not relevant in this case because there's no evidence that there was any television or radio coverage. And in general, I -- it is --
John Paul Stevens: Well, you don't suppose there wouldn't be, would you if there was an open suppression hearing?
Robert C. Bernius: There's nothing to indicate that there was Your Honor or would have been.
Harry A. Blackmun: Do you think they're just going to stay home?
Robert C. Bernius: In this case, in -- yes. But in -- obviously the -- in -- as in Rideau, television coverage is certainly relevant and should be considered. But in this case, it wasn't considered and the effect of a continuance of voir dire should be evaluated.
William J. Brennan, Jr.: Mr. Bernius may I ask you. Whether with or without a prior hearing there had been no closure order and you had sat -- and members of the public however many of them were through the suppression hearing and at the close of it, the judge had then issued an order that you not publish until at least after a jury had been chosen and sequestered. Anything that you heard that day and similarly address such an order to the general public whoever they are present at the time, you'd still be here, wouldn't you?
Robert C. Bernius: Yes sir.
William J. Brennan, Jr.: On what ground then?
Robert C. Bernius: Under the Nebraska Press test Your Honor. But the fact that --
Warren E. Burger: But the -- Judge DePasquale apparently anticipated your answer to Mr. Justice Brennan, didn't he?
Robert C. Bernius: The colloquy among lawyers who are involved in this Your Honor is that this is -- this situation is a direct result of the Nebraska press decision and it's our feeling that the mechanism even though the mechanism is ejection rather than injunction, the damages are at least as great and the standards in Nebraska Press should be complied with. Thank you.
Warren E. Burger: Mr. Kobroff.
Bernard Kobroff: Mr. Chief Justice, may it please the Court. The right to a public trial is neither an absolute right of the public nor of the press. Pretrial hearings and portions of trials had been closed to the public including the media for such situations as preventing disclosure of skyjack profile testimony insuring the emotional and physical health of the pregnant witness protecting the identity of an undercover agent permitting a prosecutrix to testify uninhibitedly at a trial. Respondent submit that the need to preserve an accused constitutional right to an impartial jury in the County of venue is as important as any of these other interest which have been held to justify closure of criminal proceedings. Respondents call Edwin Greathouse and David Ray Jones challenged the admissibility of confessions that they had given to Michigan police and physical fruits that these confessions had led the police to seize. Respondent Judge DePasquale was required to resolve that this evidence had not been obtained in violation of the accused constitutional rights. The admission of this evidence, this full confessions to the alleged murder and robbery were undoubtedly had been prejudicial to these defendants at their trial and widespread dissemination of these confessions prior to trial could nonetheless have predetermined their guilt in Seneca County.
William J. Brennan, Jr.: You wouldn't -- you -- it would just be a timesaver is it -- or would it be anything other than saving your time if there was a hearing about why it was important to close the proceedings and why some other mechanisms wouldn't suffice?
Bernard Kobroff: Well, the New York Court of Appeals has held that the press is certainly entitled to have their views known before the Court.
William J. Brennan, Jr.: Well, that isn't what the trial judge did, is it?
Bernard Kobroff: Well, the situation that was presented to Judge DePasquale was that this motion was made. There were at least three reporters representing three different newspapers in the courtroom. None of them mentioned any objections to it. The District Attorney agreed in effect with the defendants and their motion --
William J. Brennan, Jr.: Yes, but they made motions later.
Bernard Kobroff: Well, they did in fact make motions later and Judge DePasquale did in fact hold the hearing and listened to their arguments, so they did have the hearing.
Byron R. White: Did he make -- what kind of determinations did he make? He just --
Bernard Kobroff: Well --
Byron R. White: -- denied the motions, didn't he?
Bernard Kobroff: No, no. I mean Judge DePasquale heard this argument, heard both sides and then determined that there will be a reasonable probability of prejudice to these defendants had the media gotten access to these confessions and disseminated them. This --
Byron R. White: And the --
Bernard Kobroff: This was his finding.
Byron R. White: And did he indicate that some other mechanisms wouldn't be sufficient?
Bernard Kobroff: Well, the only reference to that is one of the defense lawyers in the transcript mentions change of venue that is the only alternative specifically mentioned in the appendix --
Byron R. White: What does the Court of Appeals think should happen in a normal case?
Bernard Kobroff: What?
Byron R. White: Did they think something should happen in addition to what happened in the trial court?
Bernard Kobroff: Well, they obviously mentioned the alternatives mentioned by this Court in Sheppard, in the opinion. What you've got here though which make it different I think then what these alternatives, the Sheppard alternatives will do -- is here, the actual the actual poison had not been put out into the community. We're not in a situation where we're mitigating damage that's already being done, that's already out. We've got a situation where the damage isn't yet been done. The -- it isn't widespread and we have an opportunity to stop it at its inception.
Thurgood Marshall: But the gun is already out?
Bernard Kobroff: The gun and that's true and for that, we might well -- this isn't the only alternative available to a Court to deal with prejudicial publicity. I mean we have in fact the Sheppard measures that they might also have to be used. I'm (Voice Overlap) --
William J. Brennan, Jr.: Yes, but the money -- must the exclusion however be the last alternative or --
Bernard Kobroff: Well, the difficulty with exclusion is the last alternative is that if you wait till the voir dire or if you wait till change of venue can be done, the hearing is already over. It's too late. Exclusion is a prophylactic and in a certain situation, unusual situation and there's no denying, this is an unusual case. It is effective and it should be available to a trial court. It is a fundamental tenant of due process that the conclusions to be reached in a case will be induced only by evidence and argument in open court and not by any outside influence whether of private talk or public print. Judge DePasquale had the obligation to prevent suppressed evidence from determining the guilt of Greathouse and Jones and certainly from determining their guilt prior to trial. To prevent the jury from learning of a coerced confession during trial yet all along needlessly making it available to them to read or hear of it before trial, knocks the claim that our system of law has always endeavored to prevent even the probability of unfairness. For Judge DePasquale to have allowed public disclosure of potentially tainted evidence which he had the constitutional duty to exclude would involve the Court itself in this taint and illegality. Respondent Greathouse and Jones were out of state transience, they're accused to the murder and robbery of a local area resident Wayne Clapp, a former police officer with roots in the community. They have fled -- the respondent and Jones had fled Seneca County sooner after Clapp's disappearance and they were arrested in Michigan several days later. There they allegedly gave these confessions which were the object to this motion. If they had prevailed at this hearing, they had a triable defense. The People's case was entirely circumstantial. Three men leave on a boat to return. Gunshots are heard, anchors are missing but there is no body, there is no decease, no corpse and no eyewitnesses to any crime.
Lewis F. Powell, Jr.: Was the body ever found?
Bernard Kobroff: Never, never found. However, if they're unsuccessful at the suppression motion, the defense is almost hopeless. The full confessions to the crime plus the murder weapon itself is in evidence. This case had already generated extensive media publicity throughout Seneca County.
John Paul Stevens: But when you make that statement, are you basing it on what's in the appendix?
Bernard Kobroff: I think we can accept that. I think you can also --
John Paul Stevens: This is far different than in some of the other cases that had been decided here, isn't that -- it doesn't strike you as rather routine reporting, factual reporting?
Bernard Kobroff: Oh, Your Honor, I -- they might -- they claim it to be factual reports but as a defense attorney trying this case I mean you would not want to accept that as factual reports. These are untested, unreliable rumors.
John Paul Stevens: Well then, comparing that with the material in Murphy against Florida for instance?
Bernard Kobroff: Alright. The thing with Murphy is when there was no confession that was confronting that or would possibly have been testified and it report in the press. I think that's a major distinction from what we had in Murphy. On the day of the suppression motion, we had three reporters in the courtroom that we know of. Petitioner's reporter, a reporter from the Geneva Times and a reporter from the Syracuse Post. Together, these papers accounted from us the 85% of the daily newspaper circulation in Seneca County.
William H. Rehnquist: Is Geneva this county (Inaudible) of Seneca County?
Bernard Kobroff: No, no. None of these papers are published in Seneca County. Geneva is in Ontario County which is a few miles away. The only newspaper actually published in Seneca County is a weekly newspaper.
William H. Rehnquist: Where was this Court sitting In Seneca?
Bernard Kobroff: Seneca County -- oh, it is --
William H. Rehnquist: What town?
Bernard Kobroff: I believe Waterloo. An additional 6% of the daily newspaper circulation of Seneca County is accounted for by petitioner's ethical journal paper which he owns and is distributed there. There could be no doubt that this petitioner --
Warren E. Burger: Well, are these statistics very important?
Bernard Kobroff: No, no. I just want to state them to make the point that in fact what would have occurred at this hearing would have been widely and immediately disseminated. I think that three newspapers, well, not with three reporters in Seneca County courthouse unless they feel there's a new story and unless they're going to use it. That's the only reason and the fact that they do have the circulation in that county. Greathouse and Jones moved for the exclusion of these media representatives. They argued that the deleterious effects of disclosures of the evidence they sought to suppress, sought to be suppressed would outweigh their right to a public trial.
William J. Brennan, Jr.: Mr. Kobroff, can you identify what it was they wanted suppressed?
Warren E. Burger: Well, yes, I mean I know what it was because I've seen the transcript.
William J. Brennan, Jr.: But that is not in the record before us though.
Bernard Kobroff: Well, they made a motion to suppress physical evidence. The motions of statements made to Michigan police and the fruits that these confessions had lived in (Voice Overlap) --
William J. Brennan, Jr.: Well, had there been any publication of what it was that the physical evidence was found in Michigan?
Warren E. Burger: Right. The -- it is clear that this -- the gun was found with Greathouse -- led the police to, that was reported and was reported that the defendants have moved.
William J. Brennan, Jr.: But you say the motion is suppressed also, was addressed to statements made to Michigan police?
Warren E. Burger: Oh yes, they had given statements and written confessions --
William J. Brennan, Jr.: And there'd been no publication that they had made such statements?
Warren E. Burger: The publication dealt with the fact that New York police were -- they listed -- they gave one statement that Greathouse had made to the Michigan police when he was captured that was he was afraid he'd be shot --
William J. Brennan, Jr.: I mean, to the extent that though this already had been published, why --
Bernard Kobroff: Well, the substance of the confessions has not been published.
William J. Brennan, Jr.: So is this down merely to the substance of the confessions?
Bernard Kobroff: Well, no. I mean the actual word itself confession hadn't been used, they used inadmissible statements.
Warren E. Burger: I understood your friend to say that even though the newspaper reporter knew of it they had not published but it's just a matter of their own editorial judgment.
Bernard Kobroff: It would appear so. But nevertheless the accused did not necessarily feel they had to run the risk that when they see two reporters in the courtroom that this might continue it. Up to now, they had not gotten the substance of the confessions. They knew that -- you know, it had been reported that police who were in Michigan interviewing these suspects to learn the apparent motive for the slain. So they knew that they had gotten something from their interviews but they didn't know what and now, on the day of the suppression hearing, they are going to find out what the “motive” for the apparent slain was.
Thurgood Marshall: But they also had published that he was on probation from San Antonio.
Bernard Kobroff: Right, I would say that's not exactly a fact.
Thurgood Marshall: That the state police hoping to bring the pickup truck back and they're still looking for the 357 magnum revolver which was later found.
Bernard Kobroff: Yes, I think he --
Thurgood Marshall: That everything in there but the confession.
Bernard Kobroff: They had a lot of damaging evidence in there.
Thurgood Marshall: Well, what did they have other than the confession they didn't have that they published here. And I'm not -- but I'm just halfway through them.
Bernard Kobroff: Right. It's the confession. That would be it.
Thurgood Marshall: That's the only thing then, isn't it?
Bernard Kobroff: Well, I think in this case, that's the difference perhaps between having a triable defense and --
William J. Brennan, Jr.: Well Mr. Kobroff, would you be defending this closure if everything that was a subject to the motion to suppress was already been published?
Bernard Kobroff: Yes, I think that they could still make their emotion.
William J. Brennan, Jr.: What justification would there been for the closure of everything that was --
Bernard Kobroff: Well --
William J. Brennan, Jr.: -- subject to the motion to suppress and then (Voice Overlap) --
Bernard Kobroff: I think that the defense counsel would certainly make the motion. I mean whether the --
William J. Brennan, Jr.: I'm not talking about the defense counsel. I'm asking what justification would there been for the order of closure in that circumstance?
Bernard Kobroff: The same that it would threaten their right to get an impartial jury in that County. The -- simply because the press has this information simply because the press can publish it doesn't mean that the defendant is therefore is stopped from trying this, you know --
William J. Brennan, Jr.: I don't suggest he is. He can make the motion. I'm just asking why the judge would enter an order of closure --
Bernard Kobroff: Well --
William J. Brennan, Jr.: -- of everything or a subject to motion or --
Bernard Kobroff: That he might well not --
William J. Brennan, Jr.: -- even of public knowledge.
Bernard Kobroff: He might well not. I mean he could well take this into consideration and say, "Well, given this situation I don't find a threat and I won't do it". On the other hand he might well say, "Well yes, I'm going to do this and I'm going to -- then continue the case and you've waive your right to speak". He might -- they might play the whole instances of things he could do even though the information is out. I assume in saying that it shouldn't foreclose the defendant or the judge from having this power to -- these means of protecting the defendant's rights simply --
William H. Rehnquist: Counsel, in our position, is it solely the protection of the defendants' rights that is involved here, supposing the New York legislature passed the law saying that all trials, all criminal trials in the state shall be closed unless otherwise required by the constitution of the United State and both the defendant and the prosecutor agreed in this particular case that the trial should be closed. They both move forward or stipulated to it. Is that reasoning a constitutional issue?
Bernard Kobroff: Well, I would first of all say that I think that's a very unlikely situation.
William H. Rehnquist: It's rather, it would be a rather strange statute but let's suppose it was enacted.
Bernard Kobroff: I think that if that -- if such a statute was ever enacted by the state legislature, it might well raise constitutional problems.
William H. Rehnquist: What sort of constitutional problems?
Bernard Kobroff: Public is the ultimate sovereign. The public --
William H. Rehnquist: Well --
Bernard Kobroff: -- has the right to know.
William H. Rehnquist: What about a rule of an appellate court or the rule of the Governor of New York that his cabinet meetings are going to be private or the rule of the President of the United States that his cabinet meetings are going to be private?
Bernard Kobroff: I think that's a -- I think that you have -- that's a little different I think than perhaps a public trial --
William H. Rehnquist: Well --
Bernard Kobroff: -- by definition a public trial.
William H. Rehnquist: Well, but why do you say by definition of public trial if the New York State legislature says, it's not going to be a public trial?
Bernard Kobroff: Well, no, I just meant that it -- in comparison to an executive closure of a cabinet meeting as compared to that difference. I think that --
Byron R. White: Yeah but if you're in trial, you're referring to the Sixth Amendment I take it.
Bernard Kobroff: Yes.
Byron R. White: I know but are you -- your argument is that it's the defendant's right?
Bernard Kobroff: Yes it is. I would also say though that its also the public policy of the State of New York and of every other state that there are other societal interest that are advanced by the right of public trial independent of an accused right to a public trial. I think it -- there are two sources.
Potter Stewart: I was trying to find the Jelke case in the New York Court of Appeals. Do you remember if that's cited in the briefs?
Bernard Kobroff: Yes, I believe I've cited it in my brief.
Potter Stewart: You do, are you?
Bernard Kobroff: Yes.
Warren E. Burger: Did the judge in this case --
Potter Stewart: (Voice Overlap) the citation features.
Bernard Kobroff: It's 308 New York 56, 123 Northeast 2nd 769.
Potter Stewart: 308 New York 56.
Bernard Kobroff: 123 Northeast 2nd 769.
Potter Stewart: Is that --
Warren E. Burger: Did the judge put any limitation on the prosecutor or others releasing statements about the confession or (Voice Overlap) --
Bernard Kobroff: No. Your Honor, the prosecutor didn't. He (Voice Overlap) --
Warren E. Burger: Does this record show how the media found out about the adjustments of the gun?
Bernard Kobroff: I believe it was certain of the statements.
Warren E. Burger: The motions made in open court which was -- were there references to the pistol in the motions in open court?
Bernard Kobroff: No, I believe -- the papers were filed that would've have referred to the physical evidence.
Warren E. Burger: I see.
Bernard Kobroff: Those were filed though.
Warren E. Burger: But those are public records and they weren't sealed.
Bernard Kobroff: No, they were not sealed. I believe to answer your question. I think that most of the source of the news seemed to be the state police, a David (Inaudible) was referred to in various of the articles as giving various quotes.
Byron R. White: Do you think the threat to the fair trial rights of the defendant are as great from admissible evidence being published ahead of time as inadmissible or not?
Bernard Kobroff: No. The situation isn't the same. I mean if the evidence is admissible, there's no reason to insolate the jury from it. They're going to hear about it anyway.
Byron R. White: Well, I know but suppose you know in voir dire you asked the jury have your read about this case? They say, "Yeah, we've read all about it". What do you as a defense counsel do say in it --
Bernard Kobroff: I ask a few more questions --
Byron R. White: -- shrug your shoulders or not?
Bernard Kobroff: No, no. I asked a few more questions to see exactly what they've read and where they've read it and how it might have affected them.
Byron R. White: Well, suppose one of them says, "I read a verbatim transcript published in the paper of the suppression hearing which turned out that -- and the evidence was admissible"?
Bernard Kobroff: Well, I don't think I have cause but I might not want them anyway.
Warren E. Burger: The -- do I understand correctly that the transcript of the suppression hearing is now available and is part of the public record?
Bernard Kobroff: Yes, yes.
Warren E. Burger: But its not -- it was not sent here?
Bernard Kobroff: Well, it wasn't part of -- this is a collateral proceeding --
Warren E. Burger: Yes I know.
Bernard Kobroff: -- to the case.
Warren E. Burger: Collateral but perhaps of some interest.
Bernard Kobroff: Yes. But no, it was not sent here.
William J. Brennan, Jr.: Could it be?
Bernard Kobroff: I suppose so. I'd tell you what I do have with me if Your Honors would want it is a copy of Judge DePasquale's decision on the hearing that much I have with me if Your Honors would want. I don't know how permissive this is. Judge DePasquale could not close this as to the obvious, needles prejudice the accused constitutional right that was about to occur. He had the duty to protect the respondents Greathouse and Jones' right to a trial by an impartial jury in the County of venue and he did what any prudent judge would have done.
William J. Brennan, Jr.: How about the -- do you see any constitutional problems had -- what Judge DePasquale did say, "Well, the press may stay and public may stay". And they heard the whole thing and at the close of it, he said, "Well, this maybe prejudicial". And he issues an order directed to the press and public present.
Bernard Kobroff: I don't think he could do that.
William J. Brennan, Jr.: You don't think he --
Bernard Kobroff: I think Nebraska Press pretty well decided that issue. That's just not available. I mean -- and in addition, I think this course -- this Court had even held in Nebraska Press that what occurs at a public hearing --
Warren E. Burger: Would that (Voice Overlap) --
Bernard Kobroff: -- cannot be prior -- cannot be a subject to a prior restraint. So that option was never even available to him as far as that goes.
Warren E. Burger: Would that fall within what I think Mr. Justice Frankfurter said once the cat is out of the bag, it's impossible to get it back in again.
Bernard Kobroff: That seems to be the rule.
William J. Brennan, Jr.: What was the judge's decision in this case on admissibility?
Bernard Kobroff: Certain confessions, certain statements were suppressed, the others were not. Apparently, certain statements were made and then he requested the attorneys then more statements were made and so on. What is involved in this case is the constitutional right of an accused to a trial by an impartial jury in the County of venue and the right of the public including potential jurors and media representatives have immediate access to pretrial evidentiary suppression hearings. The case does not concern the right of the press to publish free from prior restraints. There were no restraints on press publication in this case. No injunctions restraining the press from publishing anything it wanted to. No contempt citations punishing the press for having published anything. Petitioner's error is in equating a temporary denial of public access to potentially inadmissible evidence where the Court ordered direct restraint on publication. The press was at all time free to publish anything it wanted to about the case at People v.Greathouse and Jones. Yet the press had learned that what transpired at this in camera proceeding, their publication of this evidence would've been unrestrained. Petitioner nonetheless argues that the public including prospective jurors' right to immediate access to this testimony, testimony untested by constitutional standards as to reliability, admissibility, testimony found to be probably destructive of an accused constitutional right to an impartial jury that this right to immediate access is entitled with the same constitutional protection as the press' right to publish free from governmental censorship. Respondent submit that there is no basis in law or reason for this equation. This has never been the requirement. This has never been the standard of -- to deny used in instances where courtrooms had been closed and none of the instances to protect the identity of an undercover agent to allow witness to testify uninhibitedly. This has never been the standard used. And such a standard would severely undermine an accused constitutional right to an impartial jury. And without an impartial jury, any other right granted to an accused is meaningless. An important value in our society, a value embodied in the constitution is of the trial by an impartial jury in the county where the crime was allegedly committed. This requirement of a fair trial has been interpreted to me not only the absence of actual bias but even the absence of a probability of unfairness. To further protect the rights of an accused, our society extends reasonable doubt and presumption of innocence and other burdens in favor of an accused. Before a confession could be offered in evidence against an accused, he must first have been determined by at the least a preponderance of the evidence to have been knowingly voluntarily and intelligently given. If it is determined that a jury even considered a coerced confession, it is automatic reversal, can never be a harmless error. Yet petitioner insist that before a Court can exclude the public including prospective jurors from the hearing involving a coerced confession that the accuse must in open court and in an adversarial proceeding satisfy the awesome standard necessary to justify governmental censorship. Respondent submit that the standard certainly gives an accused far less than he has a right to expect in our society and under the constitution. Petitioner bases his argument on the public and potential jurors' right to immediate access to suppression hearing testimony on the fact that the flow of information to the public concerning pretrial suppression hearings is vital to public understanding of the judicial system. There is no claim here that the press' right to publish is being restrained.
Speaker: Suppose Mr. Kobroff (Inaudible) it wasn't -- there was a plea here, so it never came to trial.
Bernard Kobroff: Yes.
Speaker: Being a homicide case would it have been a sequestered jury?
Bernard Kobroff: Perhaps.
Speaker: And if it had been, would these restraints upon publication of the transcripts of the suppression hearing have been operative?
Bernard Kobroff: I would think that it probably wouldn't be necessary in that case. I mean if the jury is --
Speaker: But it could've been released --
Bernard Kobroff: Yes.
Speaker: -- as soon as the jury was sequestered.
Bernard Kobroff: I would think that it -- as soon as you have a jury and you can insolate the jury that the defendant's interests are just no longer in jeopardy. I mean the threat here is that you've got potential jurors. You've got the perspective jurors sitting in the courtroom and you've got to insolate them. I mean, you're required to and this is the means to do it.
Thurgood Marshall: But all the newspaper could publish would be the record, the transcript?
Bernard Kobroff: Yes, (Voice Overlap)
Thurgood Marshall: They couldn't draw nuances anything from how the witnesses appeared?
Bernard Kobroff: Well, I don't know --
Thurgood Marshall: Yes, (Voice Overlap) --
Bernard Kobroff: I mean these are --
Thurgood Marshall: Obviuosly they weren't there, obviously.
Bernard Kobroff: Well --
Thurgood Marshall: You don't think that's necessary.
Bernard Kobroff: I think that if you have a record that runs a couple of hundred pages, you can simply buy perhaps picking various --
Thurgood Marshall: They wouldn't be as good then, would it?
Bernard Kobroff: I don't know.
Thurgood Marshall: Well, two is better one.
Bernard Kobroff: It might not be the best of them all.
Thurgood Marshall: Two is better than one is that --
Bernard Kobroff: Right, right, in that sense, yes.
Thurgood Marshall: Well, the record plus the side of the witness is two.
Bernard Kobroff: I agree. I'm simply saying that it's still newsworthy. I mean this case is moot, it's been moot now for almost two years and it is still newsworthy. You're right though but it still -- they were there --
Thurgood Marshall: They're still there.
Bernard Kobroff: Well, I mean you're -- you've got to -- it's not an easy decision for this Court. I'm not saying it is. I mean you've got a balancing here you've got serious rights that are affected. You've got --
Lewis F. Powell, Jr.: How does a written news story convey the nuances that you've been discussing?
Bernard Kobroff: Well --
Lewis F. Powell, Jr.: In a different -- any differently from the written transcript. Television would be different, radio perhaps.
Bernard Kobroff: I will tell you, I'm not a newspaper reporter and perhaps --
Lewis F. Powell, Jr.: But you read the newspaper every now and then, don't you?
Bernard Kobroff: Yes. I didn't -- I've also read some novels back you know --
Thurgood Marshall: Well, then how do you explain why they sent three reporters and didn't just wait for the transcript?
Bernard Kobroff: Well, I think they wanted it immediately.
Thurgood Marshall: They just want to spend their money.
Bernard Kobroff: Well, I think they felt there was -- this was a good news story and the next day, it might make a --
Thurgood Marshall: They want to waste their money.
Bernard Kobroff: It's their business decision. I don't think the Gannett Newspapers does badly making business decisions. The right of the -- the right to the access -- right of access to this transcript has not been denied and is not being denied. This transcript will enable the public to continue to monitor the criminal justice system. It will enable it to assure itself that the accused is in fact being treated fairly to assure itself that public officials are correctly performing their duties to assure itself that no judicial or prosecutorial irregularities have occurred. If there is any absolute in our constitutional system is that an accused must receive a fair trial before it can be lawfully convicted. Of primary consideration is the public's interest in avoiding anything that would truncate this right. To maintain an accused right to an impartial jury as the arbiter of guilt or innocence, the hearing judge must have the means to ensure their perspective endearment to not hear him out as which by law they are to be insolated from. Respondents submit that the decision of the New York Court of Appeals reaches a wise balancing between the right of the press to publish free from governmental restraint and the right of an accused to an impartial jury in the County of venue. Respondents submit that the decision of the New York Court of Appeals should be affirmed. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.