*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW v. RUGGER BOIARDO, DEFENDANT, DEVINGO, IO v. ANTHONY AN GERARDO, DREW VITO JAMES MONTEMARANO AND ANGE SICA, LO CARMEN DEFENDANTS-RESPONDENTS. IN THE MATTER OF THE APPLICATION OF ROBIN (ROBIN GOLDSTEIN RE: SUBPOENA. GOLDSTEIN, APPELLANT). 21, May Decided May
Submitted 1980. *2 Frederick W. Rose submitted a brief on appellant behalf of (Young, Rose & Millspaugh, attorneys). Merrill,
John DeCicco and M. Deputy Bruce Attorneys Gener- al, submitted a respondent brief on behalf of State New Jersey (John Degnan, J. Attorney General of New Jersey, attor- ney; John Merrill, DeCicco and Deputy Bruce M. Attorneys *3 General, Brown, and G. Michael Attorney General, Assistant counsel).
Miles joint Feinstein submitted a brief on behalf respon- (Miles Feinstein, dents attorney for Anthony defendant DeVin- go; Vantuno, John V. attorney Gerardo; for defendant Andrew Doran, John P. attorney for defendant James Vito Montemara- no; Ferrante, and Joseph A. attorney for defendant Angelo Sica). Carmen
The opinion of the Court was delivered WILENTZ, J.C. upon
We are called
for the second time
ongoing
in this
criminal case to review the trial court’s
reporter
order that a
turn over certain letters to the court for in
inspection.
camera
review,
earlier,
On our first
order,
we reversed an
similar
holding that defendants had not made a
showing
sufficient
(N.J.S.A.
under the new shield law
seq.)
2A:84A-21.1 et
warrant compelled production.
Boiardo,
State v.
I. reviewing contention that begin by We defendants’ Amendment of the process clause of the compulsory Sixth Neither requires production of the letters. Federal Constitution application presents first present appeal nor defendants’ a criminal defendant’s between new shield law and conflict neither process since compulsory Amendment Sixth *4 right compulsory impairment right. of that involves an production an item of require held to of process has never been assertion upon mere unsubstantiated a defendant’s availability regardless its that it would assist in his defense of the question We do the relevance through other sources. the as we view in the letters. information contained case, numerous less intrusive availability in this the record to a reasonable the has been established sources of in all that is contained certainty. reasonably It is certain that that anything letters has whatsoever to do with this trial is author’s) (the Patrick Pizuto’s written that assertion State promised had him exchange a non-custodial sentence in for his cooperation1 and reneged promise. had on that Proof that precisely Pizuto this said on numerous other occasions is availa ble, and includes both and written oral statements him. Thus, again unnecessary, we find it as we when did the case us, first before came to evaluate balance the interest of the press against in non-disclosure of defendants to com pulsory process. balancing required This is a ultimately under only new shield law in those cases that where which is sought by compulsory promises, process at least with some degree probability, to contain information not otherwise help available that be of to a defendant. That is not the case here. us,
When this matter difficulty first came before presented incomplete stemmed from the state of the record. While concerning there was evidence contents letters themselves, very there was little about what information was contained in the potentially less intrusive sources. Under those circumstances, it was clear that the order of for in inspection reversed, premature had to be since into inquiry the existence and contents of less intrusive suggested sources had been minimal best and the at record might such sources be numerous.
We find reversal on now the record before us more clearly required than before. now reasonably We are certain as to the Furthermore, contents of letters. the trial court has consci- entiously examined the we less intrusive sources and now can say, again certainty, with reasonable those sources will information, provide many (some the same in different forms letters) persuasive more than as is contained the letters. e., by obtaining against 1/. future evidence in the these defendants as well by testifying truthfully case, concerning as all matters involved in the includ- ing eye alleged witness account of the murder to have been committed Anthony DeVingo. defendant *5 meet the burden of It is clear that defendants have failed to them the new shield law. proof imposed on
II. alleged is clear. An former importance Pizuto’s in this case defendants, agreed, part plea as of a Pizuto confederate charge, partici- murder to continue his bargain on an unrelated being “wired” so as to pation alleged conspiracy in the while in the goings-on among alleged participants record February cooperation allegedly began in conspiracy. His months, than six until his decision and continued for «more County announced in the Passaic courtroom turn informant was A plea to the unrelated murder. guilty where he entered his I, (see 82 N.J. at transpired events thereafter Boiardo number of 450-452) in fact be creating doubt as to whether Pizuto would State, testify and would in fact if called. testify called to case, appeared in this original At the time of our decision stand, speculation would be called to the but there Pizuto privilege and refuse that he would assert his Fifth Amendment witness. since our testify as the State’s lead and, filed, on direct exami- opinion was called Pizuto State nation, asserting privilege. without he testified to be defendants’ contention that
It has been and continues from Pizuto to Ms. Goldstein contain informa- the letters sent credibility the defense’s attack on Pizuto’s tion that is crucial to sources, we to other available cross-examination. In addition on testimony, hearing on this Pizuto’s taken in now have matter, Pizuto that he to the of the letters. said as contents The first was addressed to her Ms. two letters. sent Goldstein reporting. It for her “honest” large part and in thanked her the other possible publication of also contained instructions for letter, Ms. although sent to Gold- letter attached. This second stein, Jersey of the New State Major Dintino was addressed this letter dealt with his dissatis- Police. Pizuto testified that keep of their failure faction with State officials because prison which was any time in promise that he would not serve sentenced on the unrelated allegedly to him before he was made *6 murder charge. Major It berated Dintino for unfair “deal” given by to Pizuto officials cooperated State after he had with long period them for a of time. The contents of the letters were partially by taped confirmed conversations between Pizuto and (referred defendant James Vito I). Montemarano to in Boiardo tapes produced during were the trial court’s hearing and have been made available to this Court. proposed
Defendants’ use of the letters is the same as before: for purposes prior cross-examination as a inconsistent statement “bias,” and as evidence of Pizuto’s /. e. his motive—a non-custo- case, dial helping sentence—for perhaps by lying State’s for it.
III. opinion case, In our first in this we indicated that defend ants had demonstrating fallen far short of non-availability by preponderance less intrusive sources of the variety listed a gaining alternative means for information alleged about the promised deal Pizuto the State. The judge, trial hearing in the held on reapplication for letters, of the held that successfully defendants had shown that the alternative sources we described descrip did contain a tion of what was in the letters. this was not the showing required Rather, under the statute. it was defendants’ prove burden to the alternative sources did not contain substantially information similar to the information contained in the letters—that the promised State had Pizuto a non-custodial sentence, a deal far better than the one he received at sentenc ing. Therefore, the judge’s trial conclusionas to the non-availa bility of less error, intrusive sources was necessarily in as was his thereupon. decision based possible
Our review of the less intrusive sources reveals a plethora of substantially similar to that contained in the letters. tapes, The Montemarano which were made availa defense, ble to the State and the contain numerous statements concerning Pizuto the “raw deal” he received when he was It of non-custodial time. prison time in instead sentenced any detail of these conversations inappropriate to would be opinion, this Pizuto in the context of Montemarano and between concerning promises the by Pizuto they contain statements but throughout him, concerning the conduct made to State’s State therewith. cooperation Pizuto’s investigation sentencing judge by Pizuto and The letters sent to the meeting held be- information about similarly wife contain According to representatives of the State. tween Pizuto and he would not promised that supposedly letters Pizuto was these letters, part as a any jail. Although serve time and not a normally be confidential presentence report, would *7 record, publica- to their Pizuto had consented part public the of description of source. The the as a less intrusive tion and usé letters, including the assurance meeting in the State’s contained disappointment at sentence and of Pizuto’s of a non-custodial sentence, potential the same precisely have receiving a custodial Pizuto’s impeaching Ms. do for value as the letters to Goldstein fact, Pizuto testified that the credibility witness. In as a Dintino), which (the Major letter one addressed Goldstein “much, shallower,” page was much consisted of one handwritten judge. his letter to the than hearing reapplication on the for testimony during the
In his sentencing proceed- acknowledged that the production, Pizuto presentation charge contained a ings on the unrelated murder anything contained in far broader than by attorney his that was transcript those A review of the to Ms. Goldstein. the letters by allegations factual reveals numerous sentencing proceedings a non-custodial sentence agreement for attorney of an Pizuto’s argued Defendants disappointment with State. and Pizuto’s by Pizuto’s made proceedings, and the statements that Pizuto himself intrusive source because attorney, were not a less in testimony and because in his presentation, did not make necessarily agree- in below, said he was not hearing Pizuto attorney said at the things that his with some of the ment accepted by the trial court argument, which hearing. This that it was Although question there is no below, fail. must provided who attorney and not Pizuto Pizuto’s is obvious that he sentencing transcripts, in the contained client, of, sitting his who was for, authority spoke and with Moreover, a of allocution before Pizuto had next to him. repudiat- he could have at which time pronounced, sentence was Instead, when asked attorney had made. ed the statements his anything to his judge he had to add sentencing whether anything else that he wished to or had attorney’s presentation is not Certainly, Pizuto responded negative. in the say, he statements, deny is free to their attorney’s bound his the information is no reason accuracy. there statements, permission, with attorney’s provided through his may give them the same jury, to the which presented cannot be own statements. as it would to Pizuto’s effect hearing provided also Pizuto at the below testimony source of information with an obvious alternative defendants him and allegedly made between agreements the various about very proceedings directly testified these Pizuto State. a non-custodial sentence. promised he had been in March actual conversations Finally, at some time taped were which are representatives between Pizuto and State of a non-custodial sentence. strongly suggestive promise of a clearly does not set forth the circum- the record below While portion of tran- into a stances of their introduction by consent. It is script tape was read into the record less intrusive source of imagine persuasive a more difficult to *8 was made than a record- promise Pizuto’s statement that such a agreement. ed version of the actual have us to conclude that the defendants This review leads proof of under the new shield law: failed to meet their burden In sought gained information could not be elsewhere. that the to demon- fact, no burden on Ms. Goldstein although there was through less intrusive information was available strate that the sources, provided in we believe that the alternative certainty. availability to a reasonable record shows their the again Therefore, unnecessary to remand the case for we find it factors, that, hold absent the consideration of these and further discovery concerning the of the letters of new evidence contents circumstances, produce Ms. need not changed or other Goldstein inspection production for use the for either or letters at trial.
IV. the majority the dissent as The difference between it, essentially as in I: the dissent we view is the same Boiardo proving the disputes proposition the that circumstantial evidence (the letters) a legally a document could ever be contents of sought by in camera a satisfactory inspection substitute for expressed in a criminal case. The doubts the defendant proof adequacy the of such circumstantial are dissent as to concerning on Pizuto’s recollection and truthful questions based less lead the to conclude that intrusive They ness. dissent the to be “identical” to letters. sources have not been shown Pizuto’s credi challenge was no whatsoever to there judge As of fact the trial noted: bility on this issue. a matter made every the himself has “I am source satisfied [Pizuto] review of the to us what is in the letter.” Our effort disclose certainty, refused to claim us that while he record satisfies clearly established. accuracy of Pizuto’s recollection testimony others and sur Through testimony, of circumstances, of and the content the letters rounding provided by of the information identity virtual to those contents established to a reasonable less sources have been intrusive requires Amendment certainty. do not believe Sixth We more. process suggests right compulsory
The dissent addition, rejects apparently In absolute. virtually is control, jurispru within certain constitutional of courts to boundaries, and introduction dential request a has made a therefor. in a trial once defendant criminal proposition for on the former see occasion comment We no right of the Sixth Amendment it is clear us that because analog Constitu as as its in our State compulsory process, well Farber, need,” “legitimate tion, showing is on bottomed *9 274, quoted by only where 259 at dissent at 363. It is N.J. “rigorous” constitu- been demonstrated such need has process compulsory the confrontation and standards of tional showing required to establish that While the clauses attach. (there being a lack of previously been defined need has not Westen, subject—see, g., e. “Confrontation law on the decisional Theory of Evidence for Process: A Unified Compulsory Cases,” (1978)—it seems 91 Harv.L.Rev. 586-87 Criminal of require production clear that the Constitution would to a where a lack of need has been demonstrated “necessary” precisely the same certainty reasonable because other, less readily through variety available of information is intrusive sources. deny would to the courts
The effect of the dissent etc., evidence, limit the through discovery, rules of power, trial, instead in require in a criminal and to flow of information virtually all production subpoenaed information I, resulting N.J. at 460. The inflexi- situations. Boiardo See present system justice, bility wholly contrary is to our judges who otherwise would would serve to tie the hands of trial in the admission be free to exercise discretion Rights. unwilling We are within the strictures of the Bill of to “close and lock the door” step take such a backward and thereby. understanding of the
Finally, accept does not our dissent suggests law. It that where the purposes of the new shield “known,” purposes in a confidential document is by compelling reporter privilege of the are not disserved produce every compelled production it. chills confi- purposes of the new shield law is to dential sources. One by confining compelled production effect minimize that adverse necessary. precisely is where the informa- to cases where it is It tion is otherwise known that of confidential compelled, should not be for the obvious reason that documents necessary. it is not
V. privilege of non-disclosure Defendants claim that letters to that Ms. Goldstein read the request Pizuto’s waived testimony The their contents. him he testified about before that, privilege depends on the extent it clear makes confidential, there keep the letters continued desire to Pizuto’s that he did not want expressly claimed was no waiver. Pizuto however, point, published. More to the letters themselves newsperson and not the source. that of the privilege is production subpoenaed trial court for The order of the hereby is reversed. inspection for in camera documents J., SCHREIBER, dissenting. Relevant and closed and locked.
The
has now been
door
suppressed
has been
which no court has seen
material
assisting
a crucial role in
could have had
although that evidence
prosecution
credibility
key
of a
evaluation of the
jury’s
by rejecting the
reached
Sixth
witness. The result has been
court’s factual assess
implications and the trial
Amendment
a defendant has
issue is whether
The
Amendment
ment.
Sixth
letter,
produce a
compulsory process to
right to
a constitutional
for a court’s
material
containing relevant and
if the same material is available
inspection
to determine
exists,
then does
If such a
through other sources.
which
law,
seq.,
2A:84A-21.1 et
N.J.S.A.
newsreporter
shield
is in the letter
prove
what
on the defendant
places the burden
it)
also to
to read
and
(without
having
opportunity
had the
his
through other
available
are not
establish that
the contents
right?1
Amendment
sources,
Sixth
conflict with defendant’s
privi
question
important
recognize
letter is
whether the
1it is
standards,
ultimately
leged
resolved
constitutional
one to be
“is
a federal
Westen,
rigorous one.
...”
standard is a
that the constitutional
[and]
Theory
Compulsory
of Evidence for
Process: A Unified
“Confrontation
567,
(1978).
my
Cases,”
in State v.
In
dissent
593
Criminal
91 Harv.L.Rev.
Boiardo,
interpretation
(1980),
law
of the shield
I advocated an
Pizuto’s letter and crucial evidence for Yet, jury determining credibility. to consider in its contents are not known and will remain unknown. I cannot conclude on provide “precisely this record that the less intrusive sources same” information that at is in the letter.2 83 N.J. added). (emphasis majority’s (1) conclusion assumes recollection, denied, complete Pizuto had a which he of what he *11 letter; (2) with, had written in the that the letter was identical to, material; (3) simply not similar the less intrusive and that concerning Pizuto’s declarations before the trial court the con accept tents of the letter were accurate. The trial court did not any assumptions. of these court, carefully considering weighing
The trial after and all found the less intrusive were not sources satisfac- tory pointed The trial Pizuto for several reasons. court out that was not certain as to what he wrote in the letter. Before testifying, sought unsuccessfully newsreport- Pizuto have to testimony er the letter him read so that his would be may accurate. The trial court noted that the letter have Pizuto grand jury testimony. referred to Apparently, his none of the subject. less intrusive sources dealt with this The trial court found also say Major
that what Mr. Pizuto had to about Dintino in that letter written to respect Robin is relevant information with Goldstein to information could possiblyimpeach anyway fully be used to Mr. Pizuto and it is not in covered or literally. interpretation Legisla to construe the shield law This sanctions the may may ture’s control over what or not be offered into evidence. credibility, proposed 2Defendant’s use of the letter was to attack Pizuto’s solely but he did not limit or concede that its were to be used contents help show Pizuto’s bias to the State’s case in return for a non-custodial “deal,” Even if to Pizuto’s the details in the sentence. the letter were limited significantly letter could be different from those in the other sources and greater impact could have had a much at trial. less intrusive sources the information obtained from even covered adequately go Major would with And the same to what Dintino had said. with respect There is General Bozza had said. very to whatever respect Deputy Attorney Mr. Bozza, may of those less intrusive sources about little said in most crucial. be sources the “alternative The trial court concluded that [do] in contained relevant information duplicate potentially all of the “signifi- may bear opinion In the letter the Pizuto letter.” its it is “therefore guilt or innocence” and cantly” on “the issue of necessary to the Defendants.” right rights, including defendant’s Amendment Sixth may obtaining evidence which fundamentally fair trial
to a helpful by at defense, safeguarded are entitled to be to his be trial court to make inspection an permitting least production rights Those include of the letter. at trial. ultimately found admissible may may or not be
which
997, 99
Farber,
(1978),
cert. den.
U.S.
In In re
78 N.J.
I,
Article
10 of
(1978),
interpreted
we
§
as material for documents and other witnesses and the attendance of preparing legitimate or need in believe he a has, which he or have, may will undertaking summoned means that witnesses properly his defense. It also that material demanded by properly phrased required testify forthcoming exami- and available for duces tecum will be appropriate subpoena *12 274; nation and use. N.J. at [78 emphasis added] letter, contents cannot Pizuto’s whose produce The decision to examination, its introduction into prior to be known without public, private, “in not hands” placed be should [the] 665, 698, 408 92 S.Ct. Branzburg Hayes, v. U.S. reporter. 626, v. 2646, 2665, (1972). also United States 649 See 33 L.Ed.2d 1039, 3109, 3090, Nixon, 683, 711, 41 L.Ed.2d 94 418 U.S. S.Ct. to vindicate duty of the courts (It (1974) is 1066 Amendment). need for in camera guarantee of the Sixth of the for introduction equated with the need review is not to be has examined the trial court Only into evidence. after letter intrusive any there are less whether letter can it determine 364 Garrett, 23, (6 26 Cir. v. 542 F.2d United States
sources.3 Cf. where abridged right confrontation 1976) (Sixth Amendment denied in camera review of confidential erroneously court trial Ct., 426 U.S. Dist. v. United States generally, Kerr record). See 725, (1976); 48 L.Ed.2A 2119, 2125, 734-735 405-406, 96 S.Ct. 394, 3090, 3110, 714, 41 Nixon, 94 S.Ct. 683, v. 418 U.S. United States Mea Note, v. Witness: “Defendant (1974); 1067 L.Ed.2d Against Rights Process Compulsory suring Confrontation 935, 986 Stan.L.Rev. 30 Privileges,” Statutory Communications prove to Furthermore, burden on defendant placing the (1978). alternative sources that the the letter and was in precisely what compounds the letter as in the same did not contain right prod constitutional impact on defendant’s adverse uction.4 available, comparable may 3When several sources of material are be right contended that the defendant has the to make the choice of what he Seeger, F.Supp. (S.D.N.Y.1960), shall use. In United States v. charged question during defendant with willful refusal to answer a an investigation of the House Committee on Un-American Activities. The sought quash subpoena upon Government to served the Chairman of the urged Committee and that all the matters which the witness could be called
upon
documents,
testify
to were deducible from
records and minutes of the
proceedings.
Judge
quash
subpoena.
Committee’s
Weinfeld refused to
He wrote:
accused of
to the Constitution a defendant
Under the Sixth Amendment
right
compel
guaranteed
witnesses.
the attendance of
crime is
and his
is a matter for the defendant
these witnesses shall be
Who
prosecution
person
or the
does not rest with the
counsel to decide.
It
right
may
deprived
subpoena.
The defendant
under
negate
proof to
who it is believed
offer
summon to his aid witnesses
support
The fact that the
or to
the defense.
the' Government’s evidence
Congress
submerge
subpoena
does not
here under
is a member
witness
prosecution
question—the
defendant in a criminal
basic
of the
468;
compulsory process.
omitted]
footnote
at
[Id.
advocating
majority
position
when it states that
I am
4The
overstates the
proving
my
document
the contents of a
under
view circumstantial
satisfactory
inspection.
legally
for in camera
be a
substitute
could never
Kozlov,
dissenting
(1979);
discussion in
I that under the circumstances subsequently a to examine the letter and exer- right court has admissible, letter is judgment an as to whether the cise informed data, with only respect to intrusive source but also not with less cumulativeness, redundancy to and remoteness. In this respect discretion, its rather than manner trial court exercise being prevented doing from so. for the letter is made should setting request
The in which Preserving confidentiality not be overlooked. product work is not at stake. newsreporter’s sources and her that the information in the letter is known. majority asserts so, major purposes is which motivated If that then none present is in this It is adoption of the shield statute case. anonymity will be seeking that sources difficult believe discouraged confiding press because of an in camera from in-the case, has letter in this where source inspection of the made acknowledged wrote letter and has publicly that he this divulge The effort to avoid every effort its contents. permitted deny defendant’s speculative chill should determining impeding judicial role of right by constitutional being adversely is affected. right whether dissent, opinion I my previous am of As indicated in compulsory process Amendment have defendant’s Sixth *14 infringed preliminary stage at this because of a statutory evidentiary privilege. court’s order.
I would affirm the trial For reversal—Chief Justice WILENTZ and Justices SULLI- VAN, PASHMAN, CLIFFORD, HANDLER and POLLOCK—6.
For modification and affirmance—Justice SCHREIBER—1. PERILLO, SALVATORE CORPORATION FOR THE COUNSEL NEWARK, APPELLANT, CITY OF v. THE ADVISORY COM ETHICS, MITTEE ON PROFESSIONAL RESPONDENT. PATERSON, CORPORATION COUNSEL OF THE CITY OF APPEL LANT, v. OPINION 423 THE OF ADVISORY COMMITTEE ON ETHICS, PROFESSIONAL RESPONDENT. 1, Argued Decided July March 1980.