State v. Boiardo

416 A.2d 793, 83 N.J. 350, 6 Media L. Rep. (BNA) 1337, 1980 N.J. LEXIS 1364

Opinions

The opinion of the Court was delivered by

WILENTZ, C. J.

We are called upon for the second time in this ongoing criminal case to review the trial court’s order that a reporter turn over certain letters to the court for in camera inspection. On our first review, we reversed an earlier, similar order, holding that defendants had not made a sufficient showing under the new shield law (N.J.S.A. 2A:84A-21.1 et seq.) to warrant compelled production. State v. Boiardo, 82 N.J. 446 (1980). Our reversal, however, was without prejudice to defendants and permitted reapplication for such inspection upon presentation of further proofs. Such reapplication was made by defendants, and after hearing the additional evidence, the trial court again ordered the reporter to produce the letters for in camera inspection.

The Appellate Division granted Ms. Goldstein’s (the reporter’s) motion for leave to appeal. While the matter was still pending there, we directly certified the appeal on our own motion. (R.2:12-l). We reverse the trial court and further hold that in the absence of newly discovered evidence regarding the contents of the subpoenaed letters or other changed circumstances, defendants may not reapply to the trial court for their production. See infra at 358-359.

In our first opinion in this case, we gave effect to the legislative judgment clearly expressed in the new shield law: the need of the press for protection not only from the production of confidential material at trial but also for protection against even that limited disclosure that occurs when the court itself examines the material in camera. The same interest we found controlling in our earlier opinion—the protection of confidential matters from any disclosure whatsoever—is again involved. Under the circumstances before us it requires precisely the same protection.

I.

We begin by reviewing defendants’ contention that the compulsory process clause of the Sixth Amendment of the Federal Constitution requires production of the letters. Neither the present appeal nor defendants’ first application presents a conflict between the new shield law and a criminal defendant’s Sixth Amendment right to compulsory process since neither involves an impairment of that right. The right to compulsory process has never been held to require production of an item of evidence upon a defendant’s mere unsubstantiated assertion that it would assist in his defense regardless of its availability through other sources. We do not question the relevance of the information contained in the letters. However, as we view the record in this case, the availability of numerous less intrusive sources of the information has been established to a reasonable certainty. It is reasonably certain that all that is contained in the letters that has anything whatsoever to do with this trial is Patrick Pizuto’s (the author’s) written assertion that the State had promised him a non-custodial sentence in exchange for his cooperation¹ and had reneged on that promise. Proof that Pizuto said precisely this on numerous other occasions is available, and includes both oral and written statements by him. Thus, we again find it unnecessary, as we did when the case first came before us, to evaluate and balance the interest of the press in non-disclosure against the right of defendants to compulsory process. This is a balancing ultimately required under the new shield law only in those cases where that which is sought by compulsory process promises, at least with some degree of probability, to contain information not otherwise available that may be of help to a defendant. That is not the case here.

When this matter first came before us, the difficulty it presented stemmed from the incomplete state of the record. While there was evidence concerning the contents of the letters themselves, there was very little about what information was contained in the potentially less intrusive sources. Under those circumstances, it was clear that the order of production for in camera inspection was premature and had to be reversed, since the inquiry into the existence and contents of less intrusive sources had been minimal at best and the record suggested that such sources might be numerous.

We find reversal on the record now before us more clearly required than before. We are now reasonably certain as to the contents of the letters. Furthermore, the trial court has conscientiously examined the less intrusive sources and we now can say, again with reasonable certainty, that those sources will provide the same information, in many different forms (some more persuasive than the letters) as is contained in the letters. It is clear that defendants have failed to meet the burden of proof imposed on them by the new shield law.

II.

Pizuto’s importance in this case is clear. An alleged former confederate of defendants, Pizuto agreed, as part of a plea bargain on an unrelated murder charge, to continue his participation in the alleged conspiracy while being “wired” so as to record the goings-on among the alleged participants in the conspiracy. His cooperation allegedly began in February 1978, and continued for «more than six months, until his decision to turn informant was announced in the Passaic County courtroom where he entered his guilty plea to the unrelated murder. A number of events transpired thereafter (see Boiardo I, 82 N.J. at 450-452) creating doubt as to whether Pizuto would in fact be called to testify by the State, and would in fact testify if called. At the time of our original decision in this case, it appeared that Pizuto would be called to the stand, but there was speculation that he would assert his Fifth Amendment privilege and refuse to testify as the State’s lead witness. However, since our opinion was filed, the State called Pizuto and, on direct examination, he testified without asserting the privilege.

It has been and continues to be defendants’ contention that the letters sent from Pizuto to Ms. Goldstein contain information that is crucial to the defense’s attack on Pizuto’s credibility on cross-examination. In addition to other available sources, we now have Pizuto’s testimony, taken in the hearing on this matter, as to the contents of the letters. Pizuto said that he sent Ms. Goldstein two letters. The first was addressed to her and in large part thanked her for her “honest” reporting. It also contained instructions for possible publication of the other letter attached. This second letter, although sent to Ms. Gold-stein, was addressed to Major Dintino of the New Jersey State Police. Pizuto testified that this letter dealt with his dissatisfaction with State officials because of their failure to keep a promise that he would not serve any time in prison which was allegedly made to him before he was sentenced on the unrelated murder charge. It berated Major Dintino for the unfair “deal” given to Pizuto by State officials after he had cooperated with them for a long period of time. The contents of the letters were partially confirmed by taped conversations between Pizuto and defendant James Vito Montemarano (referred to in Boiardo I). The tapes were produced during the trial court’s hearing and have been made available to this Court.

Defendants’ proposed use of the letters is the same as before: for cross-examination purposes as a prior inconsistent statement and as evidence of Pizuto’s “bias,” /. e. his motive—a non-custodial sentence—for helping the State’s case, perhaps by lying for it.

III.

In our first opinion in this case, we indicated that defendants had fallen far short of demonstrating the non-availability of less intrusive sources by a preponderance of the evidence, and listed a variety of alternative means for gaining information about the alleged deal promised to Pizuto by the State. The trial judge, in the hearing held on reapplication for production of the letters, held that defendants had successfully shown that the alternative sources we described did not contain a description of what was in the letters. However, this was not the showing required under the statute. Rather, it was defendants’ burden to prove that the alternative sources did not contain information substantially similar to the information contained in the letters—that the State had promised Pizuto a non-custodial sentence, a deal far better than the one he received at sentencing. Therefore, the trial judge’s conclusion as to the non-availability of less intrusive sources was necessarily in error, as was his decision based thereupon.

Our review of the possible less intrusive sources reveals a plethora of information substantially similar to that contained in the letters. The Montemarano tapes, which were made available to the State and the defense, contain numerous statements by Pizuto concerning the “raw deal” he received when he was sentenced to time in prison instead of non-custodial time. It would be inappropriate to detail any of these conversations between Montemarano and Pizuto in the context of this opinion, but they contain statements by Pizuto concerning promises the State made to him, concerning the State’s conduct throughout the investigation and Pizuto’s cooperation therewith.

The letters sent to the sentencing judge by Pizuto and his wife similarly contain information about the meeting held between Pizuto and representatives of the State. According to these letters Pizuto was supposedly promised that he would not serve any time in jail. Although the letters, as a part of the presentence report, would normally be confidential and not a part of the public record, Pizuto had consented to their publication and usé as a less intrusive source. The description of the meeting contained in the letters, including the State’s assurance of a non-custodial sentence and of Pizuto’s disappointment at receiving a custodial sentence, have precisely the same potential value as the letters to Ms. Goldstein do for impeaching Pizuto’s credibility as a witness. In fact, Pizuto testified that the Goldstein letter (the one addressed to Major Dintino), which consisted of one handwritten page was “much, much shallower,” than his letter to the judge.

In his testimony during the hearing on the reapplication for production, Pizuto acknowledged that the sentencing proceedings on the unrelated murder charge contained a presentation by his attorney that was far broader than anything contained in the letters to Ms. Goldstein. A review of the transcript of those sentencing proceedings reveals numerous factual allegations by Pizuto’s attorney of an agreement for a non-custodial sentence and Pizuto’s disappointment with the State. Defendants argued that the proceedings, and the statements made by Pizuto’s attorney, were not a less intrusive source because Pizuto himself did not make the presentation, and because in his testimony in the hearing below, Pizuto said he was not necessarily in agreement with some of the things that his attorney said at the hearing. This argument, which was accepted by the trial court below, must fail. Although there is no question that it was Pizuto’s attorney and not Pizuto who provided the information contained in the sentencing transcripts, it is obvious that he spoke for, and with the authority of, his client, who was sitting next to him. Moreover, Pizuto had a right of allocution before sentence was pronounced, at which time he could have repudiated the statements his attorney had made. Instead, when asked by the sentencing judge whether he had anything to add to his attorney’s presentation or had anything else that he wished to say, he responded in the negative. Certainly, Pizuto is not bound by his attorney’s statements, and is free to deny their accuracy. However, there is no reason that the information provided through his attorney’s statements, with his permission, cannot be presented to the jury, which may give them the same effect as it would to Pizuto’s own statements.

The testimony of Pizuto at the hearing below also provided defendants with an obvious alternative source of information about the various agreements allegedly made between him and the State. Pizuto testified directly in these very proceedings that he had been promised a non-custodial sentence.

Finally, at some time in March 1978, actual conversations between Pizuto and State representatives were taped which are strongly suggestive of a promise of a non-custodial sentence. While the record below does not clearly set forth the circumstances of their introduction into evidence, a portion of a transcript of the tape was read into the record by consent. It is difficult to imagine a more persuasive less intrusive source of Pizuto’s statement that such a promise was made than a recorded version of the actual agreement.

This review leads us to conclude that the defendants have failed to meet their burden of proof under the new shield law: that the information sought could not be gained elsewhere. In fact, although there was no burden on Ms. Goldstein to demonstrate that the information was available through less intrusive alternative sources, we believe that the information provided in the record shows their availability to a reasonable certainty. Therefore, we find it unnecessary to remand the case again for further consideration of these factors, and hold that, absent the discovery of new evidence concerning the contents of the letters or other changed circumstances, Ms. Goldstein need not produce the letters for either in camera inspection or production for use at trial.

IV.

The difference between the majority and the dissent as we view it, is essentially the same as in Boiardo I: the dissent disputes the proposition that circumstantial evidence proving the contents of a document (the letters) could ever be a legally satisfactory substitute for in camera inspection sought by a defendant in a criminal case. The doubts expressed by the dissent as to the adequacy of such circumstantial proof are based on questions concerning Pizuto’s recollection and truthfulness. They lead the dissent to conclude that less intrusive sources have not been shown to be “identical” to the letters. However, there was no challenge whatsoever to Pizuto’s credibility on this issue. As a matter of fact the trial judge noted: “I am satisfied that the source himself [Pizuto] has made every effort to disclose to us what is in the letter.” Our review of the record satisfies us that while he refused to claim certainty, the accuracy of Pizuto’s recollection was clearly established. Through his testimony, the testimony of others and the surrounding circumstances, the content of the letters and the virtual identity to those contents of the information provided by the less intrusive sources have been established to a reasonable certainty. We do not believe the Sixth Amendment requires more.

The dissent suggests that the right of compulsory process is virtually absolute. In addition, it apparently rejects the right of courts to control, within certain constitutional and jurisprudential boundaries, the production and introduction of evidence in a criminal trial once a defendant has made a request therefor. We see no occasion for comment on the former proposition because it is clear to us that the Sixth Amendment right of compulsory process, as well as its analog in our State Constitution, is bottomed on a showing of “legitimate need,” Farber, 78 , quoted by the dissent at 363. It is only where such need has been demonstrated that the “rigorous” constitutional standards of the confrontation and compulsory process clauses attach. While the showing required to establish that need has not been previously defined (there being a lack of decisional law on the subject—see, e. g., Westen, “Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases,” 91 Harv.L.Rev. 567, 586-87 (1978)—it seems clear that the Constitution would not require production of evidence where a lack of need has been demonstrated to a reasonable certainty because precisely the same “necessary” information is readily available through a variety of other, less intrusive sources.

The effect of the dissent would be to deny to the courts the power, through rules of evidence, discovery, etc., to limit the flow of information in a criminal trial, and to require instead in camera production of subpoenaed information in virtually all situations. See Boiardo I, 82 N.J. at 460. The resulting inflexibility is wholly contrary to our present system of justice, and would serve to tie the hands of trial judges who otherwise would be free to exercise discretion in the admission of evidence, within the strictures of the Bill of Rights. We are unwilling to take such a step backward and to “close and lock the door” thereby.

Finally, the dissent does not accept our understanding of the purposes of the new shield law. It suggests that where the information in a confidential document is “known,” the purposes of the privilege are not disserved by compelling the reporter to produce it. However, every compelled production chills confidential sources. One of the purposes of the new shield law is to minimize that adverse effect by confining compelled production to cases where it is necessary. It is precisely where the information is otherwise known that the production of confidential documents should not be compelled, for the obvious reason that it is not necessary.

V.

Defendants claim that the privilege of non-disclosure was waived by Pizuto’s request that Ms. Goldstein read the letters to him before he testified about their contents. The testimony makes it clear that, to the extent the privilege depends on Pizuto’s continued desire to keep the letters confidential, there was no waiver. Pizuto expressly claimed that he did not want the letters themselves published. More to the point, however, the privilege is that of the newsperson and not the source.

The order of the trial court for production of the subpoenaed documents for in camera inspection is hereby reversed.

1 /. e., by obtaining evidence in the future against these defendants as well as by testifying truthfully concerning all matters involved in the case, including his eye witness account of the murder alleged to have been committed by defendant Anthony DeVingo.