Anatomy of Neulander judge’s gag on media

From the Winter 2002 issue of The News Media & The Law, page 42.

In July 2001 before the start of the first trial of Rabbi Fred Neulander, Camden County Superior Court Judge Linda Baxter filed an order titled “Governing Media Coverage during Trial Proceedings.” The order barred news organizations from revealing the name or identifying description of any juror and forbade press contact with jurors.

The order, in part, read:

“13. Neither the identity nor descriptions that would reasonably identify any juror may be publicized, in any way, unless authorized by further Order of this Court. . . .

15. Media representatives shall not contact or attempt to interview any juror or potential juror.”

Baxter provided no notice of a hearing to give the press an opportunity to be heard. One of the questions not fully adressed in the Order is whether the provisions apply to the book authors who observed the trial.

Before jury selection, Philadelphia Newspapers Inc., owner of the Philadelphia Inquirer, and the Associated Press asked the court to strike Paragraph 13 of the order as an unconstitutional prior restraint and to amend or modify Paragraph 15 to provide that the ban on juror contact applied only until any juror or prospective juror was discharged.

The court refused an immediate hearing on the matter and instead heard argument 10 days after jury selection. The news media sought an appeal, but the motion was denied pending the trial court hearing on the motion.

When the trial court finally heard arguments on the motion, it refused to vacate Paragraph 13, finding that the Supreme Court guidelines for camera coverage of court proceedings, which prohibits “photography of a jury . . . such as to permit visual recognition of jurors,” authorized the court to prohibit the press from identifying jurors in any way.

On the motion to amend Paragraph 15, the trial court ruled that no discharged jurors were to be contacted prior to verdict, but that the media would have to bring the issue to court after the jury verdict to determine whether contact could be made then.

Even though jurors’ names were read in open court, the press was barred from publishing the names.

After the court declared a mistrial on Nov. 13, the news media asked Baxter to change her order. She refused. The news media appealed.

During oral argument before the Appellate Division, the court learned that Baxter had promised jurors that their identities would never be publicized, despite the lack of such a provision in New Jersey court rules.

But the Appellate Division affirmed the prior restraints, finding that the defendant’s Sixth Amendment right to a fair trial might otherwise be impaired. The court said:

“Specifically that the likelihood is that the deliberations of the discharged jurors would be discussed and published. . . . The singular vice of disclosure of prior deliberations is its capacity for destroying the ability of the jury on retrial to deliberate on the issue of guilt or innocence free of extraneous influence. This potential for harm inheres in the subtly coercive effect the media’s account of prior deliberations would undoubtedly have on the ability of the jury on retrial to be fair.”

The news media appealed to the New Jersey Supreme Court. The Reporters Committee for Freedom of the Press, along with The New York Times, Advance Publications and the New Jersey Press Association, filed a friend-of-the-court brief in support. — AG