New death penalty law allows closed interviews, ignores press

03/21/95

NEW YORK–Judges in capital cases need only find “good cause” to hold closed interviews with prospective jurors about matters such as racial bias, and may seal the transcripts of those interviews at the request of the prosecution or defense, according to a New York death penalty statute signed into law in early March.

After a conviction, judges also may order a similar, closed interview with jurors before sentencing.

The U.S. Supreme Court has previously ruled unconstitutional some states’ legislation that narrowed access to criminal proceedings, holding that the First Amendment provides a qualified, public right of access to trials and juror interviews in criminal cases.

For a judge’s closure or sealing order to be constitutional in most criminal proceedings, the high court has said that the judge must make findings on the record to demonstrate that the order was narrowly tailored to serve a compelling interest and that no less restrictive alternative was available.

Richard Winfield, counsel to the Associated Press and the New York Newspaper Publishers Association, raised such concerns in written comments to New York legislators prior to the law’s passage. Winfield told News Media Update that the legislators admitted they had not considered the First Amendment implications of the bill.

Lawmakers did not amend the language. They did agree, however, to read statements into the public record indicating that a judge must make “written findings, based on clear and convincing evidence,” that a compelling interest exists for the order and that less restrictive alternatives are unavailable, Winfield said. The legislators’ statements could be considered in cases involving the law, but Winfield said he doubted they would have much weight in challenging a judge’s decision to close a proceeding or to seal a transcript.

The law also does not provide for media witnesses to executions. Reporters traditionally have witnessed executions in most states with death penalties, but the New York statute provides that the state corrections commissioner would pick six witnesses. The law does not specify who those six people would be.

Aides to the New York governor acknowledge that the law would allow the state to exclude reporters, but say that there is no intention to do so, according to the Associated Press. A spokesman for the acting corrections commissioner says there are plans for media access, but the details have yet to be worked out, the Associated Press reported.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.