Gannett Company, Inc. v. DePasquale

PETITIONER: Gannett Company, Inc.
RESPONDENT: DePasquale
LOCATION: Seneca County Court

DOCKET NO.: 77-1301
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: New York Court of Appeals

CITATION: 443 US 368 (1979)
ARGUED: Nov 07, 1978
DECIDED: Jul 02, 1979

ADVOCATES:
Bernard Kobroff - Argued the cause for the respondent
Robert C. Bernius - Argued the cause for the petitioner

Facts of the case

Two suspects charged with murder, robbery, and grand larceny requested that the public be excluded from a pre-trial hearing concerning the admissibility of evidence. They argued that an "unabated buildup" of adverse publicity had jeopardized their ability to receive a fair trial. The request was granted by the judge, and no objections were made at the time. The judge then denied press access to the pre-trial hearing and refused to immediately release the transcript of the proceedings. The case was argued and decided with Marshall, Secretary of Labor v. American Petroleum Institute et al.

Question

Did the press and members of the public have a constitutional right under the Sixth Amendment to attend the trial?

Media for Gannett Company, Inc. v. DePasquale

Audio Transcription for Oral Argument - November 07, 1978 in Gannett Company, Inc. v. DePasquale

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 --

And was there a transcript made of the -- after the ejection of the proceedings following?

Robert C. Bernius:

I believe so Your Honor, yes.

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.