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COMMONWEALTH PENNSYLVANIA v. MARIO GENOVESE APPEAL NEP COMMUNICATIONS (01/09/85)

filed: January 9, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
MARIO GENOVESE APPEAL OF NEP COMMUNICATIONS, INC., T/D/B/A WNEP-TV NEWS



No. 2468 Philadelphia, 1984, Appeal from Order of the Court of Common Pleas, Criminal Division, of Lackawanna County, No. 83 CR 54 (A-C).

COUNSEL

Bruce Morgan, Scranton, for appellant.

Charles W. Johns, Philadelphia, for Commonwealth, appellee.

Wickersham, Wieand and Hester, JJ. Hester, J., files a dissenting statement.

Author: Wieand

[ 337 Pa. Super. Page 488]

Can a trial court temporarily restrain the news media from publishing, broadcasting or otherwise disseminating the names and addresses of jurors summoned or selected to hear a homicide case? NEP Communications, Inc., t/a WNEP-TV News (WNEP), the appellant herein, contends that the order entered during the trial of Mario Genovese was entered without cause and constituted an unconstitutional prior restraint upon its right to publish. We are constrained to agree; and, therefore, we reverse.

Mario Genovese, a Lackawanna County physician, was charged with murdering his wife. On the ninth day of trial in October, 1983, defense counsel became seriously ill and was hospitalized. The court declared a mistrial. Prior to retrial, the Court of Common Pleas granted a change of venire; but its order was reversed by the Supreme Court. Jury selection for the second trial commenced on September 4, 1984. The initial pool of venirepersons consisted of forty-three residents of Lackawanna County. Following general instructions to the prospective jurors, the trial judge said:

[T]he media will appreciate that we have not released the name of any individual juror, and we order that you not use the names, for publication purposes, the names of any of these jurors during this time. Later on during the trial, the names of the jurors will be released.

The judge ordered further that "no person or any representative of the news media [shall] contact in any way any prospective juror or anyone who should be selected in this matter." Defense counsel requested sequestration of the jury, but his request was denied because of the expense that sequestration would entail. As voir dire examination of the prospective jurors proceeded, each stated his or her

[ 337 Pa. Super. Page 489]

    name in open court, with members of the news media present.

Following a noon recess, the trial judge stated the reasons for his earlier order as follows:

Our experience has been that in major cases too many people have no regard for justice. We want to protect jurors or their families from unnecessary harassment or calls at their home . . . . The Court feels [that] if they did not impose this type of a protective order, it would otherwise be necessary to sequester the jurors. Of course, we would be then responsible for a lot of additional costs which we feel is unnecessary. It's very expensive. In addition . . ., it's a tremendous drain on the jurors themselves.

The trial judge observed further that voir dire would not be closed and that the news media would be permitted to receive the names of all the jurors so long as they did not print those names until permitted to do so by the court. Later, the court granted the request of a local television station to interview jurors who had been excused but admonished that neither the names of those excused jurors nor the interviews themselves could be published or broadcast until a jury panel had ...


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