Nevertheless, the public's right to access to criminal trials will give way "in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller, supra, 467 U.S. at 45, 104 S.Ct. at 2215, 81 L.Ed. 2d at 38; see State v. Williams, 93 N.J. 39, 63, 70 (1983); see also State v. Marshall, 199 N.J. Super. 502 (App.Div. 198 5). The presence of these First Amendment rights only reinforces my conclusion that capital sentencing trials are distinct from other capital proceedings and that, given the rights at stake, the presentation of mitigating evidence in such proceedings may never be in camera.
The Appellate Division affirmed that order. State v. Marshall, 199 N.J.Super. 502, 489 A.2d 1235 (1985). The court then changed the venue to Atlantic County.
At the hearing on the closure application the court closed a portion of such hearing to permit the court to identify the critical issues so as to ensure that potentially prejudicial material is not prematurely revealed that would adversely impact on defendant's rights under the Sixth Amendment of the United States Constitution and Art. I, par. 10 of the New Jersey Constitution. State v. Williams, supra at 73; State v. Marshall, 199 N.J. Super. 502 (App.Div. 1985). During this in camera proceeding counsel for the press was permitted to remain subject to their viva voce representation that defendant's proffer by way of identification of critical issues would remain confidential and not be revealed to the assembled reporters.