DECISION AND ORDER By written motion dated February 19, 2019, the defendant moves this court for an order allowing him to conceal his identity at trial. He argues that given the extraordinary amount of coverage the defendant, his actions in the courtroom, and the circumstances of the cases against him have received, he cannot receive a fair trial if the jury knows his true identity. In opposition, the People submit that i) the defendant has failed to establish a basis to request such unprecedented relief and ii) the requested relief would not cure the perceived harm alleged by the defendant. For the reasons set forth below, the defendant’s motion to conceal his identity is denied.PROCEDURAL HISTORYIn February 2017, the defendant was arrested and charged with one count of Murder in the Second Degree in connection with the February 2005 death of Rashawn Brazell. Following Mr. Brazell’s death an investigation was conducted by the police. To that end, reward flyers were posted in the neighborhood Mr. Brazell lived as well as in the neighborhoods that he frequented, appeals for information were made to the public through the media and the case was even broadcasted on a segment of “America’s Most Wanted.” The investigation did not result in the identity of an alleged perpetrator and thus the defendant’s name was not mentioned in those media reports.In November 2016, the defendant was indicted for an unrelated murder that occurred in 2004. As a result of new investigative leads regarding the death of Mr. Brazell, the defendant was subsequently indicted for the murder of Mr. Brazell in the instant indictment. Several media outlets reported on the defendant’s indictments and followed the court proceedings, including a court appearance where the defendant refused to be fingerprinted, shouted that he was innocent, and had to be subdued by court personnel. A video of this particular proceeding as well as other proceedings were run by various media outlets.In August 2018, the defendant was tried by a jury before this court for the unrelated 2004 murder. The defendant was found guilty of the charges of Murder in the Second Degree and Kidnapping in the First Degree. On September 7, 2018, the defendant was sentenced by this court to 25 years to life in prison on each count to run concurrently. The media was present throughout the course of the trial, as well as at the court appearances leading up to the trial. Members of different press outlets reported on the trial, the verdict and the sentencing. Notably, during the course of that trial, the defendant failed to raise any claim that the media would affect the defendant’s ability to have a fair and impartial jury.DISCUSSIONIn today’s day and age, it is without question that people have unfettered access to information. Due to smartphone technology and the internet, people can search for almost anything, retrieving that information in a matter of seconds. The media is one of many outlets that produces information over the internet making it available to everyone who searches for it. This information includes data relating to criminal cases. On regular occasion, the media is able to procure damning photographs and video surveillance of an individual suspected of committing a crime and disseminate it to the world. Anyone who wants to find out more can simply search for it and have it at their disposal.Here, the defense submits that given the “heinous allegations against [him]” and “ the intense vilification of [him] on the internet,” the only way to ensure that he receives a fair trial is to allow him to conceal his identity. Both the People and the defense acknowledge that allowing a defendant to proceed anonymously in a criminal trial is unprecedented relief. Media coverage of criminal cases, however, is not a novel issue and over the course of time, countless courts have addressed the issue of juror exposure to pre-trial publicity (see, e.g., Mu’Min v. Virginia, 500 US 415 [1991]; Dobbert v. Florida, 432 US 282 [1977]; Murphy v. Florida, 421 US 794 [1975]; People v. Harris, 19 NY3d 679 [2012]; People v. Quartararo, 200 AD2d 160 [2nd Dept 1994]; People v. Solomon, 172 AD2d 781 [2nd Dept 1991]; People v. Knapp, 113 AD2d 154 [3rd Dept 1985]). As set forth in the article annexed to the defendant’s motion, there are several remedies used by trial courts to minimize the prejudicial impact that pre-trial publicity may have on a defendant’s right to a fair trial (see Jaime N. Morris, Note, The Anonymous Accused: Protecting Defendant’s Rights in High-Profile Criminal Cases, 44 BC L Rev 901 [2003]). These remedies include gag orders on trial participants, prior restraints on the media, extensive examination during voir dire, jury instructions, jury sequestration, postponement of the trial, and change of venue (id.). Here, the defense makes clear that it is “not seeking to limit the news coverage in any way, gag orders or any other similar potential remedy” (see Affirmation in Support of Motion, p 2). Rather, the defense seeks the single remedy of concealing his identity, but offers no explanation as to why alternative remedies would not suffice.The Sixth Amendment guarantees an accused the right to a public trial by an impartial jury. It is without question that “[this] constitutional standard of fairness requires that a defendant have ‘a panel of impartial, ‘indifferent,’ jurors’ ” (Murphy v. Florida, 421 US at 799, quoting Irvin v. Dowd, 366 US 717, 722 [1961]). Courts recognize that high profile cases often lead to pre-trial publicity which places this significant constitutional right in jeopardy (Knapp, 113 AD2d at 158). However as stated by the Court of Appeals, “it is unrealistic to expect and require jurors to be totally ignorant prior to trial of the facts and issues in certain cases” (Harris, 19 NY3d at 686-7, quoting People v. Culhane, 33 NY2d 90, 110 [1973]). To qualify for service, a prospective juror “need not…be totally ignorant of the facts and issues involved” (Murphy, 421 US at 799-800).In highly publicized cases, courts look to the voir dire process to determine whether a defendant has been denied his right to a fair and impartial trial. For example, in Murphy v. Florida, supra, the United States Supreme Court faced the issue of whether the defendant was denied a fair trial when members of the jury learned, through the media, certain facts about the crime for which the defendant was charged and that the defendant had a prior murder conviction. In holding that the defendant was not denied a fair trial, the Court held that the defendant failed to establish that the trial was prejudicial or that the jury selection process created an inference of actual prejudice (Murphy, 421 US at 803). In reaching its decision, the Court found significant that during the voir dire process no juror indicated an inability to set aside any information heard or learned about the case and “none betrayed any belief in the relevance of [defendant's] past to the present case” (Murphy, 421 US at 800).Likewise, in Dobbert v. Florida, supra, the Court had to decide whether the defendant was denied a fair trial due to the significant amount of pretrial publicity surrounding his criminal case. The defendant there did not cite to any specific issue that would lend itself to a finding of constitutional unfairness, but instead claimed that the Court could presume unfairness from the mere fact that the community was made aware of the charges against him. In finding that the defendant failed to show that he was denied the right to a fair trial due to pre-trial publicity, the Court stated, “extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair” (Dobbert, 432 US at 303).In Mu’Min v. Virginia, supra the Court also addressed the defendant’s contention that his Sixth Amendment right to an impartial jury was violated. During voir dire, the trial court asked the prospective jurors whether they had read or heard anything about the defendant’s case. Those who answered affirmatively were asked whether the information they learned would affect their ability to be fair and impartial, whether they could keep an open mind, and whether they could wait until the entire case was presented and not pre-judge the case (Mu’Min, 500 US at 419-20). The defendant’s motion to dismiss for cause all prospective jurors who had been exposed to pre-trial publicity was denied and instead the trial court conducted further voir dire. Eight of the 12 jurors ultimately selected had previously heard about the case, but none had indicated that they had formed an opinion about the case or that they would be biased (id. at 421). In affirming the defendant’s conviction for murder, the Court held that the voir dire process during the trial was proper in determining whether a juror could be fair and impartial. The Court emphasized that “[u]nder the constitutional standard,…, ‘the relevant question is not whether the community remembered the case, but whether the jurors…had such fixed opinions that they could not judge impartially the guilt of the defendant’ ” (id. at 430, quoting Patton v. Yount, 467 US 1025, 1035 [1984]).New York courts have also encountered the issue of whether a defendant has been denied a fair trial due to overwhelming media coverage. In People v. Quartararo, supra, the defendant, who was being re-tried on a murder case, argued that he was deprived of his right to an impartial jury because almost all of the prospective jurors and ultimately 10 of the 12 empaneled jurors had heard about the defendant’s case in the media. The Second Department stated that the statistics cited by the defendant were insufficient “to destroy the presumption that prospective jurors are capable of putting aside whatever preconceptions they might initially have as the result of external influences and of deciding the case strictly in accordance with the trial court’s instructions and in accordance with the evidence” (Quartararo, 200 AD2d at 164). It noted that “[t]he key is to conduct a thorough screening process so that however many closed-minded venirepersons there might be, the jurors ultimately selected have open minds…The key is to identify those persons who will make good jurors and those who will not” (id. at 166-7). The appellate court found that the trial court took enough care to accomplish this task and thus defendant’s contention that he was denied a fair trial lacked merit.Similarly, in People v. Solomon, supra, the Second Department held that despite extensive publicity, there was no showing that the defendant was prejudiced in any way. During voir dire, the jurors expressed their ability to be fair and impartial, and when questioned again after summations, the jurors assured the court that they had neither been exposed to nor influenced by any media coverage (Solomon, 172 AD2d at 782).Additionally, in People v. Knapp, supra, the Third Department found that notwithstanding media reports of defendant’s suppressed confession, defendant was not deprived of a fair trial. The Court held that the voir dire process was “extensive and thorough and provided an opportunity to eliminate jurors who were aware of the suppressed evidence or who were otherwise unable to render an impartial verdict” (Knapp, 113 AD2d at 158).Although the appellate courts have consistently held that a prospective juror’s familiarity with a case from media coverage is not grounds for automatic disqualification, trial courts must take care to obtain clear and unequivocal assurances that despite such knowledge, the juror can remain fair and impartial. The Court of Appeals has held that a trial court’s failure to elicit clear and unequivocal assurances from a prospective juror regarding the ability to be fair and impartial after being exposed to media coverage denies a defendant the right to a fair trial and constitutes reversible error.In People v. Harris, supra, a prospective juror stated during voir dire that she had followed the case in the media and that she had an opinion “slightly more in one direction than the other” (Harris, 19 NY3d at 685). When asked by defense counsel if her opinion would affect her ability to judge the case solely on the evidence, she stated that “it would be ‘a slight part’ of what she would consider” (id.). The defendant challenged the juror for cause. The cause challenge was denied by the trial court and the defendant exercised a peremptory challenge on the juror. In finding that the trial court committed reversible error, the Court wrote, “[t]he prospective juror had a preexisting opinion concerning defendant’s guilt or innocence that cast serious doubt on her ability to render an impartial verdict. At that point, it was incumbent upon the trial court to conduct its own follow-up inquiry…” (id. at 685-6).The cases discussed above demonstrate that an extensive voir dire process is a viable tool in assessing a prospective juror’s exposure to pre-trial publicity and any impact it may have. Here, the court, together with the parties, can conduct a thorough voir dire of the prospective jurors to ensure that the defendant’s constitutional right to a fair trial by an impartial jury is not violated.In addition to an extensive voir dire, jury instructions are an effective remedy in ensuring a defendant’s right to a fair trial. In every case, whether deemed newsworthy or not, once the prospective jury panel is brought into the courtroom, it is customary for the trial court to not only introduce the parties and ask the potential jurors whether they know or have had any contact with the parties, but also to provide a brief synopsis of the allegations and to ask whether the potential jurors know or have read or heard anything about the case. Additionally, a trial court is required to give the jury certain admonitions in its preliminary instructions (see CPL §270.40). Those admonitions must include:that the jurors may not converse among themselves or with anyone else about any subject connected with the trial; that they may not read or listen to any accounts or discussions of the case reported by newspapers or other news media; that they may not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case; that prior to discharge, they many not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial; and that they must promptly report to the court any incident within their knowledge involving an attempt by any person improperly to influence any member of the jury(id.). In its preliminary instructions, this court provides the requisite admonitions by reading directly from the pattern instruction set forth in the Criminal Jury Instructions (CJI). The pattern instruction reads, in relevant part,Do not read, view or listen to any accounts or discussions of the case reported by newspapers, television, radio, the internet, or any other news media.Do not attempt to research any fact, issue, or law related to this case, whether by discussion with others, by research in a library or on the internet, or by any other means or source.In this age of instant electronic communication and research, I want to emphasize that in addition to not conversing face to face with anyone about the case, you must not communicate with anyone about the case by any other means, including by telephone, text messages, email, internet chat or chat rooms, blogs, or social websites, such as Facebook, MySpace or Twitter.You must not provide any information about the case to anyone by any means whatsoever, and that includes the posting of information about the case, or what you are doing in the case, on any device, or internet site, including blogs, chat rooms, social websites or any other means.You must also not Google or otherwise search for any information about the case, or the law which applies to the case, or the people involved in the case, including the defendant, the witnesses, the lawyers, or the judge.Additionally, it is this court’s practice, at each and every recess, to instruct the jurors inter alia “that they are not to discuss the case, or any subject connected to the case, among themselves or with anyone else; that they are not to permit others to discuss the case with them or in their presence; that under no circumstances are they to read anything about the case in any newspaper or magazine, nor are they to listen any radio or TV reports concerning the trial or case; and that they are not to form any opinion as to the guilt or innocence of the defendant.”Here, the defendant speculates that notwithstanding the court’s instructions, the temptation to research the defendant is “just too strong.” He does not and, because jury selection has not commenced, cannot point to any example of a juror violating his or her oath or disregarding the court’s instructions. Contrary to the defendant’s baseless speculation, the Court of Appeals has held that jurors are presumed to “follow their oaths, answer the questions put to them truthfully and abide by the court’s instructions (People v. Harris, 98 NY2d 452, 481 [2002]; see also People v. Baker, 14 NY3d 266, 274 [2010]; People v. Acevedo, 69 NY2d 478, 488 [1987]; People v. Davis, 58 NY2d 1102, 1104 [1983]).Another helpful remedy in decreasing the effect of media coverage on a defendant’s right to a fair trial is postponement of the trial until media attention fades (see Sheppard v. Maxwell, 384 US 333, 363 [1966]; see also Jaime N. Morris, Note, The Anonymous Accused: Protecting Defendant’s Rights in High-Profile Criminal Cases, 44 BC L Rev 901 [2003]). In Quartararo, supra, the length of time between a case’s peak publicity and the trial date was considered a crucial factor in determining the effect media coverage may have on the ability to assemble an impartial jury (Quartararo, 200 AD2d at 165 [11 years elapsed between the discovery of the decedent and the defendant's second trial]). Here, it is alleged that Rashawn Brazell disappeared on February 14, 2005 and that his remains were discovered shortly thereafter. The defendant, as stated above, was arrested and indicted for Mr. Brazell’s murder 12 years later in 2017. There is an even greater lapse between the date of Mr. Brazell’s death in February 2005 and the trial of the matter which is tentatively scheduled to commence in June 2019. Additionally, more than 9 months have passed since the defendant was tried and convicted on the unrelated 2004 murder. This is not a case where the trial takes place close in time to the alleged crime and media reports are fresh in the minds of the prospective jurors. Here, there has been no mention of recent or current media coverage of the defendant or the charges against him or any other indication showing that this case is still pervasive in the minds of Brooklyn’s jury pool.Moreover, Kings County is a large county which unfortunately sees several dozen homicides a year. So far this year, Kings County has seen 35 murder complaints (see NYPD CompStat, Vol 26, No 19). Last year, in 2018, there were 97 homicide cases recorded in Kings County (see https://www.kingscountypolitics.com/brooklyn-records-the-lowest-number-of-homicides-in-2018/). And in 2005, the year Mr. Brazell was murdered, it appears that there were over 200 homicide cases in Kings County (id.). Many of these murder cases were covered by the media. The situation here is vastly different from that of a high profile case in a small town or a smaller county where the case is likely to be the center of public attention (see, e.g., Culhane, 33 NY2d at 96 ["The incident and subsequent legal proceedings --- which constitutes the first time the death penalty was to be considered by a jury in the history of Ulster County --- received considerable exposure in the local media"].The article relied upon by the defendant cites to two instances where a party was allowed to proceed anonymously at trial. Both, however, were in the context of a civil matter, and not a criminal case. In Roe v. Aware Woman Center for Choice, 253 F3d 678 (11th Cir 2001), plaintiff sought to proceed anonymously against an abortion clinic in a malpractice suit. In reversing the District Court’s denial of plaintiff’s motion, the Court, quoting Doe v. Frank, 951 F2d 320, 323 (11th Cir 1992), wrote, ” ‘[t]he ultimate test for permitting a plaintiff to proceed anonymously is whether the plaintiff has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings’ ” (Roe v. Aware, 253 F3d at 685). The Court further reasoned that an abortion is the “ paradigmatic example of the type of highly sensitive and personal matter that warrants a grant of anonymity” (id.).In Doe v. Stegall, 653 F2d 180, 186 (5th Cir 1981), the other civil matter referenced in the article, the Court declined to advance a “hard and fast formula” for determining whether a party should be allowed to proceed anonymously, and instead held that the determination requires a balancing of the party’s privacy against the presumption of open judicial proceedings. There, a mother filed a lawsuit on behalf of her two children against a school that required students to participate in reading biblical and religious passages at the start of the school day. In finding that the litigants should have been permitted to proceed under fictitious names, the Court considered that “the special status and vulnerability of the child-litigants, the showing of possible threatened harm and serious ostracization based upon militant religious attitudes, and the fundamental privateness of the religious beliefs” outweighed the “almost universal practice of disclosure” (id.).Here, the defendant has not shown a privacy interest, let alone one that would outweigh the customary rule of disclosing the defendant’s identity. As stated by the United States Supreme Court, “[o]ne who is reasonably suspected of murder[]…cannot expect to remain anonymous” (Dobbert, 432 US at 303). Furthermore, the defendant has failed to show any prejudice. In order “[t]o demonstrate prejudice…the defendant must show something more than juror awareness that the trial is such as to attract the attention of broadcasters” (Chandler v. Fla, 449 US 560, 581 [1981]).Assuming arguendo that this court were to grant the defendant’s motion to conceal his identity, it would still not remedy the perceived harms asserted by the defendant. The defendant submits that entering his name in an internet search engine results in an immediate display of tremendous unfair and prejudicial information about him. However, as pointed out by the People, an internet search of the decedent’s name or of the allegations in the case, such as “body parts in subway,” would generate the same results as if one had conducted a search using the defendant’s name. Hence, concealing the defendant’s name would not prevent a juror who is willing to violate his or her oath and disregard the court’s instructions from finding media coverage of the defendant and the case.Additionally, this court presided over a pretrial Huntley hearing in which a statement attributed to the defendant was litigated. The court denied the defendant’s motion to suppress the statement and ruled that the statement is admissible in the People’s case-in-chief. In his statement, the defendant told police that he was out of state when Mr. Brazell was killed and did not return to New York City until several weeks after. However, when confronted with a signature bearing defendant’s name in the guestbook from the decedent’s funeral, the defendant admitted that the signature was his and that he had attended the decedent’s funeral.CONCLUSIONThe court finds that the defendant’s constitutional right to a fair trial by an impartial jury can be safeguarded with remedies other than concealment of his identity. The substantial lapse in time between the date of the alleged crime and the commencement of trial coupled with an in-depth, detailed voir dire and this court’s instructions to the jury sufficiently secure the defendant’s right to a fair trial. Accordingly, the defendant’s motion to conceal his identity and proceed to trial anonymously is denied.This constitutes the Decision and Order of the court.Dated: May 15, 2019Brooklyn, New York
