Lumbard, Chief Judge, and Smith and Kaufman, Circuit Judges. J. Joseph Smith, Circuit Judge (dissenting).
Philip Orlando attacks, by petition for a writ of habeas corpus filed in the Southern District of New York in October 1963, his 1950 New York State conviction and thirty-to-sixty year sentence for robbery in the first degree, grand larceny first degree and assault second degree. He alleges that he was denied a public trial because the state trial court excluded the public from the courtroom during most of the trial. State remedies having been exhausted,*fn1 Judge Sugarman held a hearing and denied the application. We agree with his conclusion that there has been no deprivation of Orlando's constitutional rights.
Orlando's trial opened in Kings County Court on October 24, 1950 before Judge Goldstein. On the first full day of trial, October 26th, Orlando interrupted an identification of him by the victim by exclaiming, "You never saw me before," "You liar," and "This man is not supposed to say that, your Honor," and was strongly admonished by the court.
The next day of trial, October 30th, the prosecution disclosed, out of the presence of the jury, that one prosecution witness had been threatened by two members of the electrical union to which Orlando belonged with loss of his job if he testified against Orlando, and that another prosecution witness had avoided what might have been a similar situation by telling the man who accosted her in a suspicious manner that she was someone else. In the absence of the jury, Judge Goldstein admonished all those present, saying:
"Whoever is responsible for this kind of conduct toward the People's witnesses, and if I find out who it is, I will hold an investigation on that after this trial is over. I do want to say as a warning, that if there is anybody doing this dirty work and trying to intimidate the witnesses here, they are going to be dealt with according to law; and I again want to issue a warning, that if there is anybody in this court-room, that is interested in this defendant, or in this Electrical Union, that is taking advantage of the fact that they are spectators, and gain information and then use it on the outside to abuse these witnesses, that come here, they will find themselves in a very serious situation. We will go on with the case now."
But Judge Goldstein's troubles had not ended, for later in the afternoon, the record discloses the following:
"Q. You had used the name 'Orlando.' Do you see the man who came into your apartment on March 10, 1950, who was armed with a gun with Lorenzo? Do you see him in Court here? A. Yes, sir.
Q. From your chair will you pick him out? A. Yes, sir, that is him right there.
Q. Where is he? A. Right over there (indicating).
Mr. De Meo: Indicating this defendant.
The Defendant: Do you want me to stand up?
The Court: Will you keep quiet.
The Defendant: Do you want me to ...