Waterman, Moore and Friendly, Circuit Judges. Waterman, Circuit Judge, dissenting.
In September, 1947, petitioner was tried before a jury in the Kings County Court, New York; he was found guilty of robbery, grand larceny, and assault. The judgment of conviction was affirmed. People v. Bruno, 273 A.D. 977, 79 N.Y.S.2d 328 (1948). In 1963, petitioner applied to the New York Courts for a writ of coram nobis. He alleged, for the first time, that he had been deprived of his constitutional right to a public trial in 1947. Judge Leibowitz denied his motion without a hearing and the Appellate Division affirmed the denial. People v. Bruno, 20 A.D.2d 852, 249 N.Y.S.2d 406 (1964). The New York Court of Appeals denied leave to appeal.
In 1964, petitioner sought a writ of habeas corpus in the federal courts. Chief Judge Foley of the Northern District of New York issued the writ for the production of petitioner for a hearing. United States ex rel. Bruno v. Herold, 233 F. Supp. 546 (N.D.N.Y.1964). After the hearing, he sustained the writ and set aside the judgment as void. United States ex rel. Bruno v. Herold, 246 F. Supp. 363 (N.D.N.Y.1965). The respondent, Herold, appealed. In March, 1966, upon motion based on additional affidavits, Chief Judge Foley reaffirmed the previous decision. United States ex rel. Bruno v. Herold, 39 F.R.D. 570 (N.D.N.Y.1966). In September, 1966, we remanded the case for a rehearing. United States ex rel. Bruno v. Herold, 368 F.2d 187 (2d Cir. 1966). After the rehearing, Judge Foley again reaffirmed his previous decision, although "completely cognizant from the writing that the Circuit Court is of a mind to disagree with my ruling, and leans toward flat reversal." United States ex rel. Bruno v. Herold, 271 F. Supp. 491, 492-493 (N.D.N.Y.1967). This is an appeal from that decision.
The facts basic to a determination of this proceeding center around an incident in the courtroom during petitioner's 1947 state court trial in which the trial judge, to meet a special situation which unexpectedly arose, said:
"I think I will clear the courtroom. Have everybody step out except the people in the jury box."
Petitioner, together with two others, was on trial for the crimes of robbery, grand larceny, and assault. A witness, DiBari, was important for the People as the sole identification witness. A few days earlier a jury had been selected and sworn (before Judge Goldstein) but a mistrial had been declared, DiBari having taken the position that he would not testify for the People. Four days later the trial commenced (before Judge Leibowitz). At some time before DiBari testified, the trial judge was made aware of the fact that DiBari was in "mortal fear of the 'gang in the courtroom.'" When DiBari was sworn as a witness, the judge observed "thirty or forty people who were there, and they leaned, some of them leaned forward and grinned and grimaced, and this man sat facing them. And he turned white as a sheet and his hands trembled, and he was speechless. And I knew this from my experience as a criminal lawyer of 22 years and being on the bench for about seven years what was happening here." (Testimony of Judge Leibowitz, 271 F. Supp. at 495.) It was against this background that the trial judge gave his directions to clear the courtroom, except the people in the jury box. Obviously, this meant the people in the other jury box*fn1 because the trial judge could not have excluded the jury in a jury trial. The Judge had to meet an unusual and unexpected courtroom situation in which the interest of the prosecution, the defendant and the witness equally had to be protected. Discretion, not lightly to be disturbed after twenty years by others not then present or faced with the emergency, had to be exercised by the judge responsible for the conduct of the trial. Thus, petitioner was not in fact denied a public trial. The proof supports a conclusion that there was only a partial exclusion on the first day of trial and none on the second.
A Sixth Amendment situation is not reached. There was no in camera or secret trial. It was held in a public courtroom with attorneys, court reporters, court attendants and at least some outsiders present. Surely there is no constitutional right to the presence of all public spectators who might desire to be present -- or to the presence of such element as might be detrimental to an orderly trial uninfluenced by deterrents to truthful testimony.
Most pertinent is the situation and decision in United States ex rel. Orlando v. Fay, 350 F.2d 967, 971 (2d Cir., 1965), cert. denied, Orlando v. Follette, 384 U.S. 1008, 86 S. Ct. 1961, 16 L. Ed. 2d 1021 (1965), where the trial judge excluded all the spectators because he believed that certain spectators were intimidating a witness. In Orlando, Chief Judge Lumbard, writing for the court, said (350 F.2d p. 970):
"In our view, the record amply supports the conclusion that Orlando's right to a public trial was not denied. The trial judge had good reason to believe that many persons in the courtroom were acting so as to interfere with the orderly conduct of the trial. There was good reason for the judge to believe that the defendant's family and friends, including members of his union, at the behest and for the benefit of the defense, were attempting to intimidate and harass witnesses and otherwise to disrupt the proceedings. Under such circumstances the trial judge must exercise his power to exclude those who so act and those who appear to be acting in concert with them lest it be impossible for the trial to proceed and for the jury to pass upon the charges."
On a previous appeal in this case, we said:
"On the basis of that assumption [statements in the affidavits and the reasonable inferences to be drawn therefrom to be true] it is apparent that the act of the judge of the state court in clearing the courtroom was well within his discretion. It was reasonable for him to conclude that he was confronted with a situation where the principal witness for the state had been intimidated and was likely to be further intimidated by the mere presence of certain persons, whom the judge could not specifically identify, so that the orderly proceeding of the state court trial would be completely stultified. Under the circumstances a denial by the court below of the Rule 60(b) motion went beyond the range of permissible discretion. The constitutional right to a public trial is subject to the power of the judge to preserve the fairness and orderliness of the proceedings of the court. United States ex rel. Orlando v. Fay, 350 F.2d 967 (2 Cir. 1965)."
And somewhat analogous is the recent situation in a New York federal court where to maintain courtroom decorum, the trial judge ordered certain defendants in a multi-defendant criminal case to be shackled and even gagged as they sat before the jury for days. United States v. Bentvena, 319 F.2d 916, 930 (2d Cir.), cert denied, sub. nom. Mirra v. United States, 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963).
Of primary importance to decision is the fact that petitioner in his trial was represented by Abraham Brodsky, "an able and experienced criminal lawyer." 271 F. Supp. at 495. He did not object to the exclusion order. He, apparently, did not think that his client's rights were prejudiced by the order. He, in fact, stated upon the hearing that under the circumstances he "offered no objection when the courtroom was cleared of spectators in the belief that an objection under the circumstances, which were known to deponent [Brodsky], would be neither warranted nor sustainable." Affidavit of A. Brodsky, dated Dec. 20, 1965. Brodsky also stated in the same affidavit that "When DiBari was called to the stand to testify, Judge Leibowitz cleared the courtroom with the exception of a number of civilians who occupied a second jury box usually reserved for attorneys and reporters." Thus, petitioner, in fact, had a public trial.
This Court would be closing its eyes to reality if it did not give proper recognition to the quality and experience of petitioner's trial counsel. His knowledge of trial procedures and stratagems may be assumed. This assumption bears both upon the actual situation in the courtroom and upon intelligent waiver were the situation otherwise.
Counsel obviously knew of the Sixth Amendment and his client's rights thereunder. Had he been satisfied that his client was being denied a public trial, he would have been the first to object. Lack of objection then gives support to the other testimony that the courtroom was not completely cleared and that only the element which might have been prejudicial to a fair trial was requested to withdraw. Counsel's recollection that an objection would not have been "warranted" in the light of the situation then presented to him is entitled to considerable weight in determining that petitioner was not deprived of Sixth Amendment rights as a matter of fact.
Even were the facts otherwise, did petitioner have a right to a trial at which were present persons who might seriously have affected the testimony of the witness on the stand? It would be difficult to find any space between the lines of the Sixth Amendment into which to write any such declaration. But again, assuming such a far-fetched right, could it be waived as a matter of lack of importance or trial strategy?
From the commencement until the termination of every criminal trial, countless problems arise as to admissibility of evidence, comments of court and counsel and courtroom incidents. Absent quite extraordinary circumstances, the trial counsel and the trial judge then on the scene should be presumed to be the best qualified to appraise the situation requiring trial rulings. Federal judges sitting in habeas corpus should be most reluctant to retry the case from the vantage point of their reflective wisdom.
In finding no waiver of petitioner's alleged rights in this case, Judge Foley relied on Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). In Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965), the Supreme Court said:
"* * * counsel's deliberate choice of the strategy would amount to a waiver binding on petitioner and would preclude him from a decision on the merits of his federal claim either in the state courts or here. Although trial strategy adopted by counsel without prior consultation with an accused will not, where the circumstances are exceptional, preclude the accused from asserting constitutional claims, see Whitus v. Balkcom, 333 F.2d 496 (C.A. 5th Cir. 1964), we think that the deliberate bypassing by counsel of the contemporaneous-objection rule as a part of trial strategy would have that effect in this case." Supra, at 451, 85 S. Ct. at 569.
However, in reading Fay and Henry, recognition must be given to the fact that they cover situations along quite distinct lines. Along the Fay line are decisions whether to plead guilty, to appeal, and the like. Along the Henry line are the decisions, such as the present one, dealing with courtroom tactics and matters which only trial counsel would be equipped to pass on in the exercise of judgment under the circumstances presented by the then exigencies of the trial. Of necessity trial strategy must be entrusted to counsel familiar with the courtroom scene and whose decisions must be made in quick reaction as situations, usually unexpected, may arise. The Fay type of decision is apt to be made in the less pressurized atmosphere during conferences between defendant and counsel and related to more fundamental questions.
Here at most there was a single incident which at best could be likened unto discretionary courtroom "housekeeping." And despite the technical arguments, none has shown that petitioner was prejudiced in any way and did not receive a fair trial.
WATERMAN, Circuit Judge, dissenting:
I respectfully dissent from my brothers.
In his fourth well-considered opinion in these proceedings, Judge Foley, after a second evidentiary hearing which we ordered, for the second time has sustained Bruno's writ of habeas corpus, and a second time has ordered that Bruno be conditionally released from New York State custody. Judge Foley found that petitioner's Sixth Amendment right to a public trial was violated when the state trial judge cleared the courtroom during petitioner's New York State trial for armed robbery, grand larceny, and assault. When this case was before this Court previously, I joined in our per curiam decision, United States ex rel. Bruno v. Herold, 368 F.2d 187 (1966). When we remanded it with instructions ...