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July 26, 1976

NORMAN BUTLER, Petitioner,
HAROLD J. SMITH, Superintendent, Attica Correctional Facility, Respondent

The opinion of the court was delivered by: KNAPP

KNAPP, District Judge.

 Petitioner, presently serving a term of life imprisonment at the Attica Correctional Facility for the murder of the Black Muslim leader Malcolm X, seeks his release on a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This application is based on the following claims:

(1) the exclusion of spectators and members of the press from the courtroom during the brief testimony of two of the People's witnesses violated petitioner's right to a public trial under the United States Constitution,
(2) the jury was improperly influenced by the receipt of evidence of the defendants' religious beliefs which had been introduced in order to show a motive for the murder,
(3) the Court, by rebuking counsel for one of petitioner's co-defendants in the presence of the jury, deprived petitioner of a fair trial, and
(4) the trial court's refusal to require the State to provide defendants with a list of the people who had been interviewed by the police during the investigation of the murder, a list of the people who had testified before the grand jury, and a list of the people whom the State intended to call as witnesses at trial violated principles of fundamental fairness.

 Three of the above claims (1,2 and 4) were fully briefed and argued on petitioner's direct appeal of his conviction and both the Appellate Division and the New York Court of Appeals specifically addressed the issues raised thereby, rejecting each of petitioner's objections in thorough, well-reasoned opinions. We see no reason to disturb the conclusions reached therein. The third claim -- that of improper conduct on the part of the trial judge -- was apparently never raised by petitioner on his direct appeal. Nevertheless, rather than dismissing said claim on the sole ground of failure to exhaust (28 U.S.C. § 2254 (b) and (c)), we have determined that on the merits nothing the trial judge did or said can reasonably be construed as depriving petitioner of a fair and impartial trial.

 With respect to the merits of claims (1), (2) and (4), we share the reluctance -- often expressed in this Circuit -- of other "federal judges sitting in habeas corpus . . . to retry the case from the vantage point of their reflective wisdom". U.S. ex rel. Bruno v. Herold (2d Cir. 1969) 408 F.2d 125, 129. Of particular note in this respect is the fact that petitioner was tried and convicted ten years ago and the record we are asked to review has, of necessity, become quite cold. See U.S. ex rel. Smallwood v. LaValle (E.D.N.Y. 1974) 377 F. Supp. 1148, 1153, aff'd without opinion, 508 F.2d 837 (2d Cir. 1974), cert. den., 421 U.S. 920, 95 S. Ct. 1586, 43 L. Ed. 2d 788 (1975) (". . . this court is very reluctant to second-guess the trial court's discretion on a cold record four years hence".) (emphasis added).

 Before we discuss each of petitioner's claims in more detail, a brief sketch of the background facts is necessary to place these claims in their proper perspective. *fn1"

 Malcolm X, a prominent Black leader and important member of the Nation of Islam (commonly known as the Black Muslims), was brutally murdered on the afternoon of February 21, 1965 while addressing a meeting of his followers in the Audubon Ballroom in Manhattan. Prior thereto, he had split with the Nation of Islam in a bitter dispute, taking with him many of its members. On March 10, 1965, a New York County grand jury returned a one count indictment for Murder in the First Degree against Norman Butler (the petitioner herein), Thomas Hagan and Thomas Johnson, the three Muslims claimed to have shot Malcolm X repeatedly with pistols and a shotgun. Trial commenced on December 6, 1965 before Justice Marks and a jury and ended on March 10, 1966 with a verdict of guilty against all three defendants, each of whom were sentenced to life imprisonment. The judgments of conviction were unanimously affirmed by the Appellate Division, First Department on May 22, 1968 (People v. Hagan, Butler and Johnson, 29 A.D.2d 931, 289 N.Y.S.2d 384) and by the Court of Appeals on April 16, 1969, (24 N.Y.2d 395, 300 N.Y.S.2d 835, 248 N.E.2d 588). On October 27, 1969, the United States Supreme Court denied certiorari. Hayer a/k/a Hagan, et al. v. New York, 396 U.S. 886, 90 S. Ct. 173, 24 L. Ed. 2d 161.

 I. Exclusion of the Public and Press

 Petitioner's primary ground of attack against his conviction is that the temporary exclusion from the court of the public and members of the press during the testimony of two of the state's relatively minor witnesses was in violation of his Sixth Amendment right to a public trial. At one point in the presentation of the prosecution's case, an application was made to the Court on behalf of one Ronald Timberlake, who was scheduled to be the next witness, to clear the courtroom. A Mr. W. Eugene Sharpe, attorney for the witness, explained to the Court that Mr. Timberlake was "in mortal fear of testifying in an open courtroom because threats have been made on his life consistently since the incident which is at issue here at trial". Transcript, at 1273-4. Timberlake himself told the Court that he had received anonymous threatening telephone calls (Tr. 1282). Despite the fact that security measures had been taken in the courtroom since the inception of the trial, in that all spectators were searched for weapons before being admitted -- a fact of which the Court reminded the witness -- he remained steadfast in his refusal to testify unless the courtroom was cleared. So great was his fear of retaliation that an offer of police protection was rejected as inadequate. Nor would he agree to testify when threatened with contempt. Reluctant to accede to Timberlake's application, the Court ruled that he would have to take the witness stand, make his refusals and accept the consequences (Tr. 1278). The defendants, however, objected in concert, citing the prejudicial impact on the jury of a fearful witness' steadfast refusal to testify (Tr. 1281-7). After a short recess, the Court ordered all spectators and members of the press excluded during Timberlake's testimony (Tr. 1288). In support of his decision, he cited People v. Jelke (1954) 308 N.Y. 56, 63, 123 N.E.2d 769 for the proposition that the right to a public trial, although a basic privilege, has "never been viewed as imposing a rigid, inflexible strait jacket on the courts. It has uniformly been held to be subject to the inherent power of the court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally further the administration of justice" (Tr. 1289). The court specifically found Timberlake sincere in his belief that testifying for the State would place him in mortal danger and concluded further that he would persist in his refusal to testify in a public courtroom, thus frustrating the adjudicatory process. Accordingly, the court concluded that the facts warranted the exercise of its inherent power to exclude (Tr. 1290-1). Somewhat later in the prosecution's case, an F.B.I. agent, John C. Sullivan, was briefly called to the stand for the purpose, inter alia, of corroborating Timberlake's earlier account of having retrieved one of the murder weapons -- belonging to petitioner's co-defendant, Hagan -- at the scene of the crime. In order to protect Timberlake's identity -- which would of necessity be revealed in Agent Sullivan's testimony -- the court again excluded the press and the public (Tr. 1768-72).

 As noted by the courts in this and other Circuits, the Sixth Amendment right to a public trial is not absolute, but rather, must be balanced against other interests -- such as protecting a witness from intimidation *fn2" or embarrassment, *fn3" maintaining the fairness and orderliness of the proceedings, *fn4" or protecting trade secrets *fn5" or the confidentiality of law enforcement techniques *fn6" -- which might justify exclusion. U.S. ex rel. Lloyd v. Vincent (2d Cir. 1975) 520 F.2d 1272, 1273-4, cert. den., 423 U.S. 937. 46 L. Ed. 2d 269, 96 S. Ct. 296 (1975). In the instant case, the record amply supports the trial court's finding as to the sincerity and depth of the witness' fear and its determination that the orderly administration of justice would be frustrated unless the courtroom was cleared. *fn7" The background of and atmosphere at the trial was such that security measures had already been instituted, at least one juror had expressed fear for his personal safety when his identity had become known (Carter, Tr. 75-6) and the People's first witness, one Thomas, had been afraid to testify in the grand jury (Tr. 472). Indeed, the very nature of the state's evidence against the defendants disclosed an incredibly hostile and vicious climate of hate and revenge which set the stage for a brutal, political murder of a one-time leader now viewed as a traitor. Given such a climate, it is not at all surprising that one called to testify against those claimed to be responsible would fear for his life.

 Equally significant is the relatively minimal duration of the exclusion, for as stated by the Court in U.S. ex rel. Smallwood v. LaValle (E.D.N.Y. 1974) 377 F. Supp. 1148, 1151, aff'd without opinion, 508 F.2d 837 (2d Cir. 1974) cert. den., 421 U.S. 920, 95 S. Ct. 1586, 43 L. Ed. 2d 788 (1975), in cases involving exclusion for the protection of a witness, it is the length of time of the exclusion, rather than the number of people excluded, that is important. Timberlake was only one of twenty-three prosecution witnesses; his entire testimony -- which, as it related to petitioner, was merely cumulative of the testimony of several other witnesses -- occupied 144 pages of a 4,414 page trial record; ...

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