affidavit petitioner indicates he will file, and need not further be considered here.
Another of the grounds was that the prosecution urged that an adverse inference be drawn from petitioner's election, permitted under state law, not to attend a hearing at which witnesses might have been present. I found no federal violation in that context because no federal constitutional provision provides immunity from observation of one's person or other physical characteristics. United States v. Mara, 410 U.S. 19, 35 L. Ed. 2d 99, 93 S. Ct. 774 (1973) (handwriting exemplars); United States v. Dionisio, 410 U.S. 1, 5-6, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973) (physical characteristics); United States v. Brown, 920 F.2d 1212, 1215 (5th Cir.), cert. denied 114 L. Ed. 2d 119, 111 S. Ct. 2034 (1991) (requiring suspect to be shaved prior to appearing in lineup); Marsden v. Moore, 847 F.2d 1536 (11th Cir. 1988) (required display of scar), cert. denied 488 U.S. 983, 102 L. Ed. 2d 566, 109 S. Ct. 534 (1988). While across the sweep of history some courts might have found a constitutional infraction on these facts, I do not find it probable that this would now occur.
Apart from the question of the presence of a substantial ground for difference of opinion, 28 USC § 1292(b) indicates that the probable impact on the litigation should be considered in authorizing an interlocutory appeal or its equivalent here. Even if the prosecutor's argument based on petitioner's decision to be absent from the state court hearing violated federal law, it would be necessary to consider whether any such error was harmless. See Brecht v. Abrahamson, 123 L. Ed. 2d 353, 113 S. Ct. 1710, (U.S. 1993); Arizona v. Fulminante, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991); Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); see also Fed.R.Civ.P. 61; 28 USC § 2111.
There is nothing in the petition and I find nothing in the record to suggest that this matter rose beyond the category of a minor incident in the context of the trial. Petitioner makes no contention that the evidence was inadequate to support his conviction or that the court instructed the jury that it should consider petitioner's absence from the state court hearing. The likelihood that the prosecutor's argument would have altered or affected the outcome appears nonexistent. In light of these circumstances, I cannot conclude that an exception to the inappropriateness of sequential appeals should be made; there is no probability that the prosecutor's isolated comment concerning petitioner's absence from a state court hearing would justify his release pursuant to any provision of the Constitution of the United States.
Dated: White Plains, New York
May 6, 1993
VINCENT L. BRODERICK, U.S.D.J.