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June 2, 1995

CHARLES OKONKWO, Petitioner, against PETER LACY, Respondent.

The opinion of the court was delivered by: SHIRA A. SCHEINDLIN



 Petitioner Charles Okonkwo, a New York State prisoner, filed this petition for a writ of habeas corpus ("Pet.") pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1990 state court conviction, asserting that his Fourteenth Amendment rights and his Sixth Amendment right to a public trial were violated. He argues that the trial court's order to close the courtroom during the testimony of an undercover police officer called by the prosecution failed to meet any of the four requirements for closure set forth in Waller v. Georgia, 467 U.S. 39, 48, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (1984).

 Petitioner appealed his conviction, and the New York State Supreme Court, Appellate Division, affirmed. People v. Okonkwo, 176 A.D.2d 163, 574 N.Y.S.2d 186 (1st Dept. 1991). The Court of Appeals of New York denied petitioner's application for leave to appeal. People v. Okonkwo, 79 N.Y.2d 862, 580 N.Y.S.2d 733, 588 N.E.2d 768 (1992). This action followed. *fn1"


 Petitioner Okonkwo was arrested on October 22, 1989, for the sale of fifteen dollars of crack cocaine to undercover officer John Swift of the New York City Police Department, Manhattan South Tactical Narcotics Team. Pet. at PP 2, 13; Trial Transcript, February 5-6, 1990 ("Tr.") at 3, 28. During this police operation, known as a "buy and bust," Officer Swift acted as a purchaser of the narcotics while a different officer made the arrest. Tr. at 28, 84-86.

 Petitioner was tried by a jury in New York State Supreme Court, New York County, and convicted of one count of criminal sale of a controlled substance in the third degree, N.Y. Penal Law § 220.39(1) (McKinney 1989). Pet. at PP 1,5,6. The judgement was entered on March 14, 1990. Pet. at P 2.

 Prior to trial, New York Supreme Court Justice Jay Gold conducted what is known in this state as a Hinton hearing, an in camera proceeding to determine the appropriateness of excluding the public during trial testimony. Tr. at 2-11. See People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972), cert. denied, 410 U.S. 911, 35 L. Ed. 2d 273, 93 S. Ct. 970 (1973). At the hearing, Officer Swift testified under oath that: he would continue to act as an undercover agent in the same area in which he made the buy from petitioner (Cooper Square); he believed his life would be endangered in a working area where his undercover identity was known; he had testified as an undercover before several grand juries; there may be other cases in which he would be called to testify; there was no continuing investigation with respect to Okonkwo. Tr. at 3-8.

 The court found that Officer Swift would continue to operate undercover in the general area of Cooper Square and that his life might be jeopardized if his identity were exposed. Tr. at 8-11. The trial judge ordered the courtroom closed to the public during the testimony of Officer Swift. Tr. at 11.


 A. Closure of Criminal Proceedings to the Public

 Eleven years ago, the United States Supreme Court established a four-part test to determine when a suppression hearing may be closed to the public. The Court held that:


[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.

 Waller, 467 U.S. at 48 (citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819 (1984)). Failure to satisfy all four prongs of the test prior to an order of closure is a violation of the Sixth Amendment, *fn2" and a showing of prejudice need not be made to obtain relief where such violations occur. See Waller, 467 U.S. at 49, n.9. Federal courts presiding over criminal prosecutions and appeals have consistently applied the Waller test to the closure of trial testimony. See e.g. Vidal v. Williams, 31 F.3d 67 (2d Cir. 1994) (exclusion of all observers), cert. denied, 130 L. Ed. 2d 672, 115 S. Ct. 778 (1995); Woods v. Kuhlmann, 977 F.2d 74 (2d Cir. 1992) (exclusion of defendant's family members); Ip v. Henderson, 710 F. Supp. 915 (S.D.N.Y.), aff'd without opinion, 888 F.2d 1376 (2d Cir. 1989). Therefore, the Waller framework controls this action.

 B. Procedural Default in Habeas Actions

 The Court must first consider whether procedural default blocks consideration of the merits. On a petition for a writ of habeas corpus, district courts must respect state procedural rules and consider whether petitioner's claims are procedurally barred. *fn3" See Coleman v. Thompson, 501 U.S. 722, 729-732, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). In deference to principles of federalism and comity,


[the independent and adequate state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.

 Id. at 729-730. Together with its companion case, Ylst v. Nunnemaker, 501 U.S. 797, 115 L. Ed. 2d 706, 111 S. Ct. 2590 (1991), Coleman limited the scope of the presumption established in Harris v. Reed, 489 U.S. 255, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989), that federal review is barred only when the state court clearly and expressly notes its reliance on procedural default. Id. at 263. Today, "the Harris presumption is to be applied only after it has been determined that 'the relevant state court decision. . . fairly appear[s] to rest primarily on federal law or [is] interwoven with [federal] law." Ylst, 501 U.S. at 802 (quoting Coleman, 501 U.S. at 740). *fn4" Nevertheless, the Supreme Court has established that, under certain circumstances, federal courts may reach the merits of a particular claim, even in the face of clear procedural default. *fn5" "State procedural bars are not immortal. . . they may expire. . . [if] the last state court to be presented with a particular federal claim reaches the merits." Ylst, 501 U.S. at 801.

 Therefore, this Court must determine the extent to which the merits of petitioner's claims are reviewable.

 C. Whether Closure of the Courtroom during the Testimony of Undercover Officer Swift Was Warranted Under the Circumstances *fn6"


1. Adequate Findings to Support Closure


a. Procedural Default

 On direct appeal to the Appellate Division, the State argued that the "adequate findings" claim failed both on the merits and due to procedural default. The latter argument was premised on petitioner's alleged failure to interpose a timely objection to the trial court's treatment of specific Waller requirements, pursuant to N.Y. Criminal Procedure Law (CPL) § 470.05 (2) (McKinney 1994). *fn7"


i. The Ruling by the Appellate Division

 The Appellate Division did not explicitly address procedural default with respect to the fourth prong of the Waller test. That court did, however, find:


. . . we perceive no abuse of discretion by the trial court in granting the [closure] request after hearing. . . . Inquiry by the People, the defense, and the court, indicated that the officer was then active as an undercover officer in the area of defendant's arrest herein, involved in ongoing narcotics investigations conducted in that area, and likely to be assigned to future undercover narcotics operations in the same area. Thus, jeopardy to the undercover officer's effectiveness and, indeed, to his life by exposure of his identity was properly determined [by the trial court] to be an overriding interest. . .

  People v. Okonkwo, 574 N.Y.S.2d at 187. In this passage, it appears that the Appellate Division directly addressed the merits of the findings prong of the Waller test. In order to determine whether the lower court abused its discretion in making its findings substantiating closure, the Appellate Division relied on the record and the trial court's findings. *fn8" Finding no such error by the trial court, the Appellate Division reached the merits rather than embracing the State's contention of a procedural default. *fn9"


ii. The Hearing before the Trial Court

 Following a brief inquiry into the nature and future of Officer Swift's duties, *fn10" the trial judge asked defense counsel, Mr. Melvin Reiss, whether he had any argument for the record. This colloquy followed:


MR. REISS: Just briefly, your Honor. I don't think there has been special circumstances in this case.


THE COURT: I think that what needs to be shown to justify excluding the public is the -- basically, putting the -- or jeopardizing the continuing undercover activity of the officer, that he says.


And I find this fact: that he continues to function as an undercover officer in the general area in which this crime occurred; that the -- and it's clear to enough then that if anybody were to come into this courtroom and see him, that his knowledge of his identity might well jeopardize his life. It seems to be as simple as he is not out of business.

 Counsel objected *fn11" to the trial judge's finding:


MR. REISS: . . . . Why would this case be different from any other case in which an undercover officer testifies that [he] is still operating on the streets. And I don't think there is any difference. [And in view of various New York state court decisions] this case is no different from every other case. And I don't think there was really anything elicited as far as special circumstances.


Naturally if there were any danger, I would understand, and I would agree with your Honor. I don't think that this is really special.


. . . .


Just in the sense that we would have to exclude every -- we would have to close the courtroom for every undercover cop. And I don't think that's what this case ought to do. . . . I think if that were the case, to close the courtroom for every undercover cop, I think that might be more damaging then [sic] occasionally closing the courtroom.

 The trial judge responded with a final statement, reiterating his prior reasoning. Immediately following this, the court ordered closure.


THE COURT: It seems to me that if this officer continues to function in the area in which he described, the knowledge of who he is would result in jeopardizing his life. Isn't that so? That if he continues to function in Manhattan South, knowledge of what he looks like, of who he is, is going to jeopardize his life? Can anybody seriously quarrel with that proposition? [To this question, Mr. Reiss responded in the negative].


Given that, it would seem to me that we ought to make sure that nobody sees him.


My sense is that, from reading the cases, is that it is a matter in which I have some discretion, although the people have a heavy burden, but I think they have met their burden and they have showed he is a functioning undercover officer; that has continuing investigations, as he put it, "maintenance". He keeps going back into the same areas; one of them being the very area involved in this case.

 Tr. at 8-11.


b. The Merits

 The record reflects that the trial court made a conclusory determination rather than well-reasoned findings. *fn12" This does not necessarily mean that the government interest was insufficient to merit closure in this case. Rather, the record simply does not support the closure order. *fn13" The Supreme Court established,


the right to an open trial may give way in certain cases to other rights or interests, such as. . . the government's interest in inhibiting disclosure of sensitive information. . . . "The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

 Waller, 467 U.S. at 45 (quoting Press-Enterprise, 464 U.S. at 510) (emphasis added).

 Inquiries and findings supporting closure must be made on a case-by-case basis; they must be tailored to factual and circumstantial particulars. See e.g., Jones v. Henderson, 683 F. Supp. 917, 923 (S.D.N.Y. 1989) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982)). The record is devoid of information as to certain facts that might assist in its review. For example, an inquiry into specific threats against the witness is of considerable importance to any determination affecting closure. *fn14" A substantiated representation that a threat has been made against an officer strongly supports the government's concern. On the other hand, the absence of a specific threat is not, in and of itself, sufficient to preclude closure. Other important facts include the nature of the threat and the degree to which it is realistic.

 Similarly, the trial court failed to inquire into the number of buy and bust operations in which Officer Swift had participated. *fn15" The answer to this question may reveal, inter alia, indications of law enforcement's efforts to protect their undercover officers and the number of people who pose a threat of exposing the officer. The Court did discover that Officer Swift had testified before many grand juries. While this fact would appear to undermine the need for closure, further inquiry into this topic is warranted. The degree to which exposure to a large number of local citizens affects undercover status relates to the central issue of the value or effectiveness of closure. Cf. In re Application of the Herald Co., 734 F.2d 93, 101 (2d Cir. 1984) (inquiring into exposure of information prior to courtroom closure). There was no inquiry as to how Officer Swift arrived at the courthouse (by police car?), how he entered the courtroom (public or private entrance?). Additionally, the record is silent as to what the officer wore to court (police uniform?). Important factors also include possible actions that law enforcement can take to safeguard their officers. For example, an inquiry into the feasibility of disguise in the field (and, perhaps, in court) is merited by the constitutional importance of this issue. It is critical, too, that findings adequately supporting closure clearly demonstrate the factual basis for the other three Waller requirements.

 Accordingly, this Court holds that the bare finding that an undercover officer will continue to operate in a given area and believes personal safety may be jeopardized from exposure of his or her identity does not, in and of itself, satisfy the Supreme Court's guidelines for the application of the Sixth Amendment. To hold otherwise would be to sanction an impermissible per se rule and to open the door for over-utilized, under-scrutinized courtroom closure. Cf. Ip, 710 F. Supp. at 918; Jones v. Henderson, 683 F. Supp. at 923.

 Waller dictates that closure is to be "rare," permissible only when "the balance of interests [are] struck with special care." Id. at 45; see also Vidal, 31 F.3d at 69 ("a courtroom can [not] be closed to a defendant's relatives [simply because] the relatives live (or, presumably, work) in the county where the undercover officer operates. Such a holding would violate the rule that closure is reserved for rare circumstances in which 'the balance of interests [are] struck with special care'") (citations omitted); Cojab, 996 F.2d at 1405 ("power to close a courtroom where proceedings are being conducted during the course of a criminal prosecution. . . is one to be very seldom exercised, and even then only with the greatest caution, under urgent circumstances, and for very clear and apparent reasons).

 These circumstances involve highly important, but frequently competing, concerns. Consequently, courts must continuously strive to protect both the constitutional right and the governmental interest. Such a delicate balance demands nothing short of close judicial scrutiny and carefully tailored treatment.

 2. Consideration of Reasonable Alternatives to Closure

 Petitioner argues that the trial court failed to consider alternatives to full closure of the courtroom during Officer Swift's testimony. Brief of Petitioner In Support of Petition, ("Pet. Br.") at 13-14. It is manifest from review of the short record that the trial court failed to satisfy this prong of the Waller test. Nevertheless, this claim is unmistakably procedurally barred by virtue of the Appellate Division's determination that this "argument, first raised on appeal. . . is [] unpreserved for appellate review by appropriate and timely objection (CPL § 470.05)." People v. Okonkwo, 574 N.Y.S.2d at 187. See Coleman, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546; Ylst, 501 U.S. 797, 115 L. Ed. 2d 706, 111 S. Ct. 2590.

 Therefore, pursuant to Fed. R. Civ. P. 72(b) and 28 U.S.C. 636(b)(1)(C), the Court accepts and adopts the Magistrate's recommendation to the extent it referred to the second and third Waller requirements.


[This] argument was raised for the first time on petitioner's direct appeal, and the Appellate Division held that it was not preserved for review in that court. It is accordingly not open for consideration on federal habeas review under Coleman. . .

 Mag. Tr. at 38. *fn16"

  3. Breadth of the Closure

 In respondent's brief to the Appellate Division, this Waller prong was inextricably linked to the alternatives prong. *fn17" Arguments presented by the parties to a state appellate court assist a reviewing court in its determination of what issues were presented where the state court's precise ruling is unknown. See Martinez, 675 F.2d at 54-55. While the Appellate Division did not specifically refer to the breadth of the closure, *fn18" this Court must, nonetheless, construe that opinion as creating a procedural bar to review of this claim. Id.; see also Epps v. Commissioner of Correctional Services, 13 F.3d at 618; Quirama, 983 F.2d at 13-14.

 4. Existence of an Overriding Interest Likely to be Prejudiced

 Respondent does not contend that the argument based on the first Waller requirement is procedurally defaulted. Indeed, the merits of this question predominated in the proceedings below. See People v. Okonkwo, 574 N.Y.S.2d at 187.

 Protecting the life of an undercover officer has been deemed to constitute sufficient justification for closing a courtroom to the public. See e.g. Woods, 977 F.2d at 76-77 (quoting Ip v. Henderson, 710 F. Supp. at 918); see also Cojab, 996 F.2d at 1408; In re Application of the Herald Co., 734 F.2d at 100-101. *fn19" Moreover, there is precedent for the proposition that, partial closure -- that is, where at least some of the proceeding is open to the public -- only requires a substantial reason. See Woods, 977 F.2d at 77; see also Herring v. Meachum, 11 F.3d 374, 380 (2d Cir. 1993), cert. denied, 128 L. Ed. 2d 353, 114 S. Ct. 1629 (1994).

 The problem in this case, however, is that the trial court failed to make sufficient findings, as required by Waller. It did not substantiate its assumptions about the officer's and the government's interests. Accordingly, this Court is unable to determine -- or to approve the trial court's determination -- that closure was supported by a substantial reason or an overriding interest that was likely to be prejudiced. *fn20"


 For the foregoing reasons, the petition for a writ of habeas corpus is conditionally granted. The case is remanded to the New York Supreme Court for an evidentiary hearing as to the propriety of the closure of the proceedings to the public during the testimony of the undercover officer. Such a remedy has been approved by the Court of Appeals of this Circuit. See e.g. Senna v. Patrissi, 5 F.3d 18, 20 n. 1. (2d Cir. 1993) (per curiam); Howard v. Senkowski, 986 F.2d 24 (2d Cir. 1993); cf. Waller, 467 U.S. at 49-50; Jackson v. Denno, 378 U.S. 368, 391-396, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964).

 Based on the evidence presented, the trial judge shall, consistent with this opinion and the legal principles enumerated herein, issue explicit findings. If those findings adequately support the order of closure, the conditional grant of the petition shall be vacated, and the writ shall not issue. Alternatively, if the findings compel the conclusion that closure was improper, or if sufficient evidence cannot be adduced at the hearing, then the petition shall be granted.

  The State may defer release of the prisoner pending final disposition of the writ. If a permanent writ is issued, the State may move the indictment for retrial within sixty days. Absent retrial or appeal, the prisoner shall be released from all custody arising from the conviction in question.


 Shira A. Scheindlin


 Dated: New York, New York

 June 2, 1995

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