who described the profile. The Second Circuit held that the order was nevertheless broader than necessary because only a small part of the witness' testimony was actually about the profile. The conviction was accordingly reversed. Id.
Thus, Clark and Ruiz-Estrella both involved exclusion orders that were unnecessarily broad as formulated. By contrast, it is undisputed that the closure order in this case was a proper means of protecting the confidentiality of Officer Nieves' identity. The challenge raised here is to the inadvertent continuation of a lawful order, an issue on which Clark and Ruiz-Estrella offer little guidance.
Petitioner also relies on Daniel v. Kelly, No. 78-CV-830E, 1990 WL 130523 (W.D.N.Y. Aug. 31, 1990). In that case, the courtroom was ordered closed to protect the identity of an undercover agent/witness, and remained closed even after the trial court was told that the witness had testified in an open proceeding just six weeks earlier. On habeas review, the district court concluded that, by continuing to seal the courtroom after learning of the witness' prior exposure, the trial judge had made the closure broader than necessary to protect the witness' identity. Id. at *7.
Petitioner argues that the result in Daniel should obtain here. I disagree. Daniel involved erroneous closure, not inadvertent closure. After the trial judge became aware that the undercover agent had recently testified in open court, he consciously persisted in sealing the courtroom in violation of the right to a public trial. Here, by contrast, the trial judge apparently believed that her concededly lawful order closing the courtroom for Nieves' testimony had been executed precisely as she had formulated it. As it turned out, it had not, but the exclusion of the public from the courtroom was immediately ended the moment it was brought to light. Finally, it bears noting that the improper portion of the closure in Daniel was significantly more lengthy than the approximately 30-minute period petitioner's trial was improperly sealed.
Finally, petitioner argues that the continued closure, while inadvertent, nevertheless had the effect of undermining the purposes served by the constitutional right to a public trial. In Waller, 467 U.S. at 46, the Supreme Court described these purposes as follows: (1) to ensure that the accused is tried fairly; (2) to remind the prosecutor and the judge of their responsibility to the accused and of the importance of their functions; (3) to encourage witnesses to come forward; and (4) to discourage perjury. See also In re Oliver, 333 U.S. 257, 271 n.25, 92 L. Ed. 682, 68 S. Ct. 499 (1948); Douglas v. Wainwright, 739 F.2d 531, 532 (11th Cir. 1984), cert. denied, 469 U.S. 1208, 84 L. Ed. 2d 321, 105 S. Ct. 1170 (1985).
There is little reason to believe that these purposes will be served by granting the requested writ. First, the public was allowed to watch the greater portion of the trial, including all of the prosecution's case (except for the part that was properly sealed). Second, the inadvertent nature of the continued closure virtually eliminates any concern that the trial lacked the usual deterrent to prosecutorial or judicial abuses that is provided by public trials. If the authorities were unaware that their actions were protected by a closure order, they were no more likely to give way to such abusive impulses than if they had had no such protection. Finally, there was ample time for potential witnesses to come forward, and there is no indication in the record that the inadvertent extension of the closure order precluded any from doing so.
For the foregoing reasons, petitioner's claim for habeas corpus relief is denied and the petition is dismissed. The Clerk of the Court is advised that this Order closes the case.
JOHN GLEESON, U.S.D.J.
Dated: Brooklyn, New York
October 18, 1995