The chief question is whether by closing the courtroom even as to petitioner's family and friends during the testimony of Bellamy, the trial court denied petitioner his right to a public trial.
The attorney for petitioner asked the trial judge to consider the option of "allowing [petitioner's] relatives, who [were] present and very much interested in what's going on in the proceeding, to be in the courtroom." The trial judge, without giving any reason for rejecting the request beyond saying there was "clear and convincing proof" of a "manifest necessity" to close the courtroom during Bellamy's testimony, granted the prosecutor's application to exclude all spectators. When Bellamy was called to testify at trial, the prosecutor reviewed the application for closure, petitioner's counsel renewed his objection, and the judge cleared the courtroom of "all spectators."
The Court of Appeals for the Second Circuit has held en banc that under the Sixth Amendment "any closure" of a trial over the objections of the accused must meet the tests formulated in Waller. See Ayala v. Speckard, 131 F.3d 62, 1997 U.S. App. LEXIS 34024, 1997 WL 748022, *6 (2d Cir. 1997). Those tests were not met here.
Petitioner urges that there was no such serious risk to an important interest as to justify any closure. He admits that Bellamy was fearful of the defendant Staley, and rightly so, but he points out that Staley already knew the substance of Bellamy's testimony from the grand jury minutes and in any event would hear what Bellamy said at trial. But the court will assume for purposes of argument that the danger to Bellamy from Staley would be sufficient to justify an order closing the courtroom during Bellamy's testimony at least as to Staley's friends and family.
But the order made by Justice Leahy was "broader than necessary." Waller, 467 U.S. at 48, 104 S. Ct. at 2216.
When asked whose "family members" he feared, Bellamy said it was Staley's family members, and he testified he would be willing to testify if petitioner's family was in the courtroom.
The prosecutor argued that there was no way of determining whether the persons said to be petitioner's family were such. To say the least this was a flimsy argument. Petitioner's attorney represented to the court that petitioner's family members were present in the courtroom and were interested in the proceedings. It would hardly have been an onerous task for court officers or the judge himself to have obtained identification from the relatives defense counsel had represented as being present.
Bellamy had no hesitancy in testifying in the presence of petitioner's family. The prosecutor, "the party seeking to close the hearing", and not petitioner, had the burden of satisfying the four factors set forth in Waller, id. The trial judge was obliged to recognize that open trials are strongly favored and to "require persuasive evidence", not flimsy speculation unsupported by the testimony of the person most concerned, of a serious risk to Bellamy's safety before excluding petitioner's family. Ayala at *7.
The third and fourth factors of Waller were not met. Despite the specific suggestion by petitioner's counsel of a "reasonable alternative" to the prosecutor's proposal of total closure, the court brushed aside the suggestion. The court made no "findings adequate to support of the closure." The court simply stated its conclusion without articulating any rational grounds in support of that conclusion and without even addressing petitioner's suggestion of an alternative or indeed the prosecutor's argument that that alternative should not be adopted.
As long ago as 1948 the Supreme Court held in In re Oliver, 333 U.S. 257, 272, 68 S. Ct. 499, 507, 92 L. Ed. 682 (1948), that "an accused is at the very least entitled to have his friends, relatives, and counsel present, no matter with what offense he may be charged." The Court of Appeals for the Second Circuit, citing In re Oliver, said in Guzman v. Scully, 80 F.3d 772, 775 (2d Cir 1996), that there is "a special concern for assuring [the] attendance of [a] defendant's family members and friends."
In Guzman the court granted the writ and stated that "exclusion of courtroom observers, especially a defendant's family members and friends, even from a part of a criminal trial", is not a step to be taken lightly. Id. at 776. See also Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994) (granting habeas corpus where defendant's parents excluded during testimony of undercover officer). In petitioner's trial Bellamy's testimony was not a minor or insignificant part of the trial. That testimony was the only evidence implicating petitioner in the crime.
The prosecutor argues that if this court were to grant the writ it would improperly adopt retroactively a "new rule" of law in a habeas corpus case contrary to Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), as did the court in Vidal. That argument has no substance. Vidal simply applied the analysis previously enunciated in Waller. This court follows the same course.
The court has considered the prosecutor's other contentions and finds them without merit.
Because the court grants the writ for the reasons stated above it need not reach the merits of petitioner's second claim.
The Petition for a writ of habeas corpus is granted. If the indictment is not moved for retrial within sixty days of the date of this memorandum and order, petitioner shall be released from custody with respect to the charges contained in the indictment.
Dated: Brooklyn, New York
January 9, 1998
Eugene H. Nickerson, U.S.D.J
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