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MASON v. SCHRIVER

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


July 7, 1998

GRANVILLE MASON, Petitioner, against SUNNY SCHRIVER, Superintendent, Wallkill Correctional Facility, Respondent.

The opinion of the court was delivered by: PRESKA

ORDER

 LORETTA A. PRESKA, U.S.D.J.

 Granville Mason petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, based upon the closure of the courtroom during his trial for the testimony of the undercover officers responsible for his arrest. On March 11, 1997, the Honorable Andrew J. Peck, United States Magistrate Judge, issued a report and recommendation (the "Report") recommending that the petition be granted. The State objected to the Report on April 11, 1997. Because the Report relied upon decisions which ultimately culminated in the Court of Appeals' en banc decision in Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997), pet. for cert. filed, No. 97-8962 (March 3, 1998), I reserved decision on the petition pending the Court of Appeals' resolution of that case.

 I have reviewed the Report de novo pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1)(C). For the reasons discussed below I adopt the Report in part and grant Mr. Mason's petition for a writ of habeas corpus.

 DISCUSSION

 Mason was arrested in 1992 for selling three vials of crack cocaine to undercover Detective Carey Billingly, in a drug sale that was observed by undercover Police Office Linda Eaton-Lewis. Before trial, the People moved to close the courtroom for the testimony of the two undercover officers, and the court conducted a Hinton hearing to determine whether closure was justified. Because the Hinton proceedings lie at the center of this case, the Report's summary of that portion of the case are set forth below:

 

Detective Billingly entered the courthouse for the Hinton Hearing through the judges' entrance and waited to testify in a non-public area. (H. 17-18.) *fn1" Detective Billingly testified at the Hinton hearing that during his three years as an undercover detective, he participated in 450-500 narcotics purchases, confined to the Manhattan North Region, i.e., from 59th Street to the northern end of Manhattan. (H. 13, 16.) Detective Billingly testified that he remained involved in long[-]term narcotics operations and that, because some subjects had not yet been arrested, he planned to continue purchasing narcotics in those cases. (H. 14). Detective Billingly testified that there were "lost subjects" from his undercover buys -- that is, suspects who were not arrested. (H. 15.) According to Detective Billingly, testifying in an open courtroom would "hinder [his] job, and [his] life would be in danger. (H. 15.) Billingly had previously been threatened with "bodily harm and death," and in 1990, he had been forced to inhale drugs. (H. 15.) Detective Billingly's identity as an undercover officer is not public knowledge, and he "would not feel comfortable" testifying in an open courtroom. (H. 16.)

 

Police Officer Linda Eaton-Lewis testified at the Hinton hearing that during her six months as an undercover officer, she participated in at least 200 narcotics purchases in New York County. (H. 19). Like Detective Billingly, Officer Eaton-Lewis testified that her identity as an undercover officer was not public knowledge, she had been verbally threatened in the part, and she would be unable to testify in a non-inhibited manner if the courtroom were open during her testimony. (H. 20-21). She felt that testifying in an open courtroom would jeopardize her safety "because the defendants can have people come into the courtroom and find out who" she is, and she "fear[s] for [her] safety." (H. 20-21.)

 

At the conclusion of the very brief Hinton hearing -- the combined testimony of Detective Billingly and Officer Eaton-Lewis took only ten pages (H. 13-22) -- defense counsel objected to closure of the courtroom. (H. 24.) Defense counsel pointed out that all of the undercovers' buys occur above 59th Street (H. 24), and, of course, the courthouse was well below 59th Street.

 Report at 3-5. For their part, the People argued that closure was appropriate and cited four cases which allegedly supported their position. The trial court then granted the People's motion to close the courtroom, stating only:

 

The application is granted as to each witness, and the courtroom will be closed during their testimony.

 

I find the People have met their burden of showing that closure is justified in this case and the cases cited by [the Assistant District Attorney], in my view, are good authority.

 (H. 24-25). As explained below, the trial judge's disposition of the People's motion violated Mason's Sixth Amendment right to a public trial, and as a result Mason's writ must be granted.

 DISCUSSION

 In Waller v. Georgia, the Supreme Court established a four-part test to determine when a criminal trial may be closed to the public. Under this test,

 

[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] [the trial court] must make findings adequate to support the closure.

 Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216, 81 L. Ed. 2d 31 (1984); see United States v. King, 140 F.3d 76, 1998 WL 124060, at *5 (2d Cir. March 12, 1998); Ayala, 131 F.3d at 69. In his Report Magistrate Judge Peck applied the Waller test in light of then-controlling Second Circuit law and determined that the third and fourth prongs were not met. Accordingly he found that closure was not justified. Although intervening law dictates a different outcome on the third prong of the test, the fourth-prong analysis is unchanged, and the writ must be granted.

 As to the third prong, at the time Magistrate Judge Peck wrote the Report the controlling law of this Circuit placed a trial judge under an "absolute duty" to consider sua sponte possible alternatives to closure of the courtroom during the undercover's testimony. See Ayala v. Speckard, 89 F.3d 91 (2d Cir.) ("Ayala I "), modified on denial of reh'g, 102 F.3d 649 (2d Cir. 1996) ("Ayala II "). In Ayala III, however, the Court of Appeals, sitting en banc, overturned the panel decision in Ayala II. In so ruling, the Court of Appeals made clear that "a trial judge, having already considered closure during the testimony of one witness as an alternative to complete closure, is not required to consider sua sponte further alternatives to closure but needs to consider only further alternatives suggested by the parties." Ayala III, 131 F.3d at 64.

 Here, the trial judge ordered the courtroom closed for only the testimony of the two undercover officers, not for the entire trial; in so doing, he considered, and ordered, the alternative of partial closure. Magistrate Judge Peck, applying Ayala II, properly concluded that the third Waller prong was not met because the trial judge did not sua sponte consider alternatives beyond partial closure. Ayala III, however, held that the trial judge's failure to consider alternatives beyond partial closure did not run afoul of Waller because the partial closure itself was an alternative to complete closure. Absent other suggestions from the parties, of which there were none, the trial judge had no further obligation to consider alternatives. Thus, in light of the intervening change in law precipitated by Ayala III, petitioner no longer prevails on the third Waller prong, and I must reject so much of the Report as holds to the contrary. *fn2"

 Ayala III did not affect the fourth Waller prong, however, and the trial judge's failure on that prong mandates that Mason's petition be granted. As noted above, under Waller a trial judge "must make findings adequate to support the closure." Waller, 467 U.S. at 48, 104 S. Ct. at 2216. Waller 's findings requirement was derived from a decision the Court had rendered four months earlier in Press-Enterprise Company v. Superior Court of California, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) ("Press Enterprise I "). In Press-Enterprise I the Court examined the First Amendment right of the press and the public of access to a criminal trial and identified the circumstances under which a trial judge may close criminal voir dire proceedings. The Court held that there existed a "presumption of openness" which "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." 464 U.S. at 510, 104 S. Ct. at 824. As such, trial judges must articulate the interest "along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." Id.

 In Waller the Court explicitly applied the Press-Enterprise I standards to a criminal defendant's Sixth Amendment right to a public trial and soon thereafter reaffirmed the importance of the findings requirement in Press-Enterprise Company v. Superior Court of California, 478 U.S. 1, 13-14, 106 S. Ct. 2735, 2743, 92 L. Ed. 2d 1 (1986) ("Press-Enterprise II "). There, after finding that a qualified First Amendment right of access attaches to preliminary hearings in criminal matters, the Court held that "the proceedings cannot be closed unless specific, on the record findings are made demonstrating that 'closure is essential to preserve higher values and is narrowly tailored to serve that interest.'" 478 U.S. at 13-14, 106 S. Ct. at 2743 (quoting Press-Enterprise I) (emphasis added). Courts of this Circuit have recognized the findings requirement, in the context of both the First Amendment, see United States v. King, 140 F.3d 76, 1998 WL 124060, at *6 (noting that the propriety of closure turns, inter alia, on "the extent to which the judge makes supportable findings," and affirming closure of voir dire proceedings where the trial judge "made explicit findings to support the limitations he imposed"), and the Sixth Amendment, see Guzman v. Scully, 80 F.3d 772, 775 (2d Cir. 1996) (finding that defendant's Sixth Amendment right to public trial was violated because, inter alia, trial judge's "conclusory justification" for closing courtroom during witness' testimony failed to satisfy fourth Waller prong); Cosentino v. Kelly, 926 F. Supp. 391, 398 (S.D.N.Y. 1996) (finding after review of the record that trial court made findings adequate to support partial closure of trial).

 In this case the trial judge made no meaningful findings for the record. As set out above, he stated only that:

 

The application is granted as to each witness, and the courtroom will be closed during their testimony.

 

I find the People have met their burden of showing that closure is justified in this case and the cases cited by [the Assistant District Attorney], in my view, are good authority.

 (H. 24-25). The judge's conclusory statement is plainly insufficient under Press-Enterprise I, Waller, and their progeny as it falls far short of the "explicit" and "specific" recorded findings necessary to support closure. As Magistrate Judge Peck properly concluded, "the trial judge's failure to make any findings as to whether issues of the undercover's safety or the State's interest in maintaining the undercover's 'cover' justified closure under Waller 's first prong . . . require[s] granting Mason's habeas petition for failure to satisfy Waller 's fourth prong." Report at 12 (citing Guzman, 80 F.3d at 776).

 Accordingly, I adopt the Report and Recommendation to the extent that it concludes that Waller 's fourth prong was not satisfied. As a result, Mason's petition must be granted.

 CONCLUSION

 For the reasons stated above, the writ of habeas corpus is granted, and the petitioner is to be released from custody if he is not retried within a reasonable time. The Clerk of the Court shall mark this action closed.

 Dated: New York, New York

 July 7, 1998

 Loretta A. Preska, U.S.D.J.


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