The opinion of the court was delivered by: Trager, District Judge.
Following a jury trial in New York Supreme Court, County of Queens,
petitioner was convicted of criminal sale of a controlled substance in the
third degree. On May 9, 1994, the Appellate Division, Second Department,
unanimously affirmed petitioner's judgment of conviction. People v.
Campbell, 204 A.D.2d 474, 614 N.Y.S.2d 170 (2d Dept. 1994). On June 29,
1994, the Court of Appeals denied leave to appeal. People v. Campbell,
83 N.Y.2d 965, 616 N.Y.S.2d 17, 639 N.E.2d 757 (1994).
Petitioner filed this application for a writ of habeas corpus on April
10, 1997, claiming he was deprived of his right to a public trial by the
trial court's closure of the courtroom during the testimony of an
undercover police officer. Petitioner's claim is without merit.
In support of his petition, petitioner's counsel cites Ayala v.
Speckard, 131 F.3d 62 (2d Cir. 1997) (en banc), cert. denied, ___ U.S.
___, 118 S.Ct. 2380, 141 L.Ed.2d 747 (1998). The Assistant District
Attorney also cites Speckard, but relies upon Vaughn v. Artuz, 1998 WL
538117 (2d Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 142, 142
L.Ed.2d 116 (1998), a case which, while it appears to support her
proposition, should not have been cited by the Assistant because it is a
Although the state court's record was, in my view, sufficient, I
determined to supplement the record to clarify any ambiguity in the
undercover officer's testimony. A habeas court has discretion to further
develop the record to clarify ambiguities in the trial transcript. See
Tankleff v. Senkowski, 135 F.3d 235, 250 (2d Cir. 1998) (holding that
habeas court has discretion to develop record further to determine
whether a Batson objection was properly rejected). As a result of this
additional inquiry, the undercover officer indicated to the Assistant
District Attorney that she had, in fact, returned to the "same geographic
area from which she had purchased drugs from petitioner." Byrne Aff.,
¶ 5; Hinds Aff., pp. 1-2. While this statement does not define the
term "same geographic area," I take it to encompass at least the same
location referred to at the courtroom closure hearing, (see R. 11), an
area later determined to encompass a twomile stretch of Jamaica, Queens,
an area with a large amount of drug trafficking, and an area that the New
York Appellate Division for the Second Department concluded was "near the
courthouse." People v. Campbell, 204 A.D.2d 474, 614 N.Y.S.2d 170 (2d
Dept. 1994). While this might encompass a fairly large geographic area,
it certainly was not unreasonable for the state court judge to find that
the risk to the officer's safety was a "serious" one, and there was,
therefore, an overriding interest in the closure of the courtroom. Waller
v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); Ayala v.
Speckard, 131 F.3d at 70.
Furthermore, even if, with the benefit of hindsight, I were to conclude
that the risk to the officer's safety was remote and, therefore, her fear
was unreasonable, I should still reach the same conclusion. Cf Woods v.
Kuhlmann, 977 F.2d 74, 77 -78 (2d Cir. 1992) (despite the lack of
specific findings of fact by the trial court, the "information gleaned"
from the record was "sufficient to support the partial, temporary closure
of petitioner's trial"). In my view, the state has an interest in the
psychological well-being and the morale of police officers who are being
asked to put their lives on the line for public safety in undercover
operations. This concern ought to be candidly acknowledged and appreciated
by courts. Accordingly, if there is any reasonable possibility that an
officer's work would take him or her back to the same area, a prima facie
case for an "overriding interest" in excluding the public during the
undercover officer's testimony should be deemed to have been
established. The burden should then shift to the defendant to indicate
why in that particular case-as distinguished from the general interest in
having open courts -there is a need for participation by the public in
that trial. Consideration can then be given to alternative means of
balancing the particular interests involved. The balancing, however,
would be made not in terms of an abstract clash of rights, but rather in
terms of the concrete concerns of the particular case.*fn1
It has been suggested that such particularized balancing should take
into account the possibility that a courtroom audience will be comprised
of members of the community who know the parties and have firsthand
knowledge of the facts at issue. The fear of being contradicted by such
members of the courtroom audience, at one time, was thought to create an
incentive for witnesses to be truthful. This notion, however, born in the
"'earlier days of England, when attendance at court was a common mode of
passing the time for all classes of persons,'" like feudalism, no longer
has any relevance in contemporary society. See Brown v. Kuhlmann, 142
F.3d at 535 (quoting 6 Wigmore, Evidence § 1834 at 435-36 (Chadbourne
rev. 1976) (emphasis in original)). The idea that a community member will
happen to be spectating in open court on the day that a witness is
testifying about matters within the spectator's firsthand knowledge is
not a realistic one, nor one that a testifying witness would be likely to
consider in shaping his or her testimony. See id.
A more realistic, though still remote, example, is the following: A
defendant wants to make a showing that an officer was not even present
when the officer allegedly bought drugs from the defendant. During his or
her pretrial investigation, defendant's counsel learns of persons from
the neighborhood who were in the area at the time the sale was alleged to
have occurred. In that instance, these identifiable potential witnesses
to the alleged sale should be permitted, in court, to view the undercover
officer so that these persons could confirm, before testifying, whether
or not the officer was present. In this example, there is a genuine need
for opening the courtroom-at least for that limited purpose. of course,
defense counsel would be required to have a good faith
basis to question that the officer testifying was not actually present at
the time and place of the alleged sale.
In addition, in performing a balancing test, it should not be forgotten
that in these cases there is a jury present who in some real sense
represents the public in this process. This also goes a long way toward
assuring that the values protected by the right to a public trial are
preserved. Indeed, the presence of a jury is "an effective restraint on
possible abuse of judicial power," In re Oliver, 333 U.S. 257, 270, 68
S.Ct. 499, 506, 92 L.Ed. 682 (1948), and has the added salutary effect of
discouraging perjury. See Waller v. Georgia, 467 U.S. at 46, 104 S.Ct. at
2214. Where a jury is present and the transcript of the undercover
officer's testimony is available for the public and press to read, the
closure is, indeed, limited, and the specter of the "secret trial" is not
invoked. See Ayala, 131 F.3d at 72. Cf People v. Jones, 47 N.Y.2d 409,
413, 418 N.Y.S.2d 359, 362, 391 N.E.2d 1335 (1979) ("the concept of a
secret trial is anathema to the social and political philosophy which
motivates our society. . . ."). Indeed, as the Second Circuit noted in
Brown v. Kuhlmann:
unlike In re Oliver, which involved a summary criminal
contempt trial held in secret before a "one-man grand
jury," or Waller v. Georgia, 467 U.S. 39, 104 S.Ct.
2210, 81 L.Ed.2d 31 (1984), where a hearing on the
admissibility of evidence was closed to the public,
petitioner's trial was never completely closed to the
public because he was tried before a jury composed of
 representatives of the community . . . who may have
outnumbered the handful of spectators in the courtroom
. . . the closure here was partial not only because it
involved a few minutes of trial testimony, the
transcript of which was available to the public, but
also because it did not wholly exclude representatives
of the community.
Finally, here, the trial judge, upon determining that limited closure
was warranted as an alternative to complete closure of the courtroom, had
no independent obligation to consider sua sponte further alternatives to
the one deemed appropriate. See Ayala v. Speckard, 131 F.3d 62 (2d Cir.
1997) (en banc). Once the court made a determination to exclude the
public during consideration of the officer's testimony, "it [became] the
obligation of the party objecting to the trial court's proposal to urge
consideration of any further alternatives that might avoid the need for
even a limited closure." Id. (citing ...