62, 69 (2d Cir. 1997) (en banc)
(requiring "persuasive evidence of serious risk to an important interest"
in order to justify partial closure of a courtroom), cert. denied,
524 U.S. 958, 118 S.Ct. 2380, 141 L.Ed.2d 747 (1998).
Other than the single threat nine months earlier from a person not
related to Yung and who was on trial during Yung's trial, the undercover
officer in Yung's case testified only to a generalized fear that his
identity would be disclosed, and his safety thereby compromised, if the
courtroom were not closed during his trial testimony. In addition, he
testified that he had pending cases in the same Lower East Side
neighborhood where Yung had been arrested and planned to continue working
there in an undercover capacity.
In Ayala, a case in which the general public was excluded from trial,
the Second Circuit held that "[t]here is no requirement that the
prosecution must prove that particular individuals likely to attend the
trial will disclose the officer's identity." 131 F.3d at 72. Thus, the
showing made in Yung's case might have been sufficient if only the
general public were to have been excluded. See Bowden, 237 F.3d at 130
("A narrow courtroom closure . . . passes muster under Waller's first
prong when an undercover officer articulates even a generalized fear that
his safety could be endangered by testifying in open court and explains
in rough terms the basis of his fear"); Bobb v. Senkowski, 196 F.3d 350,
354 (2d Cir. 1999) (holding that where officer's testimony was not
crucial to prosecution and family members did not seek to attend, "[i]t
was sufficient for the state court to have before it testimony that the
officer continued to work as an undercover officer . . ., that there were
several `lost subjects' still at large from his recent investigations,
and that he feared for his safety if he were to testify in public.").
However, a heightened nexus between the officer's testimony and
likelihood of prejudice to the officer's undercover status or safety must
exist where, as here, the defendant has requested that his family members
be permitted to remain. In Vidal, the primary Second Circuit case
regarding the exclusion of a defendant's family members from a state
court trial during an undercover officer's testimony, the officer
testified that he was planning to return to the same neighborhood to
conduct other undercover operations, that other undercover officers had
been threatened, and that he feared for his safety should he testify in
an open courtroom. The Second Circuit looked to two specific factors in
deciding whether a sufficient nexus had been shown: (1) the likelihood
that the family members would have encountered the officer during an
undercover operation, and (2) whether there was any evidence that the
family members "were inclined to harm a police officer." 31 F.3d at 69.
Finding that neither factor was met, the Court granted habeas despite the
officer's legitimate but generalized concerns. Id.; see also English, 164
F.3d at 109 (rejecting prosecutor's "generalized comments" as
insufficient to show overriding interest in closing courtroom to
defendant's family during witness's testimony).
In Woods, in contrast, the Second Circuit affirmed the district court's
denial of habeas relief for a defendant whose three family members had
been excluded during one witness's testimony, in light of specific
evidence that at least one of the excluded individuals had threatened the
witness not to testify, and the witness was "scared to death." 977 F.2d
The facts of Yung's case are more similar to Vidal than Woods. As in
Vidal, there was no evidence that Yung's family members lived on the
Lower East side or were likely to encounter the officer during an
undercover operation. In fact, no evidence was introduced regarding where
Yung's mother, sister-in-law, and common-law wife lived. Moreover, as in
Vidal, no evidence was introduced suggesting that any of Yung's family
members "were inclined to harm a police officer." Although the officer in
Yung may have had a more particularized reason to fear for his safety if
his identity were revealed as a result of testifying than the officer in
Vidal, because he had received threats in the past, the trial court did
not require a sufficiently narrow nexus between the fear and the
individual family members who were ejected from the trial.
This is not to say that an "actual threat" is necessary in order to
justify closing the proceedings to a defendant's family members during an
undercover's testimony, as the petitioner suggests. See, e.g., Woods, 977
F.2d at 77 (holding that closure is warranted for the protection of a
witness who is frightened as a result of "perceived threats" from
defendant's family member). Such a standard would be nearly impossible to
meet as an evidentiary matter, and is unnecessarily stringent.
Rather, the appropriate standard should follow that employed by the
Vidal court. In short, where, as here, a prosecutor neither demonstrates
the likelihood that a defendant's family members will cross paths with an
officer during an undercover operation, nor provides any articulable
indication that family members "were inclined to harm a police officer,"
closure is not warranted. See Vidal, 31 F.3d at 69.
Therefore, Yung's Sixth Amendment right to a public trial was
violated, and his petition for habeas corpus shall be granted.
C. Waller 3: Consideration of Alternatives
A trial court proposing to close the trial only during the testimony of
a single witness need not sua sponte raise other alternative measures to
effectuate the interests in closure. See Bowden, 237 F.3d at 131 ("Once
he has ordered a narrow closure, a trial judge simply has no
responsibility to assess other alternatives sua sponte.") (emphasis in
original); Ayala, 131 F.3d at 64, 71 (same). As partial closure is itself
an alternative to broad closure, and the parties did not raise
alternatives such as raising a screen between the gallery and witness
stand, the trial court satisfied Waller's third factor.
D. Waller 4: Adequate Findings to Support Closure
Finally, although the Court did make specific findings after hearing
testimony, more evidence was necessary regarding the family's likely
interaction with the
undercover officer. As set forth above, the trial
court should not have closed the proceedings to Yung's family members in
order to protect the officer's identity and safety absent a showing that
the family members were likely to cross paths with the officer during an
undercover operation, or that they were inclined to harm him. No evidence
was presented that was probative of these crucial questions. As such, the
trial court's findings constituted an "unreasonable determination of the
facts in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d)(2).
In sum, the trial court was not justified in ordering the courtroom to
be closed to Yung's family during the undercover officer's testimony. The
petition for habeas corpus is granted, and the case is hereby remanded
with instructions to release Yung unless he is retried within a
reasonable time. See, e.g., Okonkwo, 104 F.3d at 25 (holding that
remanding to district court for release or retrial is preferable remedy
to remand for new closure hearing).
It is so ordered.