trial court was required to make a thirdstep ruling, the only
reasonable reading of the record reveals that it did so. Simply
put, the Second Department's conclusion "lacks any foundation in
precedent or in fact." Id. at 679 n. 7.
In any event, the Appellate Division's decision, and the
State's argument, simply ignore the teachings of Hernandez and
Aikens and thus are contrary to, and based on unreasonable
applications of, clearly established federal law. Where, as
here, a party's race-neutral explanation for its actions is
rejected and results in a finding of purposeful discrimination,
the court may not disregard that finding and revert back to
stage one of the Batson/Aikens analysis. In this case, whether
the trial court's initial rejection of the challenge to Ms.
Brooks is characterized as "final" or "preliminary," the fact
remains that the trial judge obviously disbelieved the
prosecutor's purported justification for the strike, and that
factual finding, based on credibility and demeanor, is "presumed
to be correct." 28 U.S.C. § 2254(e)(1). Though the judge did not
expressly state that the prosecutor had acted with
discriminatory intent, that finding was implicit in his
announcement that he would not sustain the peremptory challenge
to Ms. Brooks: "The third-stage analysis . . . compels courts to
determine the credibility of the proffered explanations."
Barnes, 202 F.3d at 156 (internal quotation marks and citation
omitted).*fn17 Having made that determination, the trial
judge should not then have focused on Durant's initial burden of
proof, as that issue had dropped from the case. In allowing the
peremptory challenge to stand, after having found it to be
tainted by purposeful discrimination, the trial court
effectively endorsed that discrimination and unreasonably
deviated from the Supreme Court's decisions in Hernandez and
the Title VII precedents on which it was based.
For the foregoing reasons, this Court recommends that the writ
be issued on this ground.
Public Trial Claim
Durant additionally claims that his Sixth Amendment right to a
public trial was violated when the trial court ordered the
courtroom closed during the testimony of the two undercover
police officers. Durant contends that the trial court erred in
failing to consider and implement a reasonable and less
restrictive alternative that was proposed by defense counsel, to
wit, having a court officer screen individuals as they entered
the courtroom. In response, the State argues that not only did
the trial court consider and reject the defense's proposed
alternative, but the court implemented its own alternative to
complete closure — closing the courtroom only during the
testimony of the two officers and releasing the transcript of
the officer's testimony.
The Sixth Amendment guarantees the right to a public trial for
the accused in a criminal proceeding. Waller v. Georgia,
467 U.S. 39, 43-44, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); see also
Duncan v. Louisiana, 391 U.S. 145, 148 & n. 10, 88 S.Ct. 1444,
20 L.Ed.2d 491 (1968) (right to public trial applies to the
states via the Fourteenth Amendment). This Sixth Amendment right
co-exists with the First Amendment right of the press and the
public, and the standard to justify courtroom closure is the
same under either
constitutional theory. Waller, 467 U.S. at 46-47, 104 S.Ct.
2210. In Waller, the Supreme Court outlined a four-part test
for courtroom closure:
(1) the party seeking to close the hearing must
advance an overriding interest that is likely to
(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) it must make findings adequate to support the
See id. at 48, 104 S.Ct. 2210 (citing Press-Enterprise Co. v.
Superior Court, 464 U.S. 501, 511-12, 104 S.Ct. 819, 78 L.Ed.2d
629 (1984)); Williams v. Artuz, 237 F.3d 147, 152 (2d Cir.
Durant's challenge concerns the second, third and fourth
prongs of the Waller test.*fn18 Durant contends that the
trial court erred both in failing to consider and adopt the less
restrictive alternative proposed by defense counsel and in
neglecting its responsibility to "make findings adequate to
support the closure." Memorandum of Law In Support of Petition
for a Writ of Habeas Corpus at 43.
With respect to the second prong, this case bears no
resemblance to the facts in Waller, where the trial court
closed an entire seven-day suppression hearing in order to
prevent publication of 2 1/2 hours of wiretap evidence. Here, in
contrast, the courtroom closure was partial: the trial court
closed the courtroom during the testimony of only two witnesses,
and the transcript of their testimony was publically available.
See Campbell v. Sabourin, 37 F. Supp.2d 601, 604 (E.D.N.Y.
1999) (presence of jury and public availability of transcript
attenuates "the specter of the `secret trial'" that motivated
ratification of the Public Trial Clause). Thus, the closure here
was no broader than necessary to protect the state's interest in
the safety of the undercover officers. See Jones v. Stinson,
94 F. Supp.2d 370, 395 (E.D.N.Y.) (holding that closure was
narrowly tailored where courtroom was closed only during
testimony of two undercover officers and transcript was not
sealed), rev'd on other grounds, 229 F.3d 112 (2d Cir. 2000).
Regarding the third prong (concerning the efficacy of lesser
alternatives), the trial court had already considered and
adopted an alternative to complete courtroom closure — limited
closure, during the testimony of the undercover officers only.
See Ayala v. Speckard, 131 F.3d 62, 71-72 (2d Cir. 1997) (en
banc) (characterizing partial closure as alternative to complete
closure); Jones v. Stinson, 94 F. Supp.2d at 395 ("[T]he trial
court considered, and ordered, a reasonable alternative to
closure, namely, limited closure during the testimony of the two
officers."). Moreover, moments before announcing its decision,
the trial court heard defense counsel's suggestion of a
different alternative — screening of all those admitted into the
courtroom — and the prosecutor's challenge to that proposal. As
the Appellate Division explained, "[a]lthough the trial court
did not explicitly state its reasons for rejecting the
defendant's proposal, it can be implied from the trial court's
findings that it accepted the People's argument that the
proposed alternative would not fully protect the officers'
safety."*fn19 Durant, 250 A.D.2d at 700,
672 N.Y.S.2d at 435 (citations omitted). Contrary to the premise
of Durant's challenge, the United States Supreme Court has never
held that the trial court must "explicitly consider alternatives
on the record." People v. Ramos, 90 N.Y.2d 490, 503,
662 N.Y.S.2d 739, 685 N.E.2d 492 (1997) (approving partial closure).
The trial court's finding that the prosecution had "justif[ied]
closure of the courtroom," see Tr. at 334, after having
"listened to . . . the arguments advanced by both the People and
by defense counsel" (id. at 333), supports the inference that
the court deemed the defense's proposed alternative inadequate
to protect the safety of the police officers. See Ramos, 90
N.Y.2d at 504, 662 N.Y.S.2d 739, 685 N.E.2d 492 (inferring that
trial court, in ordering closure, determined that no lesser
alternative would protect the articulated interest).
As to the fourth prong of the Waller test, the trial court's
ruling, though brief, was nevertheless sufficient to justify the
partial courtroom closure. The Supreme Court's requirement that
the trial court make findings "adequate to support the closure,"
Waller, 467 U.S. at 48, 104 S.Ct. 2210, mandates only that the
findings be specific enough "that a reviewing court can
determine whether the closure order was properly entered."
Press-Enterprise Co., 464 U.S. at 510, 104 S.Ct. 819. Hence,
the Second Circuit does not require explicit findings where, as
here, the record supports partial courtroom closure. See
Woods, 977 F.2d at 77-78 (holding that fourth Waller factor
is satisfied where "information gleaned" from the record is
"sufficient to support the partial, temporary closure of
petitioner's trial."); accord Bowden v. Keane, 237 F.3d 125,
132, 133 (2d Cir. 2001). As the Fourth Circuit observed in Bell
v. Jarvis, 236 F.3d 149 (4th Cir. 2000):
[T]he Waller Court prescribed no particular format
to which a trial judge must adhere to satisfy the
findings requirement, and we read nothing in Waller
that would require a reviewing court to evaluate the
trial judge's closure order solely on the basis of
the explicit factual findings and, thereby, ignore
facts of record which fully support the decision and
belie a claim that [the defendant's] right to a
public trial was actually violated by the closure.
Id. at 172; see United States v. Farmer, 32 F.3d 369, 371
(8th Cir. 1994) (specific findings not necessary where record
provides sufficient support for limited closure).
Before ruling on the closure motion, the trial court in this
case held a hearing that included testimony and arguments from
counsel. The judge credited the testimony and concluded that the
risk to the officers' safety constituted a compelling reason for
partial closure. The Appellate Division thereafter reviewed the
record and found it sufficient to support the lower court's
ruling. The decision to order partial closure of the courtroom
was based on a reasonable determination of the facts, and
neither the trial court nor the Appellate Division acted
"contrary to," nor unreasonably applied, clearly established
For the foregoing reasons, it is the recommendation of this
Court that Durant's petition for a writ of habeas corpus be
granted on one of the two grounds advanced by him: i.e., the
State's discriminatory exercise of a peremptory challenge in
Any objections to the recommendations contained in this Report
and Recommendation must be filed with the Honorable Frederic
Block on or before April 16, 2001. Failure to file objections
in a timely manner may waive a right to appeal the District
Court order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a),
6(e), 72; Small v. Secretary of Health and Human Services,
892 F.2d 15, 16 (2d Cir. 1989).
The Clerk is directed to transmit copies of this Report and
Recommendation, by overnight courier, to both counsel of record.
April 3, 2001.