Opinion
00 Civ. 3746 (AJP)
October 5, 2000
OPINION AND ORDER
Represented by the Legal Aid Society, Calvin Collins petitions for a writ of habeas corpus, alleging that his right to a public trial was violated when the state trial judge excluded his friends from the closed courtroom while an undercover officer testified at Collins' trial for the sale of nine dollars of crack cocaine. The parties have consented to decision of the petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 7.)
For the reasons set forth below, the Court grants the petition.
FACTS
On May 13, 1995, petitioner Calvin Collins was arrested for the sale of nine dollars of crack cocaine to Undercover Police Officer 21984 of Manhattan North Narcotics as part of a police "buy and bust" operation. (See, e.g., Tr. 347-48, 359, 363-64, 371-74, 403-14; see also Dkt. No. 3: Collins Br. at 1.) Collins was charged with criminal sale of a controlled substance in the third degree. (Dkt. No. 10:9/1/00 Declaration of Assistant Attorney General Maria Filipakis ("Filipakis Aff.") ¶ 4; Collins Br. at 1.)
For a discussion of buy and bust operations, see generally Robin Zeidel, "Closing the Courtroom for Undercover Police Witnesses: New York Must Adopt a Consistent Standard," J. of Law Policy 659, 672-81 (1996).
The Closure Hearing
On May 8, 1996, the prosecution requested a closed courtroom during the undercover officer's testimony. (5/8/96 Hinton Hearing Transcript ("H.") 28.) A Hinton hearing was held so that the trial court could decide whether to close the courtroom during the undercover's trial testimony (H. 30-81). The first matter that arose at the Hinton hearing was whether the undercover officer could merely state his badge number or also had to state his name. (See H. 31.) The officer explained that "I don't really like my name being used on anything" but that he was prepared to reveal his name for purposes of the hearing. (H. 36.) The trial judge ruled that the officer had to reveal his name for the hearing but not at trial. (H. 36.) The undercover then gave his name (id.), but this Court sees no reason to include it in this Opinion and Order.
At the start of the Hinton hearing, the trial judge closed the courtroom "in a limited way" for the hearing, explaining: "If family members of the defendant want to come in I will allow it or attorneys, but people who are spectators or who have pending cases here, drugs or something else, I don't allow them to come in until I hear, maybe [sic — perhaps "make"] a determination pursuant to Hinton." (H. 29.) The obviously correct decision to so close the Hinton hearing was not challenged by Collins in state court nor here.
The undercover officer testified that he had been a police officer for five years, assigned to Manhattan North Narcotics for the past seventeen months. (H. 37-39.) He had been involved in over 300 buy and bust operations in Manhattan. (H. 54-55, 64-65.) He was still active as an undercover police officer working primarily in the 28th and 32nd Precincts. (H. 38-40.) He was involved in twenty to thirty buy and bust operations in those Precincts, ten to fifteen of which were in the vicinity of West 154th Street and Eighth Avenue, the corner where Collins' transaction had occurred. (H. 40-41, 47, 54-55, 64-65.) The undercover testified that he had ongoing investigations and buy and bust operations around 154th Street and Eighth Avenue. (H. 41-42, 47.) He had no indication that anyone in the area knew he was an undercover officer. (H. 56-57.)
When asked whether his effectiveness as an undercover and/or his safety would be jeopardized if his identity were revealed to the public, the undercover answered in the affirmative:
Q. If your identity was revealed to the public, would any of the ongoing investigations, the buy and bust operations that you just discussed, be jeopardized?
A. Yes, they would.
Q. If your identity was revealed to the general public, would your life be jeopardized?
A. It could be, yes.
Q. If your identity were revealed to the general public how would that affect your future usefulness as an undercover police officer?
THE WITNESS: Number one, it would jeopardize my safety. Number two, it would definitely jeopardize my usefulness as an undercover police officer.
THE COURT: In what way?
THE WITNESS: Everybody will know I'm a cop, so it would definitely jeopardize my usefulness as an undercover police officer.
THE COURT: What would happen to you if everybody knew you were a cop in your capacity as an undercover police officer, in your view?
THE WITNESS: If I went inside of a building it would be very dangerous. If they know that I am a cop it might be a little hazardous.
THE COURT: What might happen?
THE WITNESS: A lot of things. If they know that I am a cop and they know that I have a gun they might take a shot at me.
Q. Officer, is part of your job and the main part of your job to buy narcotics from individuals on the street?
A. Yes.
Q. If those individuals knew that you were a police officer, an undercover police officer, would you be less useful in your job?
A. Definitely.
(H. 41-45, emphasis added.)
The undercover officer stated that he had testified in court four times in New York County, during three of which the courtroom was closed. (H. 45, 50.) At the time of the hearing, he had pending cases in the 100 Centre Street courthouse across the street. (H. 47-49.) The undercover officer tried to avoid public places when he made court appearances and when he went to the District Attorney's office. (H. 45.) The day of this hearing, the officer wore plain clothes, drove his own unmarked car, parked in the general area, and used the public elevator to the District Attorney's office. (H. 50-52.) When he entered the courthouse in order to testify, he used the public entrance and pulled the court officer aside to show him his badge, which he kept in his pocket. (H. 52-54.) The undercover stood in the public hallway outside the courtroom for ten to fifteen minutes before the hearing with other officers and the prosecutor, asking the prosecutor if there was a back room in which he could wait. (H. 46, 61-63.)
The undercover had not been threatened by Collins or, so far as he knew, anyone associated with Collins. (H. 56-57, 59-60.) The undercover testified, however, that he had been threatened in the past:
THE WITNESS: People threatened me a few times. People say if you are a cop you and me are going to go at it, blasy, blasy.
THE COURT: What do you mean by that?
THE WITNESS: You know, they say if I find out that you're a cop.
THE COURT: What did you take it for them to mean?
THE WITNESS: I took it as a threat. They may want to fight or whatever. Whatever it is they are going to do. . . . They didn't tell me what they were going to do. If they did I would have done something right then and there, but I took it as a threat because they said if you are a cop, watch out or whatever.
(H. 58-59.)
The thrust of the People's closing argument in favor of courtroom closure concerned the undercover's safety and his effectiveness in ongoing investigations. (H. 67-68.) Collins' counsel argued that the officer's lack of precaution outside the courtroom contradicted his request for a closed courtroom, and that his safety concerns and fears of blowing his cover were not based on any particular fact. (H. 68-70, 72-73.) In concluding his argument, defense counsel asked that at least Collins' family and friends be allowed in the courtroom during the undercover's trial testimony:
MS. STROTH [defense counsel]:. . . . My client definitely should be permitted to have his family here and any close friends of his in the courtroom.
THE COURT: What did you say about his family?
MS. STROTH: His family, his father and big son, can come.
THE COURT: Family members can come.
MS. STROTH: He has friends.
THE COURT: His friends cannot come in.
(H. 73-74.)
The trial judge ruled that the courtroom would be closed during the undercover's trial testimony but that individuals such as other Legal Aid attorneys and Collins' family could be present. (H. 74-80.) The trial court based its closure decision on the following factors:
The undercover had pending cases in that or the courthouse across the street. (H. 75.)
The officer had ongoing investigations in the area of 154th Street and Eighth Avenue where the transaction with and arrest of Collins had occurred. (H. 75.)
The officer in the past had been threatened by those involved in the drug industry that "bad things would happen to him" if he were a police officer, and the court took judicial notice that investigating the drug industry is dangerous. (H. 76.)
The undercover's personal safety concerns constituted an overriding interest and would be prejudiced if the courtroom were not closed. (H. 77.)
Testifying in an open courtroom would compromise the officer's effectiveness as an undercover. (H. 78.)
The courtroom only would be closed during the undercover's testimony. (H. 77.)
The trial judge concluded by repeating that "[f]amily members of the defendant can come in. I think that I am obliged to permit that. . . . I think the possibility of his father and son, nineteen years old, representing a threat to the undercover is outweighed by the importance of the defendant to have his immediate family members here to give him comfort and bear witness to these proceedings." (H. 79-80.) The trial judge did not indicate why he was excluding friends or in any way further discuss that issue.
Trial, Verdict and Sentence
The first prosecution witness at trial was the undercover officer. (Tr. 344-578.) The courtroom was opened before the testimony of the prosecution's second witness, Detective Alvarez, who served as the "ghost" who watched the undercover make the buy from Collins. (Tr. 582-83, 589; see generally Tr. 578-631.) The third witness was the arresting officer, Detective Romero. (Tr. 637-38; see generally Tr. 631-80.) The final prosecution witness was police chemist Eloiza Delaisla, who testified that the substance purchased by the undercover contained cocaine. (Filipakis Aff. Ex. B: Collins 1st Dep't Br. at 12 n. 3, citing Tr. 697-700.)
The trial judge instructed the jury that the undercover would be referred to by his shield number "for security purposes because he's still doing the undercover work." (Tr. 344.)
A "ghost" is an undercover officer with a radio who watches the principal undercover's actions and radios information to the backup officers, for the safety of the principal undercover. (Tr. 585-86.)
The sole defense witness was Collins. (See Filipakis Aff. Ex. B: Collins 1st Dep't Br. at 12-14, 16.)
After deliberating over two days, the jury found Collins guilty of third degree criminal sale of a controlled substance. (Filipakis Aff. ¶ 4 Ex. B: Collins 1st Dep't Br. at 20-21 citing Tr. 1131.)
On June 25, 1996, Collins was sentenced as a second felony offender to four and a half to nine years imprisonment. (Filipakis Aff. ¶¶ 2, 4 Ex. B: Collins 1st Dep't Br. at 21, citing S. 3, 26.) He was released on parole as of February 4, 2000. (State Br. at 1.)
Collins' Direct State Appeal
On direct appeal, Collins' appellate counsel argued, inter alia, that Collins' constitutional right to a public trial was denied when the trial court excluded his friends from the courtroom during the undercover's testimony (Filipakis Aff. Ex. B: Collins 1st Dep't Br. at 40-45), noting that "[w]hile appellant did not provide the names of those friends that he wanted to attend the proceedings, to have done so would have been futile given the court's summary, categorical ruling that all of appellant's friends were to be excluded from the courtroom." (Id. at 45, citations omitted.)
Collins did not challenge the closure of the courtroom to the general public. (See id. at 44: "While the court may have been justified in excluding the general public from the courtroom during the undercover's testimony . . .")
The First Department unanimously affirmed Collins' conviction, stating as follows with respect to Collins' public trial claim:
The court's order closing the courtroom during the undercover officer's testimony to anyone except defendant's family was appropriate, because defendant, while referring to "friends," did not specify any individuals he wished to be present, and thus the court had no occasion to rule on whether they posed a threat to the officer (see, People v. Martinez, 82 N.Y.2d 436, 443, 604 N.Y.S.2d 932, 624 N.E.2d 1027). The record fails to support defendant's claim that the court deprived him of the opportunity to be more specific.
People v. Collins, 254 A.D.2d 154, 154-55, 682 N.Y.S.2d 124, 125-26 (1st Dep't 1998).
By letters dated November 17, 1998 (Filipakis Aff. Ex. D) and December 9, 1998 (Collins Habeas Appendix at A 00142-48), the Legal Aid Society on behalf of Collins sought leave to appeal to the New York Court of Appeals. The leave letter specifically raised (in three single-spaced pages) the issue of the exclusion of Collins' friends. (Collins Habeas Appendix at A 00142-45.) The New York Court of Appeals denied leave to appeal on February 23, 1999. People v. Collins, 93 N.Y.2d 851, 688 N.Y.S.2d 499 (1999).
Collins' Present Federal Habeas Corpus Petition
Represented by the Legal Aid Society, on or about May 5, 2000 Collins timely filed the present habeas petition alleging that he was denied his right to a public trial when the trial judge excluded his friends during the undercover's trial testimony, despite the absence of any showing that his friends posed a threat to the undercover's safety or effectiveness. (Petition ¶ 12(A); see Collins Br. at 12-21.)
ANALYSIS I. APPLICABLE LEGAL STANDARDS A. The AEDPA Review Standard
In enacting the Antiterrorism and Effective Death Penalty Act ("AEDPA") in 1996, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The "contrary to" and "unreasonable application" claims of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Id. at 1523.
As to the "contrary to" clause,
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Id. at 1519-20.
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 1523. However, "[t]he term `unreasonable' is . . . difficult to define." Id. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 1521.
See also, e.g., Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir. 2000) (a state's application of federal law must be reversed when "independent review of the legal question does not merely allow [the reviewing court] ultimately to conclude that the petitioner has the better of two reasonable legal arguments, but rather leaves [the reviewing court] with a `firm conviction' that one answer, the one rejected by the [state] court, was correct and the other, the application of federal law that the [state] court adopted, was erroneous — in other words that clear error occurred."), pet. for cert. filed, No. 00-255, 69 U.S.L.W. 3156 (Aug. 11, 2000); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *13-23 (S.D.N.Y. June 6, 2000) (Peck, M.J.) (state court's denial of defendant's request for new trial based on prosecution's failure to disclose that a third party had put out a hit on victim prior to shooting murder for which defendant had been convicted "involved an unreasonable application of the Supreme Court's decision in Brady v. Maryland and its progeny"), report and recommendation adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Jones v. Stinson, 94 F. Supp.2d 370, 390-93 (E.D.N.Y. 2000) (state court denial of a fair trial claim was "an objectively unreasonable application of the relevant clearly established federal law" where defendant, whose defense to drug sales charges was that he believed vials contained only baking soda, was prevented from testifying about his prior arrests and dismissals for alleged drug sales that turned out to be baking soda).
The Second Circuit recently reviewed other Courts of Appeals' attempt to define "unreasonable application" after Williams. Francis S. v. Stone, 221 F.3d 100, 109-11 (2d Cir. 2000). The Second Circuit concluded:
As an abstract proposition, we can only echo Justice O'Connor's virtually tautological statement that to permit habeas relief under the "unreasonable application" phrase, a state court decision must be not only erroneous but also unreasonable. Some increment of incorrectness beyond error is required. We caution, however, that the increment need not be great; otherwise, habeas relief would be limited to state court decisions "so far off the mark as to suggest judicial incompetence." Matteo [v. Superintendent, SCI Albion], 171 F.3d [877,] at 889 [(3d Cir. 1999) (en banc)]. We do not believe AEDPA restricted federal habeas corpus to that extent.
Francis S. v. Stone, 221 F.3d at 111 (emphasis added). Perhaps, as Justice Stewart said in another context, the best one can say is that the court knows it when it sees it. See Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683 (1984) (Stewart, J., concurring). In any event, here, the trial court and First Department decisions involved an unreasonable application of Supreme Court precedent, for the reasons discussed below.
B. The Right to a Public Trial
The right to a public criminal trial is guaranteed by the Sixth Amendment, which provides: "In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial." U.S. Const. Amend. VI. As the Second Circuit has explained: "The explicit Sixth Amendment right of the accused is complemented by an implicit, `qualified' First Amendment right of the press and the public of access to a criminal trial." Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997) (en banc) (citing Supreme Court cases), cert. denied, 524 U.S. 958, 118 S.Ct. 2380 (1998). The Supreme Court has noted that public trials ensure fairness to the defendant, promote responsibility on the part of the judges and prosecutors, encourage witnesses to come forward, and discourage perjury. Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 2215 (1984).
Accord, e.g., Mason v. Schriver, 14 F. Supp.2d 321, 327 (S.D.N Y 1998) (Preska, D.J. Peck, M.J.); Brown v. Andrews, 94 Civ. 3253, 1995 WL 944480 at *3 (S.D.N.Y. Oct. 19, 1995) (Peck, M.J.), report rec. adopted in part, rejected in part, 1998 WL 293994 (S.D.N.Y. June 5, 1998) (Preska, D.J.), rev'd, 180 F.3d 403 (2d Cir. 1999), (i.e., effectively adopts Report Rec.), opinion vacated, 220 F.3d 634 (2d Cir. 2000); see also, e.g., In re Oliver, 333 U.S. 257, 266-72, 68 S.Ct. 499, 504-07 (1948).
The Supreme Court has held, however, that "the right to an open [criminal] trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller v. Georgia, 467 U.S. at 45, 104 S.Ct. at 2215. In Waller v. Georgia, the Supreme Court established a four-part test to determine when a criminal trial or pretrial hearing may be closed to the public: [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. at 48, 104 S.Ct. at 2216; accord, e.g., Mason v. Schriver, 14 F. Supp.2d at 327-28; Brown v. Andrews. 1995 WL 944480 at *3. As this Court previously has noted, "[t]he New York Court of Appeals has expressly adopted the Waller standard." Mason v. Schriver, 14 F. Supp.2d at 328 n. 5 (citing, inter alia, People v. Martinez, 82 N.Y.2d 436, 442-43, 604 N.Y.S.2d 932, 935-36 (1993)). All four prongs of the Waller test must be satisfied or the closure violates a defendant's Sixth Amendment right to a public trial. E.g., Mason v. Schriver, 14 F. Supp.2d at 328; Brown v. Andrews, 1995 WL 944480 at *3.
Accord, e.g., Mason v. Schriver, 14 F. Supp.2d at 327; Brown v. Andrews, 1995 WL 944480 at *3.
See also, e.g., Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S.Ct. 819, 824 (1984); Soto v. Vacco, No. 99-2577, 208 F.3d 204 (table), 2000 WL 298258 at *2 (2d Cir. March 21, 2000); Bobb v. Senkowski, 196 F.3d 350, 352 (2d Cir. 1999); Glaude v. Artuz, No. 98-2869, 189 F.3d 460 (table), 1999 WL 568033 at *3 (2d Cir. July 20, 1999), cert. denied, 120 S.Ct. 1478 (2000); English v. Artuz, 164 F.3d 105, 108 (2d Cir. 1998); Brown v. Kuhlmann, 142 F.3d 529, 537 (2d Cir. 1998); Graham v. Stinson, No. 97-2469, 164 F.3d 617 (table), 1998 WL 646930 at *2 (2d Cir. April 6, 1998); Vaughn v. Artuz, No. 97-2422, 159 F.3d 1359 (table), 1998 WL 538117 at *2 (2d Cir. March 13, 1998), cert. denied, 525 U.S. 858, 119 S.Ct. 142 (1998); McKnight v. Henderson, No. 96-2122, 141 F.3d 1152 (table), 1998 WL 74844 at *1 (2d Cir. Feb. 19, 1998); Ayala v. Speckard, 131 F.3d at 69; Guzman v. Scully, 80 F.3d 772, 775 (2d Cir. 1996); Vidal v. Williams, 31 F.3d at 68-69 (2d Cir. 1994); Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992).
See also, e.g., People v. Tolentino, 90 N.Y.2d 867, 869, 661 N.Y.S.2d 593, 595 (1997); People v. Nieves, 90 N.Y.2d 426, 429, 660 N.Y.S.2d 858, 860 (1997); People v. Ramos, 90 N.Y.2d 490, 497, 621 N.Y.S.2d 739, 743, cert. denied, 522 U.S. 1002, 118 S.Ct. 574 (1997). "The Second Circuit in Ayala II commented, however, that the `Supreme Court's observation that courtrooms should be closed to the public only rarely casts an interesting light on what appears to be a relatively common practice in New York courts.'" Mason v. Schriver, 14 F. Supp.2d at 328 n. 5 (quoting Ayala v. Speckard, 102 F.3d 649, 650 n. 1 (2d Cir. 1996), vacated, 131 F.3d 62 (2d Cir. 1997) (en banc)); see also, e.g., Robin Zeidel, "Closing the Courtroom for Undercover Police Witnesses: New York Must Adopt a Consistent Standard," J. of Law Policy 659, 668-70, 693-98 (1996).
The Supreme Court has specifically recognized the defendant's right to have family and friends present at trial. See In re Oliver, 333 U.S. at 271-72 n. 29, 68 S.Ct. at 507 n. 29 ("[W]ithout exception all courts have held 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.") (citing cases). As the Second Circuit has explained: "The exclusion of courtroom observers, especially a defendant's family members and friends, even from part of a criminal trial, is not a step to be taken lightly. In fact, the Supreme Court has specifically noted a special concern for assuring the attendance of family members of the accused." English v. Artuz, 164 F.3d at 108 (citation internal quotations omitted); accord, e.g., Guzman v. Scully, 80 F.3d at 776; Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994), cert. denied, 513 U.S. 1102, 115 S.Ct. 778 (1995); Glaude v. Artuz, No. 96 CV 2759, 1998 WL 760331 at *6 (E.D.N.Y. Aug. 21, 1998), aff'd, No. 98-2869, 189 F.3d 460 (table), 1999 WL 568033 (2d Cir. July 20, 1999), cert. denied, 120 S.Ct. 1428 (2000); Cosentino v. Kelly, 926 F. Supp. 391, 394 (S.D.N.Y.), aff'd, 102 F.3d 71 (2d Cir. 1996), cert. denied, 520 U.S. 1229, 117 S.Ct. 1821 (1997); see also, e.g., State v. Sams, 802 S.W.2d 635, 638 (Tenn.Crim.App. 1990) ("[C]ourts have universally recognized that the right of an accused to have his family and friends present is an integral element of [the] right to a public trial."); People v. Nieves, 90 N.Y.2d at 430, 660 N.Y.S.2d at 861; People v. Gutierez, 86 N.Y.2d 817, 818, 633 N.Y.S.2d 470, 470 (1995).
II. THE STATE COURT'S SUMMARY AND CATEGORICAL EXCLUSION OF COLLINS' FRIENDS FROM THE COURTROOM DURING THE UNDERCOVER OFFICER'S TESTIMONY VIOLATED COLLINS' RIGHT TO A PUBLIC TRIAL AND WAS AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED SUPREME COURT PRECEDENTAt the Hinton hearing, the undercover officer testified that: he was still active around 154th Street and Eighth Avenue where Collins had been arrested, he had pending cases from that area, he had been threatened in the past, and if his identity were publicly revealed, his safety and effectiveness would be compromised. (See pages 3-6 above.) The undercover officer admitted, however, that he had not been threatened by Collins or, so far as the undercover knew, anyone associated with Collins. (H. 56-57, 59-60.) The trial court allowed Collins' family to attend, on the ground that any threat they might pose to the undercover was outweighed by the importance of Collins having his family "to give him comfort and bear witness to these proceedings." (H. 79-80; see also H. 73-74.) But when defense counsel asked about Collins' friends, the trial judge summarily rejected the request (H. 74: "His friends cannot come in."), without inquiring as to the friends' identity or explaining the reasoning behind the ruling. (See H. 73-74, 79-80.) The First Department affirmed on the ground that the defense, "while referring to `friends,' did not specify any individuals [Collins] wished to be present." People v. Collins, 254 A.D.2d 154, 154-55, 682 N.Y.S.2d 124, 125-26 (1st Dep't 1998), appeal denied, 93 N.Y.2d 851, 588 N.Y.S.2d 499 (1999).
The trial court's decision and the First Department's affirmance represent an "unreasonable application" of clearly established federal law as determined by the Supreme Court in Waller v. Georgia, 467 U.S. 39, 48, 109 S.Ct. 2210, 2216 (1984).
Collins has not challenged, either below or on this habeas petition, the trial court's decision to close the trial to the general public during the undercover's testimony. (See, e.g., Filipakis Aff. Ex. B: Collins 1st Dep't Br. at 44: "While the court may have been justified in excluding the general public from the courtroom during the undercover's testimony . . ."; see generally Collins Br. at 12-21.) Because the undercover officer was still active around 154th Street and Eighth Avenue where Collins was arrested, "[t]he state interest in maintaining the continued effectiveness of an undercover officer is an extremely substantial interest, and the trial judge . . . was amply justified in concluding that this interest would be seriously prejudiced by requiring the officer to testify in an open courtroom." Ayala v. Speckard, 131 F.3d 62, 72 (2d Cir. 1997) (en banc), cert. denied, 524 U.S. 958, 118 S.Ct. 2380 (1998). Thus, Waller's first prong was satisfied, at least as to the general public.
The second Waller factor, that the closure be no broader than necessary, is satisfied as to the exclusion of the general public, since the closure was limited to the undercover's testimony, not the entire trial. See, e.g., Brown v. Kuhlmann, 142 F.3d 529, 536 (2d Cir. 1998); Jones v. Stinson, 94 F. Supp.2d 370, 395 (E.D.N.Y. 2000). The issue of whether closure was broader than necessary because Collins' friends were excluded is best addressed via Waller's third factor.
Waller's third factor requires a court to consider reasonable alternatives to closure. Absent Collins' request that his friends be present during the undercover officer's trial testimony, the trial court would have had no obligation to consider this alternative. As the en banc Second Circuit clarified in Ayala v. Speckard:
Whether or not a sua sponte obligation exists to consider alternatives to complete closure, we see nothing in the First Amendment cases or in Waller to indicate that once a trial judge has determined that limited closure [i.e., closure only during the undercover's trial testimony] is warranted as an alternative to complete closure, the judge must sua sponte consider further alternatives to the alternative deemed appropriate. At that point, it becomes the obligation of the party objecting to the trial court's proposal to urge consideration of any further alternatives. . . . Of course, if some further alternative is suggested by the defendant or the prosecution, the trial judge should give it consideration.
Ayala v. Speckard, 131 F.3d at 71-72; accord, e.g., Graham v. Stinson, No. 97-2469, 164 F.3d 617 (table), 1998 WL 646930 at *4 (2d Cir. April 6, 1998); Brown v. Kuhlmann, 142 F.3d 529, 538 (2d Cir. 1998); Campbell v. Sabourin, 37 F. Supp.2d 601, 602 (E.D.N.Y. 1999); Brown v. Andrews, 94 Civ. 3253, 1995 WL 944480 at *6-7 (S.D.N.Y. Oct. 19, 1995) (Peck, M.J.), report rec. adopted in part, rejected in part, 94 Civ. 2353, 1998 WL 293994 (S.D.N.Y. June 5, 1998) (Preska, D.J.), rev'd, 180 F.3d 403 (2d Cir. 1999) (i.e., effectively adopts Report Rec.), opinion vacated, 220 F.3d 634 (2d Cir. 2000).
At Collins' trial, defense counsel did "urge consideration of . . . further alternatives" — defense counsel proposed that Collins' family and close friends should be allowed to remain in the otherwise-closed courtroom. (H. 73-74.) Having been alerted to Collins' desire to have his friends in the courtroom, Waller imposed on the trial judge a duty to determine whether exclusion of Collins' friends was warranted. See, e.g., English v. Artuz, 164 F.3d 105, 109 (2d Cir. 1998) (habeas granted where trial court failed to adequately consider defendant's request that his family members be permitted to remain when courtroom was closed); Ayala v. Speckard, 131 F.3d at 71-72 ("We note that none of the defendants requested that family members be permitted to remain in the courtroom, a request that would have required careful consideration by the trial judge."); Guzman v. Scully, 80 F.3d 772, 774-76 (2d Cir. 1996) (habeas granted because, inter alia, the "third requirement of considering alternatives to closure was not even attempted to be met" before the trial court excluded four women who were defendant's family or friends).
The trial court here failed to consider Collins' request to allow his friends to attend. Instead, the court — in the absence of any allegation, much less any showing, by the prosecution that Collins' friends were likely to jeopardize the state's interests — categorically and summarily ruled that "[h]is friends cannot come in." (H. 74.) The trial court's exclusion of Collins' friends violated his right to a public trial guaranteed by the Sixth Amendment and the Supreme Court's Waller decision. See, e.g., English v. Artuz, 164 F.3d at 109 (habeas granted where there was no showing that the presence of defendant's family members would have jeopardized the safety of the state's witness); Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994) (habeas granted; although exclusion of general public was warranted, exclusion of defendant's parents not justified where there was no evidence they were inclined to harm undercover officer), cert. denied, 513 U.S. 1102, 115 S.Ct. 778 (1995).
See also, e.g., People v. Taylor, 612 N.E.2d 543, 548-49 (Ill.App.Ct. 1993) (trial court erred in excluding family members from voir dire to avoid possibility that their comments or actions would influence jurors where record was devoid of evidence that there was reasonable likelihood that family members would attempt to influence jurors); Walker v. State, 723 A.2d 922, 935 (Md.Ct.Spec.App. 1999) (Waller's third prong violated where "notwithstanding the defense attorney's persistent and well-stated requests to allow the family to attend the trial, there is no indication that the court gave any thought to less restrictive options"); People v. Nieves, 90 N.Y.2d 426, 431, 660 N.Y.S.2d 858, 861 (1997) ("Where . . . the trial court is aware that the defendant's relatives have been attending the proceedings or that the defendant would like to have certain family members present, exclusion of those individuals must be necessary to protect the interest advanced by the People in support of closure"; defendant's right to public trial violated where court excluded defendant's wife and children "without adducing any facts as to the ability of the children to preserve the witness' identity"); People v. Gutierez, 86 N.Y.2d 817, 818, 633 N.Y.S.2d 470, 470 (1995) (trial court erred in excluding family members where there was no showing that undercover's fear for his safety extended to defendant's family members); People v. Kan, 78 N.Y.2d 54, 58, 571 N.Y.S.2d 436, 439 (1991) (trial court erred in excluding family members during accomplice's testimony where accomplice had specifically testified that he did not fear defendant's family, there was no evidence that defendant's family had attempted to intimidate or harass the accomplice or that the accomplice was unable to testify in the presence of defendant's family); People v. Garcia, 271 A.D.2d 81, 710 N.Y.S.2d 345, 348 (1st Dep't 2000) ("The prosecution's reliance on a general record to justify complete closure logically does not apply when defendant does specify individuals, especially family members, to whom closure should not apply. The People must specifically demonstrate that, by excluding family, the closure order is not broader than necessary. . . . Moreover, when the exclusion applies to an identified family member, the trial court's reasons must be `demonstrated and documented' in the record . . . by specific findings adequate to permit appellate review of the order."); People v. Bass, 259 A.D.2d 419, 420, 687 N.Y.S.2d 148, 148 (1st Dep't 1999) (where defense counsel let it be known that defendant's common-law wife wished to attend proceedings, error to exclude her from courtroom during undercover's testimony absent showing that she posed threat to officer's safety); compare, e.g., Brown v. Kuhlmann, 142 F.3d at 538 (petitioner "did not ask that his family be permitted to stay; [petitioner] therefore cannot argue that their exclusion renders the closure overbroad."); Brown v. Andrews, 1995 WL 944480 at *7 (third Waller prong not satisfied where petitioner "did not notify the trial court that she wanted her father to be present at trial and exempt from the closure order.").
The First Department's holding — that Collins' right to a public trial was not violated because he did not specify which friends he wanted to attend, People v. Collins, 254 A.D.2d at 154-55, 682 N.Y.S.2d at 125-26 — also is an objectively unreasonable application of Waller's third prong (as further explicated by the Second Circuit in the cases cited above). The Second Circuit en banc held in Ayala that the trial court is not obligated to sua sponte consider alternatives to closure during an undercover's testimony, but further instructed that "[o]f course, if some further alternative is suggested by the defendant . . ., the trial judge should give it consideration." Ayala v. Speckard, 131 F.3d at 71-72. The trial court here, however, gave no consideration to Collins' request to allow friends to attend; rather, it immediately and unequivocally said "no." The trial court could have, and should have, elicited the names of Collins' friends and any facts necessary to determine whether they threatened the state's interests, instead of foreclosing exploration of the issue by summarily ruling that "[h]is friends cannot come in." (H. 74.) To paraphrase the Second Circuit, "[w]e reject the [First Department's] attempt to substitute its hindsight conjecture for [trial court] analysis that would have led the state trial judge to consider more carefully whether to allow [Collins' friends] to [come] in the courtroom." English v. Artuz, 164 F.3d at 109. The First Department's decision was unreasonable.
As Collins points out, the unreasonableness of the First Department's decision is further underscored by its reliance on People v. Martinez, 82 N.Y.2d 436, 604 N.Y.S.2d 1027 (1993). (See Collins Br. at 20.) In Martinez, the New York Court of Appeals in discussing Waller's third prong and rejecting defendant's contention that the court in closing the courtroom during the undercover officer's testimony should have asked the defendant to name family members or others who could have been admitted, emphasized that "[d]efendant's sole objection and the entire argument before the trial court was concentrated on the sufficiency of the People's showing for closure." People v. Martinez, 82 N.Y.2d at 443, 604 N.Y.S.2d at 936. Here, in contrast, Collins told the trial court that he had friends he wanted to attend. (See H. 73-74.) Indeed, the Martinez court noted that "[s]uch measures as stationing a guard at the door [and/or] taking names . . . might well be investigated in future cases, but on the record the trial court did not err in failing to consider them." Id. at 444, 606 N.Y.S.2d at 936-37. Since Collins here requested that his friends be allowed to attend, the trial court was required to inquire further and investigate measures such as "taking names." See also, e.g., English v. Artuz, 164 F.3d at 109 ("the state's contention that no one would be able to tell which people were [petitioner's] family members and which were [the dangerous co-defendant's] cohorts is disingenuous.").
This leads directly to Waller's fourth factor, that the trial court make findings adequate to support the closure. Here, the trial judge made findings adequate to support the closure as to the general public and adequate to explain his decision to allow Collins' family members to attend. (H. 73-80.) But the only thing the trial judge said about Collins' friends is that "[h]is friends cannot come in." (H. 74.) The trial judge made no findings to support that ruling, in clear violation of Waller's fourth prong. See, e.g., English v. Artuz, 164 F.3d at 109-10 ("the trial judge failed to use the colloquy to arrive at meaningful findings adequate to justify the exclusion of [petitioner's] family"); Guzman v. Scully, 80 F.3d at 776 ("The trial court's conclusory justification for excluding the four women [petitioner's family and friends] failed to satisfy the fourth [Waller] requirement. . . ."); Mason v. Schriver, 14 F. Supp.2d at 324-25; Brown v. Andrews, 1995 WL 944480 at *8; State v. Ortiz, 981 P.2d 1127, 1138-39 (Haw. 1999) (trial court erred in excluding family members from courtroom where it articulated only broad and general finding not based on specific facts); People v. Garcia, 710 N.Y.S.2d at 348 ("[W]hen the exclusion applies to an identified family member, the trial court's reasons must be `demonstrated and documented' in the record . . . by specific findings adequate to prevent appellate review of the order."); People v. Kan, 78 N.Y.2d at 59, 571 N.Y.S.2d at 439 (error to exclude defendant's family where "[t]he trial court did not specify or justify closure with respect to defendant's family on the record").
In short, the trial court's and First Department's rulings were an unreasonable application of the Supreme Court's Waller test, particularly Waller's third and fourth prongs.
The government's brief did not argue that the First Department's decision rested on an independent and adequate state ground, and this Court declines to raise the issue sua sponte. Indeed, the Attorney General's particularly thin brief in this case may be indicative of that Office's apparent discomfort with vigorously defending some trial court decisions in this area. See, e.g., Brown v. Andrews, 220 F.3d 634, 634 (2d Cir. 2000) (remanding with instructions to grant petition where at en banc argument, "the Attorney General of the State of New York, representing the interests of the State in opposition to the petition, took the position that the hearing evidence did not comport with governing standards for closure").
Even if the Court were to consider the issue, this case is distinguishable from Garcia v. Lewis, 188 F.3d 71 (2d Cir. 1999), another buy and bust case, in which the Second Circuit determined that the Appellate Division's decision — holding unpreserved defendant's claim that his mother's companion was unjustifiably excluded from the courtroom-rested on an independent and adequate state ground. In Garcia, after a hearing, the trial court ruled that the courtroom would be closed to the general public during the undercover officer's testimony but that defendant's "close relatives" could be present. The next day, defense counsel asked whether that ruling would extend to defendant's mother's companion. The trial court replied that if he was not a relative, then the ruling would not extend to him, to which defense counsel responded "Okay." See Garcia v. Lewis, 188 F.3d at 74-75. The Second Department — citing People v. Burton, 194 A.D.2d 683, 599 N.Y.S.2d 108 (2d Dep't 1993), which in turn cited CPL § 470.05(2), New York's contemporaneous objection rule — held that Garcia's claim with respect to his mother's companion's exclusion from the courtroom was unpreserved for appellate review. People v. Garcia, 239 A.D.2d 599, 600, 658 N.Y.S.2d 365, 366 (2d Dep't 1997). In denying habeas relief, the Second Circuit stated as follows:
[Garcia's] request — made a day after the Hinton hearing, after opening statements were complete and immediately before the Undercover was to testify — failed to put the trial judge on notice as to what the defendant now claims he wanted: a ruling on the merits of the companion's eligibility to stay. . . .
Garcia now argues that his mother's companion was entitled to stay even though he was "technically" just a friend, unless the state offered a specific reason why he personally should be excluded. [While t]here is support for this position . . ., the trial court had no reason to believe that Garcia was advancing this argument . . . [since] counsel merely inquired whether the court's prior ruling — one that Garcia did not contest — should be construed as extending to Garcia's mother's companion.
Garcia v. Lewis, 188 F.3d at 80-81.
Here, by contrast, there can be no doubt that Collins sought a ruling permitting his friends to be present for the undercover's testimony: defense counsel made her initial request as part of her closing argument at the Hinton hearing before the trial court had issued its decision and made her second request immediately following the court's ruling that "[f]amily members can come." (See page 6 above.) In addition, in contrast to the Appellate Division's decision in Garcia which cited a case that specifically relied on New York's contemporaneous objection rule, the First Department's decision here cited only to People v. Martinez, 82 N.Y.2d 436, 604 N.Y.S.2d 932 (1993), which primarily relied on Waller. Accordingly, because the First Department's decision "fairly appear[s] to rest primarily on federal law or to be interwoven with federal law," this Court must presume there was no independent and adequate state ground for the state court's decision. E.g., Coleman v. Thompson, 501 U.S. 722, 734-35, 111 S.Ct. 2546, 2557 (1991); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 584275 at *5 (S.D.N.Y. May 25, 2000) (Peck, M.J.) ("in order to preclude federal habeas review, the last state court to render judgment must clearly and expressly state that its judgment rest[ed] on a state procedural bar") (citing cases). Moreover, extending Garcia's holding beyond the particular facts of that case is problematic. The Supreme Court in Waller established a four-part test to determine the constitutionality of courtroom closures. The third prong of that test requires the trial court to consider alternatives, if raised by the defendant. Either Waller's third prong is satisfied as a matter of federal constitutional law when defense counsel asks permission for friends (or family) to attend without specifying their names, or it requires more specificity. If the former is correct, and I obviously believe it is, state "contemporaneous objections" rules cannot be used to frustrate federal constitutional standards. If Waller does not require friends to be specifically named, state rules cannot require that friends be named.
CONCLUSION
For the reasons set forth above, the Court grants Collins' habeas petition. Collins is to be released from parole unless the State retries him within 30 days. The Clerk of Court shall mark this action closed.SO ORDERED.