Monday, February 27, 2006

Habeas Granted: State Trial Court Erred in Excluding Defendant's Mother and Brother from Courtroom during Undercover's Testimony

Rodriguez v. Miller, Docket No. 04-6665-pr (2d Cir. Feb. 17, 2006) (Cardamone, McLaughlin, Parker): In this opinion, the Circuit reverses the district court's denial of Rodriguez's § 2254 petition and grants the writ. The Court concluded that the state trial court violated Rodriguez's 6th Amendment right to a public trial when it excluded his mother and brother from the courtroom during the testimony of the state's sole witness -- an undercover cop who claimed to have purchased drugs from Rodriguez in this buy & bust case -- without any specific evidence showing that the relatives posed a danger to the undercover's safety or future effectiveness. Even more: The Court found a 6th Amendment violation even though the trial judge had proposed the alternative of allowing his relatives to remain in the courtroom if they agreed to sit behind a screen that would shield the undercover from their view. Rodriguez rejected this proposal at trial, claiming that the presence of the screen would prejudice him in the eyes of the jury (as it implied his dangerousness).

The essential facts are simple. To support the closure sought by the prosecution, the undercover claimed that he continued to work undercover in the Bushwick area of Brooklyn (where the alleged sale occurred), had several long-term investigations, had several "lost subjects" (i.e., persons from whom he purchased drugs but who have not yet been apprehended), and had been threatened by drug dealers in the past. He claimed that closure of the courtroom was necessary because disclosure of his identity would compromise his safety as well as his future effectiveness as an undercover drug buyer.

The undercover also claimed that he feared the presence of Rodriguez's relatives in the courtroom, since they may retaliate against him or disclose his identity if they saw him working in the neighborhood in the future (the record showed that Rodriguez's mother lived within a few blocks of where the alleged sale occurred, and that his brother lived in a nearby neighborhood). No evidence supported these fears, however. And the undercover admitted that he did not know Rodriguez's relatives and had no particular reason to believe that they would harm him or disclose his identity.

On this record, the Circuit held, the state court acted unreasonably in excluding Rodriguez's family. Principally, the Court pointed to its cases holding that exclusion of the defendant's family is a particularly serious matter that "requires stricter scrutiny than exclusion of the public" and will be upheld only if "the exclusion of that particular relative is necessary to protect the overriding interest at stake." Op. 7 (citing Yung v. Walker, 341 F.3d 104, 111 (2d Cir. 2003)); see also Carson v. Fischer, 421 F.3d 83, 91 (2d Cir. 2005) (same); Guzman v. Scully, 80 F.3d 772, 776 (2d Cir. 1996); Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994). Relying on these cases, the Court held that while the undercover's testimony supported the exclusion of the general public, it was insufficient to justify the exclusion of Rodriguez's family.

As the Court explained, "any alleged threat posed by a family member to an undercover's safety or effectiveness must be established by more than mere speculation. Instead, the trial court must make a particularized inquiry into whether exclusion of the family member was necessary to advance an overriding interest." Op. 13 (emphasis in original). And in this case, "there was no particularized inquiry into whether Rodriguez's family posed any threat to the undercover's safety or effectiveness beyond the conclusory statements of the undercover." Op. 13. "In fact, the trial court made no findings with respect to the mother or brother. . . . And there was no indication that either [family member] was dangerous, knew of [the defendant's] criminal activity, or was familiar with any of his associates." Id. (emphasis in original).

The Court rejected the state's attempt to rely on the fact that Rodriguez's mother and brother lived near the location of the alleged sale, concluding that "[m]ere proximity is not enough to establish a threat to the undercover's safety or efficacy." Op. 14. And the Court quickly dismissed the trial court's alternative proposal of a screen, explaining that "our ruling that any type of closure excluding Rodriguez's family was improper here makes it unnecessary to address 'alternatives to closure' under Waller's third prong." Op. 17.

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