Tuesday, May 16, 2006

Another Habeas Win Based on Exclusion of Defendant's Family Members from Courtroom

Smith v. Hollins, Docket No. 03-2250-pr (2d Cir. May 15, 2006) (McLaughlin, Sack, Koeltl (by desig'n)): This decision is but the latest in a long line of Second Circuit cases in which the Circuit has "expressed its strong devotion to the preservation of an individual's right to have family and friends present at his trial" and granted habeas based on the exclusion of the defendant's family members from the courtroom. Op. 13 (citing numerous cases from 1994 (Vidal v. Williams, 31 F.3d 67 (2d Cir. 1994)) to 2006 (Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006) (click here for our discussion of Miller)). It is also further evidence that neither state courts nor state prosecutors pay any attention to the Second Circuit. In this case, in which the state trial occurred in 1997, the judge and the ADA should have known better than to exclude the defendant's brother and sister from the courtroom during the testimony of the state's two essential witnesses (the undercover who did the "buy" in this typical buy-and-bust case, and the "ghost" who shadowed him) based on nothing more than generalized speculation. E.g., Miller, Op. 13 ("[a]ny 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.") (emphasis in original).

Here, the judge allowed Smith's mother, common-law wife, and child to remain in the courtroom but excluded his brother and sister. This distinction was arbitrary and the exclusion of Smith's siblings unjustified: His brother and sister lived in Queens while the underlying offense occurred in Bushwick (Brooklyn) and the undercover and ghost's present and future undercover activities were limited to areas in Brooklyn. Op. 15. Neither witness knew Smith's family, had been threatened by them, or had any reason to believe that they presented a danger to the witnesses' safety or future effectiveness as undercovers.

The Circuit also rejected the district court's alternative holding that any error in violating Smith's Sixth Amendment public-trial right was harmless, re-affirming that the "denial of a public trial is a 'structural' error . . . not subject to harmless error analysis." Op. 16 (quoting Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996)). The Circuit noted that, instead, "when addressing whether an unjustified closure is a Sixth Amendment violation, a 'triviality standard' is the proper benchmark." Op. 16. Those interested in this fascinating distinction will have to consult the opinion at pages 16 to 18 (E.g, "We affirm the conviction not because the Sixth Amendment error was harmless, but because the closure was so trivial as to not implicate the concerns and values of the Sixth Amendment" -- got it?). Suffice it to say that the Circuit held here that the exclusion of Smith's siblings was not a "trivial" violation of the Sixth Amendment, due not least in part to the fact that the undercover and the ghost were the state's two essential witnesses. Op. 17-18.

Rather than simply granting the writ, however, the Circuit remands the case to allow the district court to conduct a last-ditch effort (in the form of a hearing) to save the conviction (i.e., to see whether the evidentiary gap authorizing the siblings' exclusion can be closed). Op. 18 (citing Nieblas v. Smith, 204 F.3d 29 (2d Cir. 1999)). This remedy seems misguided and a waste of time, since the state trial court already conducted a full hearing on the same issue in which both the undercover and ghost testified. And their testimony was thorough and complete, even if insufficient to justify the exclusion of Smith's siblings. One gets the sense that the Court simply doesn't want to grant the writ because of the perceived "windfall," Op. 18, that Smith will receive. Judge Sack, in fact, explicitly states in a short concurrence that "the looming possibility of . . . the windfall of a new trial . . . is . . . a matter of concern" to him. Op. 21. This Blog suggests that maybe the Court should be more concerned about state judges and state prosecutors' ignorance, willful or otherwise, of well-established law.

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