Ayala v. Speckard, 1304

• Citation: 102 F.3d 649
• Decision Date: 11 December 1996
• Docket Number: No. 1304,D,1304
• Parties: 25 Media L. Rep. 1202 Steven AYALA, Petitioner-Appellant, v. Hubert SPECKARD, Superintendent of Groveland Correctional Facility, Respondent-Appellee. ocket 95-2463. . Petition for Rehearing
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 649

102 F.3d 649

25 Media L. Rep. 1202

Steven AYALA, Petitioner-Appellant, v. Hubert SPECKARD, Superintendent of Groveland Correctional

Facility, Respondent-Appellee.

No. 1304, Docket 95-2463.

United States Court of Appeals, Second Circuit.

Petition for Rehearing Submitted July 29, 1996.

Decided Dec. 11, 1996.

Karl E. Pflanz, Richard M. Greenberg, Office of Appellate Defender, New York City, for Steven Ayala.

Billie J. Manning, Howard B. Sterinbach, Joseph N. Ferdenzi, Jennifer A. Daskevich, Dist. Atty's Office, Bronx, NY, for Hubert Speckard.

Before: CARDAMONE, ALTIMARI and PARKER, Circuit Judges.

PER CURIAM.

I. BACKGROUND

In our initial opinion in this case, 89 F.3d 91 (with which we assume familiarity), we reversed the district court's denial of Ayala's petition for a writ of habeas corpus and remanded for issuance of the writ. We reasoned that under the standards established in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ("Press-Enterprise I"), and Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) ("Press-Enterprise II"), Ayala was deprived of his Sixth Amendment "right to a ... public trial" (made applicable to the states by the Fourteenth Amendment, In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507-08, 92 L.Ed. 682 (1948)) when the state trial court closed the courtroom for the testimony of Detective Dotson, the undercover police officer to whom Ayala sold crack cocaine.

The State has petitioned us to rehear the case. The New York State District Attorneys Association has filed an amicus brief also urging us to rethink our initial opinion. Both the State and the District Attorneys argue that our initial opinion improperly created and applied retroactively a new rule of constitutional criminal procedure in violation of Penry v. Lynaugh, 492 U.S. 302, 313-14, 109 S.Ct. 2934, 2943-44, 106 L.Ed.2d 256 (1989) (adopting the plurality's opinion in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). We ordered responsive briefing from Ayala's counsel, the Office of the Appellate Defender, addressing whether our opinion improperly applied a new rule of constitutional law.

Having considered the arguments contained in these briefs, we grant the petition for rehearing and address herein the issues. As explained further below, we remain convinced that our initial opinion was correctly decided.

II. DISCUSSION

There are two sources of the presumption that criminal court proceedings are open to the public. The First Amendment implicitly vests the public with a right of access to the courthouse, see Press-Enterprise II, 478 U.S. at 7, 106 S.Ct. at 2739-40, and the Sixth Amendment explicitly guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a ... public trial." U.S. Const. amend. VI. The Sixth Amendment's public trial guarantee is at least as strong as the First Amendment's. Waller, 467 U.S. at 46, 104 S.Ct. at 2215 ("there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public."). Furthermore, whether the right stems from the First or Sixth Amendment, the "public-trial guarantee [is] for the benefit of the defendant." Id. Lastly, while some State interests may justify courtroom closure, "[s]uch circumstances will be rare, however, and the balance of interests must be struck with special care." ¹ Id. at 45, 104 S.Ct. at 2215.

As we explained in our initial opinion, there are four things that must occur before a courtroom can be closed without violating the Sixth Amendment:

(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) it must make findings adequate to support the closure.

Waller, 467 U.S. at 48, 104 S.Ct. at 2216 (numbering added) (applying the First Amendment standard enunciated in Press-Enterprise I to the Sixth Amendment context). In our initial opinion, we held Ayala's courtroom closure to be unconstitutional for two alternative reasons. First, we concluded the prosecution failed to satisfy the first Waller element (showing sufficient probability of prejudice to a sufficiently serious interest). Second, we ruled that the state court's failure to consider alternatives to closure of the proceedings violated the third Waller element. As indicated above, the State now argues that both rationales contravene the nonretroactivity rule of Teague.

A. The State's failure to argue that petitioner sought a new rule of constitutional criminal procedure waives that argument.

The State concedes that it has not argued until now that a ruling favorable to Ayala would create a new and impermissible rule of constitutional criminal procedure. This failure is significant in light of the fact that our initial opinion did not diverge from positions urged by Ayala. Compare 89 F.3d at 95 ("[t]he state may not subjugate Ayala's constitutional protections to the mere possibility that someone with the ability and inclination to injure Dotson will be present in the courtroom during his brief testimony.") with Appellant's Brief at 13 (arguing that "it is not enough for the movant to establish a theoretical possibility of harm; even a 'reasonable likelihood of substantial prejudice' is not sufficient.") (citing Press-Enterprise II, 478 U.S. at 14, 106 S.Ct. at 2743); compare also 89 F.3d at 96 (disagreeing with district court's ruling that trial judges are not obligated to consider alternatives to closure sua sponte ) with Appellant's Brief at 25 ("Waller does not place the onus of suggesting alternatives upon the defendant. Instead, 'the trial court must consider reasonable alternatives to closing the proceeding.' ") (citing Waller 467 U.S. at 48, 104 S.Ct. at 2216) (emphasis added by appellant). Thus, the State knew the position urged by Ayala. The State argued that Ayala's interpretation was incorrect. But the State never argued that if we agreed with Ayala, we would be contravening the rule of Teague. ²

The Supreme Court has said

A threshold question in every habeas case, therefore, is whether the court is obligated to apply the Teague rule to defendant's claim. We have recognized that the nonretroactivity principle is not 'jurisdictional' in the sense that federal courts must raise and decide the issue sua sponte. Thus, a federal court may, but need not, decline to apply Teague if the State does not argue it.

Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994) (citations, quotation marks, emphasis, and ellipsis omitted). As discussed below, we conclude that our initial opinion broke no new constitutional ground. But the State concedes, as it must, that it has never raised the Teague issue until now. The Teague question is thus waived. Ciak v. United States, 59 F.3d 296, 302 (2d Cir.1995).

B. Even if the Government did not waive the Teague argument, the initial opinion does not break new constitutional ground.

"A case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994) (brackets omitted) (citing Teague ). The reason for this rule is bottomed on the purpose of federal collateral review: "to create an incentive for state courts to conduct their proceedings in a manner consistent with established constitutional standards." Wright v. West, 505 U.S. 277, 311, 112 S.Ct. 2482, 2500, 120 L.Ed.2d 225 (1992) (Souter, J., concurring) (citations and internal quotation marks omitted). Everyone agrees in this action that Waller and both Press-Enterprise cases were "existing precedent" during the relevant state court proceedings. As discussed below, we see the original opinion in this case as a straightforward application of the constitutional standards enunciated in those cases.

1. Substantial Probability of Prejudice to an Overriding Interest.

In our initial opinion, we restated the rule that before a request to close a courtroom can overcome the constitutional presumption of a public trial, the party seeking to close the courtroom must show a "substantial probability" that an "overriding interest" will be prejudiced. 89 F.3d at 95. Applying that rule to the case before us, we recognized that the safety of law enforcement personnel constitutes an "overriding interest." Id. We ruled, however, that the state failed to show a "substantial probability" that Detective Dotson's safety would be prejudiced by testifying in open court. Id. It bears emphasizing that we in no way directed that undercover agents identify themselves in each and every trial; we merely directed that the trial court find after sufficient argument or hearing that there was a "substantial probability" that by testifying in open court the undercover agent's safety would be endangered, or that such a substantial probability reasonably can be inferred from facts put forward by the state. Id. at 96.

The State continues to argue that Detective Dotson's safety would have been exposed to a substantial probability of prejudice if the courtroom had not been closed. While we continue to disagree with the State's argument, the District Attorneys in their amicus brief proffer another interest which they claim is overriding and was subject to an undue probability of prejudice--the interest in maintaining the effectiveness of a law enforcement agent acting in an undercover capacity.

As indicated in our original opinion, the work of undercover law enforcement personnel is often invaluable and thanklessly dangerous. Accordingly, we...