Bowden v. Keane and Spitzer, Docket No. 00-2126

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-2126
• Citation: 237 F.3d 125
• Parties: (2nd Cir. 2001) VERNON BOWDEN, Petitioner-Appellant, v. JOHN KEANE, Superintendent, Woodbourne Correctional Facility, and ELIOT SPITZER, Attorney General of New York, Respondents-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 125

237 F.3d 125 (2nd Cir. 2001)

VERNON BOWDEN, Petitioner-Appellant, v. JOHN KEANE, Superintendent, Woodbourne Correctional Facility, and ELIOT SPITZER, Attorney General of New York, Respondents-Appellees.

Docket No. 00-2126

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: September 12, 2000

Decided: January 05, 2001

Appeal from a judgment of the United States District Court for the Southern District of New York (John E. Sprizzo, Judge) denying appellant Vernon Bowden's petition for a writ of habeas corpus on the ground that closure of the courtroom during Bowden's trial did not violate his rights under the Sixth Amendment to the United States Constitution. Under the framework established in Waller v. Georgia, 467 U.S. 39 (1984), a criminal trial may be closed to the public only if "[1] the party seeking to close the hearing . . .advance[s] an overriding interest that is likely to be prejudiced, [2] the closure ...[is] no broader than necessary to protect that interest, [3] the trial court .. . consider[s] reasonable alternatives to closing the proceeding, and [4] [the trial court] make[s] findings adequate to support the closure." Id. at 48. We hold that each of these four prongs was satisfied here, and that the courtroom closure ordered by the trial judge was therefore constitutionally permissible.

Affirmed.

[Copyrighted Material Omitted] JUDITH PREBLE, The Legal Aid Society, New York, NY, for Petitioner-Appellant.

Melanie L. Oxhorn, Assistant Solicitor General of the State of New York (Eliot Spitzer, Attorney General of the State of New York, Preeta D. Bansal, Solicitor General of the State of New York, Edward D. Johnson, Deputy Solicitor General, of counsel), for Respondents-Appellees.

Before: FEINBERG, CABRANES, and PARKER, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

We review a judgment of the United States District Court for the Southern District of New York (John E. Sprizzo, Judge) denying appellant Vernon Bowden's petition for a writ of habeas corpus on the ground that closure of the courtroom during Bowden's trial did not violate his rights under the Sixth Amendment to the United States Constitution. Under the framework established in Waller v. Georgia, 467 U.S. 39 (1984), a criminal trial may be closed to the public only if "[1] the party seeking to close the hearing . . .advance[s] an overriding interest that is likely to be prejudiced, [2] the closure ...[is] no broader than necessary to protect that interest, [3] the trial court .. . consider[s] reasonable alternatives to closing the proceeding, and [4] [the trial court] make[s] findings adequate to support the closure." Id. at 48. We hold that each of these four prongs was satisfied here, and that the courtroom closure ordered by the trial judge was therefore constitutionally permissible. Accordingly, we affirm the judgment of the District Court.

I.

The District Court summarized the facts that give rise to this appeal:

Petitioner [Bowden]'s conviction arose out of a "buy and bust" transaction in which he sold three vials of crack cocaine to Detective Billingy ("Billingy"), an undercover police officer. According to Billingy's testimony, which he gave in open court, Billingy observed petitioner on July 2, 1993 outside of a building near 126th Street in Manhattan. As Billingy approached the building, petitioner "hissed" at him and gestured for him to wait. Billingy testified further that petitioner then led him into the building and asked what he wanted. Billingy told petitioner that he wanted "three" and gave petitioner twelve dollars in pre recorded buy money. Billingy then testified that petitioner walked up several steps, lifted a doormat, and removed three vials of crack cocaine from a bag under the mat. He then descended the stairs and gave the vials to Billingy.

Detective Weathers ("Weathers"), another undercover officer, subsequently testified in closed court that he followed Billingy from a half block behind during the operation, acting as his "ghost." He testified further that from a distance of approximately 100 to 150 feet, he observed petitioner leave and enter the building with Billingy, and that thereafter, he transmitted a detailed description of petitioner to the arrest team. He subsequently joined Billingy in an undercover car, where, according to both Billingy and Weathers' testimony, they radioed in a description of petitioner and did a drive by identification while petitioner was detained. ...

On January 13, 1994, the trial court [Supreme Court, New York County] held a .. . hearing on the government's motion to close the courtroom during Detective Weathers' testimony. During the hearing, Weathers testified that he was assigned to the North Manhattan Narcotics District, where he was participating in several ongoing narcotics investigations. He also indicated that he had been threatened by drug dealers who suspected that he was a police officer, stating: "I've already been threatened by alleged drug dealers for being a cop. I'm supposed to be killed or whatnot [sic], mutilated, strangulated [sic]." Moreover, Weathers testified that he had approximately twenty five to thirty "lost subjects," or suspects from whom he had bought drugs but whom had not been arrested. Defense counsel briefly cross examined Weathers, and after summation by the prosecution, objected to the closure and rested on the record.

The trial judge granted the prosecution's motion to close the courtroom, stating: "I believe the record now does substantiate closure of the courtroom, and I am not going to summarize it. I think it speaks for itself, not the least factor of which is the way information circulates throughout this system[.] [It] is perfectly conceivable to me that word will get out if I did not close the courtroom that an undercover officer would be testifying and that he will be identified, and it isn't necessary for people to be sitting in the courtroom."

Bowden v. Keane, 85 F. Supp. 2d 246, 248-49 (S.D.N.Y. 2000) (footnotes and internal citations omitted).

Weathers then testified behind closed doors with the jury present, the jury returned a verdict convicting Bowden of criminal sale of a controlled substance in violation of New York Penal Law §220.39[1], and the trial judge sentenced Bowden to a prison term of 9-18 years. On direct appeal, Bowden's conviction was affirmed, see People v. Bowden, 234 A.D.2d 127, 651 N.Y.S.2d 453 (1st Dep't 1996), and leave to appeal was denied, see People v. Bowden, 90 N.Y.2d 891, 662 N.Y.S.2d 434 (1997).

Bowden, who is still incarcerated pursuant to the sentence imposed on him by the state trial judge, then filed a petition in the District Court for a writ of habeas corpus under 28 U.S.C. §2254. Bowden claimed, as he does now, that his Sixth Amendment right to a public trial was violated by the closure of the courtroom during Weathers's testimony. The District Court denied the petition, entered judgment accordingly, and granted Bowden a certificate of appealability. This timely appeal followed.

II.

The Sixth Amendment to the United States Constitution guarantees a criminal defendant a "public" trial. U.S. CONST. amend. VI; see also Duncan v Louisiana, 391 U.S. 145, 148 & n.10 (1968) (holding that the Sixth Amendment right to a public criminal trial applies to the states by virtue of the Fourteenth Amendment). In conjunction with the First Amendment, the Sixth Amendment public trial guarantee confers on criminal defendants the right to be tried in a courtroom whose doors are open to any members of the public inclined to observe the trial. See Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997) (en banc) (noting that "[t]he explicit Sixth Amendment right of the accused is complemented by an implicit, 'qualified' First Amendment right of the ... public of access to a criminal trial."); see generally Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (describing the "presumption of [courtroom] openness").

However, this right to be tried in open court is not absolute. See United States v. Doe, 63 F.3d 121, 126-27 (2d Cir. 1995). It is not trammeled, for example, by a trivial, inadvertent courtroom closure, see Peterson v. Williams, 85 F.3d 39 (2d Cir. 1996), and in certain circumstances a court may order its doors closed for a non-trivial period-and over a defendant's objection-without violating the Constitution. As noted above, as to intentional, non-trivial courtroom closures, the Supreme Court held in Waller v. Georgia, 467 U.S. 39 (1984), that a criminal trial may be closed to the public only if "[1] the party seeking to close the hearing ...advance[s] an overriding interest that is likely to be prejudiced, [2] the closure ...[is] no broader than necessary to protect that interest, [3] the trial court . . .consider[s] reasonable alternatives to closing the proceeding, and [4] [the trial court] ...make[s] findings adequate to support the closure." Waller, 467 U.S. at 48. In this case, Bowden argues that the District Court erred in its analysis of each of the four prongs of the Waller test.

A.

Under the first prong of the Waller test, we have held that a trial judge confronted with a request for a courtroom closure should "require persuasive evidence of serious risk to an important interest in ordering any closure, and .. . realize that the more extensive is the closure requested, the greater must be the gravity of the required interest and the likelihood of risk to that interest." Ayala, 131 F.3d at 70. In other words, criminal trials may not be closed unless the "serious risk to an important interest" threshold has been crossed; once this threshold has been crossed, a courtroom closure is permissible so long as there is a positive and proportional relationship between (1) the extent of the closure, and (2) the "gravity" of the interest that assertedly justifies the closure, discounted by the probability of the interest being harmed...