Ip v. Henderson, 88 CIV. 5321 (LBS).
| Decision Date | 01 March 1989 |
| Docket Number | No. 88 CIV. 5321 (LBS).,88 CIV. 5321 (LBS). |
| Citation | 710 F. Supp. 915 |
| Parties | Harry IP, Petitioner, v. Robert HENDERSON, Superintendent Auburn Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents. |
| Court | U.S. District Court — Southern District of New York |
Harry Ip, pro se.
Robert Abrams, Atty. Gen. of State of N.Y., New York City, for respondents; Elaine Stogel, Asst. Atty. Gen., of counsel.
Harry Ip has filed this pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 et seq. Following a jury trial in New York County, petitioner was convicted on May 6, 1986 of first-degree sale of a controlled substance under N.Y.Penal Law § 220.43 (McKinney 1980). He was sentenced to serve 15 years to life imprisonment and is currently incarcerated at the Auburn Correctional Facility. The Appellate Division, First Department, of the Supreme Court of the State of New York, affirmed his conviction without opinion on February 28, 1988. Petitioner's timely application for a certificate granting leave to appeal to the New York Court of Appeals was denied on April 28, 1988. Petitioner requests a writ of habeas corpus on the ground that his sixth amendment right to a public trial was violated and that certain evidence was improperly admitted. Having raised these issues in his state court proceedings, petitioner has exhausted available state remedies.
Petitioner alleges that his sixth amendment right to a public trial was violated when the trial judge closed the courtroom during the testimony of a government witness. The judge closed the courtroom to all spectators during the testimony of three witnesses. Petitioner does not challenge the judge's ruling concerning two of these witnesses, both of whom were undercover police officers engaged in ongoing investigations. He does contend, however, that the judge erred in closing the courtroom during the testimony of the third witness, who was an accomplice to the defendant's crime and who, after pleading guilty, entered into an arrangement with the government whereby he would testify at the defendant's trial and provide the government with information about other criminal activity in exchange for a sentencing concession.
During petitioner's trial, the judge held a hearing pursuant to People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972), cert. denied sub nom. Hinton v. New York, 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273 (1973), to determine whether the courtroom should be closed. The only evidence presented by the government in support of its motion was the testimony of the witness who said that he felt his life was in danger and that he did not want to "show his face in public." Trial Tr. at 665. He testified that he feared for his safety not during trial, but during his time in prison and upon his release from prison. Id. at 669. In response to questions from both defense and government counsel, he indicated that if he were required to testify with an audience he might be so nervous that he would be unable to testify truthfully. Id. at 675.
The hearing centered on these fears and the judge's inability to assure the witness that no harm would come to him once he left the courtroom. The judge ruled that:
If the courtroom can be closed to protect embarrassment of a witness it certainly can be closed to protect a witness who feels his life is in danger. It does no good to cite to a witness instances of other brave people who come forward and give testimony without being overly concerned that their life is in danger. He thinks his life is in danger and it does not do him any good to tell him that other people in his position have done so without harm. The literature and I suppose every prisoner in the State of New York and in every state in the country knows that very little protection can be accorded to the prisoner from harm that may come to them from other prisoners. All kinds of heinous crimes have been perpetrated on prisoners under the eyes of the whole Department of Correction. Rapes, all kinds of crimes. The literature is full of instances of prisoners being at the mercy of other prisoners and about which the corrections officers have been able to do very little and in many instances the only escape was that the prisoner took his own life by hanging himself. The literature is filled with that too. I am not going to assure the prisoner who feels that by cooperating with the Police Department in this case and in ongoing cases that no harm is going to come to him and at the risk of his life to open the courtroom to the public. I think in weighing the prejudice that might be done to these two defendants to close the courtroom only temporarily for a limited period of time while this witness testifies is far outweighed by the harm that might come to this witness if the courtroom were open....
Defense counsel vigorously contested this ruling, citing defendant's sixth amendment right to a public trial, pointing out that the judge's reasoning would apply to all witnesses, and adding that other possible protective measures had not been considered or taken.
A criminal defendant has a fundamental right to a public trial under the sixth amendment. In re Oliver, 333 U.S. 257, 266, 68 S.Ct. 499, 504, 92 L.Ed. 682 (1948). This right assures the public that the defendant is dealt with fairly, protects against prosecutorial and judicial misconduct, and most importantly to this case, encourages witnesses to come forward and discourages perjury. Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). In Waller, the Supreme Court addressed the extent of this right and said that although "the right to an open trial may give way in certain cases to other rights or interests, ... such circumstances will be rare ... and the balance of interests must be struck with special care." 467 U.S. at 45, 104 S.Ct. at 2215.
Under the test articulated in Waller, a party seeking to close the courtroom must "advance an overriding interest that is likely to be prejudiced," and the closure may be "no broader than necessary to protect that interest." Id. at 48, 104 S.Ct. at 2216 (). The trial court must "consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." Id.
At petitioner's trial, the government sought to close the courtroom during testimony of one of its key witnesses because the witness feared retaliation for his cooperation. In some instances, the safety of a witness will certainly be an overriding interest, especially in cases involving undercover agents, informants, or witnesses whose lives have been threatened. See, e.g., United States v. De Los Santos, 810 F.2d 1326, 1334 (5th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 490, 98 L.Ed.2d 488 (1987). The facts of each case, however, must be evaluated individually and a determination regarding closure must be made on a case-by-case basis. In considering the interest, the court may not enact a per se rule in favor of closing the courtroom in certain instances, rather, the trial judge must look to the particular circumstances of each case. Jones v. Henderson, 683 F.Supp. 917, 923 (E.D.N.Y.1988) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609, 102 S.Ct. 2613, 2621-22, 73 L.Ed.2d 248 (1982)).
During the hearing, no facts or circumstances were presented by the prosecution to distinguish this case from any other case in which a co-defendant enters into a plea bargain. The prosecution made no showing of any danger whatsoever towards the witness. The only evidence presented was the witness's own testimony that he feared that his life was in danger and that he did not "want to show his face in public." Trial Tr. at 665. The witness had received no threats or injury although he was in the general population at Riker's Island and other defendants knew his name, had numerous contacts with him, and appeared publicly with him in other related court proceedings. Id. at 664-66, 670, 684.
The judge based his ruling solely on the ground that the witness feared for his life and that neither the judge nor the prison system could make any guarantees for his safety. He felt, however, that he could do a "little thing" to protect him by closing the court. Trial Tr. at 693. The judge believed that in order for the court to remain open he had to assure the witness of his safety. Because a judge can never guarantee a witness's safety inside or outside the courtroom, this rationale would require closing the courtroom at the request of any witness and in effect would result in a per se rule. Defense counsel objected on this ground several times and at one point the following colloquy took place:
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