United States v. Fay, 500

• Decision Date: 23 September 1965
• Docket Number: No. 500,Docket 29542.,500
• Parties: UNITED STATES of America ex rel. Philip ORLANDO, Relator-Appellant, v. Edward M. FAY, Warden of Green Haven Prison, Stormville, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

350 F.2d 967 (1965)

UNITED STATES of America ex rel. Philip ORLANDO, Relator-Appellant, v. Edward M. FAY, Warden of Green Haven Prison, Stormville, New York, Respondent-Appellee.

No. 500, Docket 29542.

United States Court of Appeals Second Circuit.

Argued May 26, 1965.

Decided September 23, 1965.

Myron L. Shapiro, New York City (Richard J. Burke and Burke & Shapiro, New York City, on the brief), for relator-appellant.

Joel Lewittes, Asst. Atty. Gen. State of New York (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., and Iris Steel, Deputy Asst. Atty. Gen., on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, and SMITH and KAUFMAN, Circuit Judges.

LUMBARD, Chief Judge:

Philip Orlando attacks, by petition for a writ of habeas corpus filed in the Southern District of New York in October 1963, his 1950 New York State conviction and thirty-to-sixty year sentence for robbery in the first degree, grand larceny first degree and assault second degree. He alleges that he was denied a public trial because the state trial court excluded the public from the courtroom during most of the trial. State remedies having been exhausted,¹ Judge Sugarman held a hearing and denied the application. We agree with his conclusion that there has been no deprivation of Orlando's constitutional rights.

Orlando's trial opened in Kings County Court on October 24, 1950 before Judge Goldstein. On the first full day of trial, October 26th, Orlando interrupted an identification of him by the victim by exclaiming, "You never saw me before," "You liar," and "This man is not supposed to say that, your Honor," and was strongly admonished by the court.

The next day of trial, October 30th, the prosecution disclosed, out of the presence of the jury, that one prosecution witness had been threatened by two members of the electrical union to which Orlando belonged with loss of his job if he testified against Orlando, and that another prosecution witness had avoided what might have been a similar situation by telling the man who accosted her in a suspicious manner that she was someone else. In the absence of the jury, Judge Goldstein admonished all those present, saying:

"Whoever is responsible for this kind of conduct toward the People\'s witnesses, and if I find out who it is, I will hold an investigation on that after this trial is over. I do want to say as a warning, that if there is anybody doing this dirty work and trying to intimidate the witnesses here, they are going to be dealt with according to law; and I again want to issue a warning, that if there is anybody in this court-room, that is interested in this defendant, or in this Electrical Union, that is taking advantage of the fact that they are spectators, and gain information and then use it on the outside to abuse these witnesses, that come here, they will find themselves in a very serious situation. We will go on with the case now."

But Judge Goldstein's troubles had not ended, for later in the afternoon, the record discloses the following:

"Q. You had used the name `Orlando.\' Do you see the man who came into your apartment on March 10, 1950, who was armed with a gun with Lorenzo? Do you see him in Court here? A. Yes, sir.

Q. From your chair will you pick him out? A. Yes, sir, that is him right there.

Q. Where is he? A. Right over there (indicating).

Mr. De Meo: Indicating this defendant.

The Defendant: Do you want me to stand up?

The Court: Will you keep quiet.

The Defendant: Do you want me to stand up?

The Court: Look here, you keep quiet.

The Defendant: The witnesses are all lying, your Honor.

The Court: I will hold you in contempt of court if you continue in this manner. Do you understand that? You are not out on the street. You are in a court-room. At least you ought to show some respect for the court.

A woman admittedly defendant\'s mother, who was a spectator at the trial: May I say something? He is my boy. Listen to what they say.

The Court: I will clear the court-room of all spectators. Do not leave anybody in this court-room after this, except the witnesses when they are needed. Do you understand that?"

About one half hour after Judge Goldstein had excluded the spectators, during the testimony of a co-defendant who was testifying for the prosecution, the defense first moved to readmit the public. Judge Goldstein denied this motion except to the extent of admitting the press and members of the bar.² In ruling that no one else be admitted, the court stated:

"In view of the exhibition that took place this morning among the spectators, who were apparently interested in the defendant, who made the statement `That is not so\' * * * I think I will exclude the audience * * * except the press and the lawyers."

Still later the same day Orlando interrupted the testimony of a prosecution witness by exclaiming "That is a lie," and he was again admonished by Judge Goldstein.³

Judge Sugarman rejected Orlando's contention that the exclusion of the spectators was itself a violation of due process by reason of the Sixth Amendment guarantee of a "public trial." However, he directed a hearing on the claim that the exclusion order had made it impossible for Orlando to secure evidence to support his claim that he was at work at a certain time, contrary to the testimony of one of the state's principal witnesses. After a hearing, the district court ruled that Orlando had failed to sustain his burden of showing that his defense had been improperly hampered by exclusion of the spectators.

In our view, the record amply supports the conclusion that Orlando's right to a public trial was not denied. The trial judge had good reason to believe that many persons in the courtroom were acting so as to interfere with the orderly conduct of the trial. There was good reason for the judge to believe that the defendant's family and friends, including members of his union, at the behest and for the benefit of the defense, were attempting to intimidate and harass witnesses and otherwise to disrupt the proceedings. Under such circumstances the trial judge must exercise his power to exclude those who so act and those who appear to be acting in concert with them lest it be impossible for the trial to proceed and for the jury to pass upon the charges. As we conclude that the defendant was accorded a public trial in any event, we need not examine Orlando's assertion of a Sixth Amendment right and his claim that Gaines v. State of Washington, 277 U.S. 81, 85, 48 S.Ct. 468, 72 L.Ed. 793 (1928), which held that the Sixth Amendment guarantee of a public trial was not directly applicable to state trials, is to be re-examined in the light of recent Supreme Court decisions which incorporate some of the Sixth Amendment rights into the Fourteenth Amendment.⁴

The Sixth Amendment provision that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, * * *" has always been interpreted as being subject to the trial judge's power to keep order in the courtroom. Were this not so a public trial might mean no trial at all at the option of the defendant and his sympathizers. See Davis v. United States, 247 F. 394, 395 (8 Cir. 1917). Thus, the public trial requirement is subject to the trial judge's power to prevent offensive evidence from being exhibited to the public, Lancaster v. United States, 110 U.S.App.D.C. 331, 293 F.2d 519 (1961), to prevent unnecessary pressures or embarrassment to a witness or a victim as in the rape of a young child, Geise v. United States, 262 F.2d 151 (9 Cir. 1958), or to prevent young persons from attending a trial of a scandalous nature, United States v. Kobi, 172 F.2d 919, 924 (3 Cir. 1949). And where, as in Orlando's trial, there is reason to believe that unrestricted admission of the defendant's sympathizers to the courtroom has made it possible for such sympathizers to see the witnesses and then threaten and intimidate them, and there is reason to believe that this might continue unless such persons are not permitted to see the witnesses, the trial judge has the power to bar access to the courtroom to such persons.

Judge Goldstein's order to bar the public, except for members of the press and the bar, was not an unreasonable method of meeting the emergency situation which confronted him when it became apparent that both in and out of the courtroom the defendant and his sympathizers were attempting to prevent the orderly presentation of the case. Since the order still permitted access to the press and the bar the trial would in nowise be a secret trial, and the general public could be informed if need be regarding any irregularity or unfairness in the proceedings. Mr. Justice Black, writing for the majority in In re Oliver, 333 U.S. 257, 266-272, 68 S.Ct. 499, 92 L.Ed. 682 (1948), pointed out that the incorporation of the "public trial" protection in the Bill of Rights was primarily a reaction to the gross abuses in the secret proceedings of the English Star Chamber, the Spanish Inquisition and the use of the French lettre de cachet. See...