At page 69 Excluding family members from criminal trial proceedings54 citing cases“special concern for assuring the attendance of family members of the accused”
- Purvis v. State, 708 S.E.2d 283 (Ga. 2011).published(the Supreme Court has specifically noted a special concern for assuring the attendance of family members of the accused)
- State v. Ndina, 2009 WI 21, 761 N.W.2d 612.published ([TJhe Supreme Court has specifically noted a special concern for assuring the attendance of family members of the accused.)
- Sevencan v. Herbert, 152 F. Supp. 2d 252 (E.D.N.Y. 2001).published (In New York City, two locations three miles apart are hardly in the same vicinity.)
- Andre Brown v. Robert Kuhlmann, 142 F.3d 529 (2d Cir. 1998).published See Vidal, 31 F.3d at 68 (“Defense counsel requested that Vidal’s parents, who were present at trial, be allowed to remain in the courtroom.”).
- People v. Zemek, 93 Cal. App. 5th 313 (Cal. Ct. App. 2023).published(See, e.g., Brimmer, supra, 983 N.W.2d at p. 265 [order closing courtroom to all spectators during COVID-19 pandemic was not “narrowly tailored” in failing to “allow[ ] at least the defendant’s family to attend if possible within the param…
- Fraser v. City Of New York, No. 1:20-cv-04926 (S.D.N.Y. Jan. 10, 2023).The only cases of which this court is aware that compel the presence of a defendant’s family in the courtroom arise in connection with criminal trials, and specifically the Sixth Amendment right to a “public” trial.” See Vidal v. Williams,…
- Jordan v. Lamanna, No. 1:18-cv-10868 (S.D.N.Y. Sept. 25, 2020).(reversing denial of habeas and ordering new trial)
- v. Jones, 2020 CO 45, 464 P.3d 735.publishedSee, e.g., In re Oliver, 333 U.S. at 272 (“[A]n accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged.”); English v. Artuz, 164 F.3d 105, 108 (2d Cir. 1998)…
- United States v. Ledee, 762 F.3d 224 (2d Cir. 2014).published “The exclusion of courtroom observers, especially a defendant’s family members and friends, even from part of a criminal trial, is not a step to be taken lightly.” Guzman v. Scully, 80 F.3d 772, 776 (2d Cir.1996). “[T]he Supreme Court has…
- United States v. Urena, 8 F. Supp. 3d 568 (S.D.N.Y. 2014).published([T]he Supreme Court has specifically noted a special concern for assuring the attendance [at trial] of family members of the accused.)
Show 38 more citing cases
- Adams v. City of New York, 993 F. Supp. 2d 306 (E.D.N.Y. 2014).published(holding that without more, the fact that defendant’s parents live in a “high drug area” in the same borough where an Undercover Offi cer works does not justify their exclusion from the courtroom on the basis of concerns…)
- United States v. David Rivera, 682 F.3d 1223 (9th Cir. 2012).publishedThe right to a public trial entitles a criminal defendant “at the very least ... to have his friends, relatives and counsel present, no matter with what offense he may be charged.” In re Oliver, 333 U.S. 257, 272 , 68 S.Ct. 499 , 92 L.Ed.…
- Downs v. Lape, 657 F.3d 97 (2d Cir. 2011).published (reversing denial of writ where courtroom closed to public, including defendant’s parents, during witness testimony)
- State v. LORMOR, 224 P.3d 857 (Wash. Ct. App. 2010).published ([T]he Supreme Court has specifically noted a special concern for assuring the attendance of family members of the accused.)
- Gibbons v. Savage, 555 F.3d 112 (2d Cir. 2009).publishedVidal v. Williams, 31 F.3d 67, 69 (2d Cir.1994) (citing In re Oliver, 333 U.S. 257 , 271-72 & n. 29, 68 S.Ct. 499 , 92 L.Ed. 682 (1948)).
- Rodriguez v. Miller, 537 F.3d 102 (2d Cir. 2008).published(noting a tradition of “a special concern for assuring the attendance of family members of the accused)
- Rodriguez v. Miller, 499 F.3d 136 (2d Cir. 2007).published(noting a tradition of “a special concern for assuring the attendance of family members of the accused)
- United States v. Perry, Antoine, 479 F.3d 885 (D.C. Cir. 2007).published([T]he Supreme Court has specifically noted a special concern for assuring the attendance of family members of the accused.)
- Hoi Man Yung v. Hans Walker, 468 F.3d 169 (2d Cir. 2006).publishedIn doing so, he cited our decision in Vidal v. Williams, 31 F.3d 67, 69 (2d Cir.1994), which held that an order excluding family members was not appropriate where the prosecutor failed to show that the excluded family members likely would…
- Bryant Smith v. Melvin L. Hollins, 448 F.3d 533 (2d Cir. 2006).published (noting “a special' concern for assuring the attendance of family members of the accused)
- Jose Rodriguez v. David Miller, 439 F.3d 68 (2d Cir. 2006).published (noting the Supreme Court’s “special concern for assuring the attendance of family members of the accused)
- United States v. Wendell Smith, 426 F.3d 567 (2d Cir. 2005).publishedSee, e.g., Sevencan v. Herbert, 342 F.3d 69 (2d Cir.2003); Yung v. Walker, 341 F.3d 104 (2d Cir.2003); English v. Artuz, 164 F.3d 105 (2d Cir.1998); Guzman, 80 F.3d at 776-77 ; Vidal v. Williams, 31 F.3d 67, 69 (2d Cir.1994).
- Uniko Carson v. Brian Fischer, 421 F.3d 83 (2d Cir. 2005).published Our heightened interest in the exclusion of family members and friends derives from In re Oliver, 333 U.S. 257 , 68 S.Ct. 499 , 92 L.Ed. 682 (1948), where the Court “specifically noted a special concern for assuring the attendance of famil…
- Hoi Man Yung v. Hans Walker, 341 F.3d 104 (2d Cir. 2003).publishedThird, although the court ordinarily may justify a partial closure based on a substantial reason and need not find an overriding interest, id. (citing Guzman v. Scully, 80 F.3d 772, 775 (2d Cir.1996)), a more rigorous standard applies to f…
- McCarthy v. Portuondo, 62 F. App'x 17 (2d Cir. 2003).unpublishedFor example, in Vidal v. Williams, 31 F.3d 67, 69 (2d Cir.1994), cert. denied, 513 U.S. 1102 , 115 S.Ct. 778 , 130 L.Ed.2d 672 (1995), we rejected the State’s claim that an undercover witness’s safety might be threatened if the defendant’s…
- Hoi Man Yung v. Hans Walker, 296 F.3d 129 (2d Cir. 2002).publishedThird, although the court ordinarily may justify a partial closure based on a substantial reason and need not find an overriding interest, id. (citing Guzman v. Scully, 80 F.3d 772, 775 (2d Cir.1996)), a more rigorous standard applies to f…
- Andrew Brown v. Christopher Artuz, 283 F.3d 492 (2d Cir. 2002).published(holding that a trial court is not permitted to deny a defendant’s family access to his trial simply because the family lives in the same borough in which the undercover officer seeking closure works)
- Yung v. Walker, 143 F. Supp. 2d 262 (S.D.N.Y. 2001).published The “Supreme Court has specifically noted a special concern for assuring the attendance of family members of the accused.” Vidal v. Williams, 31 F.3d 67, 69 (2d Cir.1994) (citing In re Oliver, 333 U.S. 257 , 271-72 *270 & n. 29, 68 S.Ct. 4…
- Kathleen A. Braun v. Barbara Powell, 227 F.3d 908 (7th Cir. 2000).published (writ granted after court excluded defendant’s parents from testimony of police officer)
- Mason v. Schriver, 14 F. Supp. 2d 321 (S.D.N.Y. 1998).published See also, e.g., Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 , 104 S.Ct. 819, 824 , 78 L.Ed.2d 629 (1984); Vidal v. Williams, 31 F.3d 67, 68-69 (2d Cir.1994), ce rt. denied, 513 U.S. 1102 , 115 S.Ct. 778 , 130 L.…
- Craig Martin v. Lynn Bissonette, 118 F.3d 871 (1st Cir. 1997).published (noting “a special concern for assuring the attendance of family members of the accused)
- People v. Nieves, 683 N.E.2d 764 (N.Y. 1997).publishedWhere, by contrast, the trial court is aware that the defendant’s relatives have been attending the proceedings or that the defendant would like to have certain family members present, exclusion of those individuals must be necessary to pr…
- Kelly v. Meachum, 950 F. Supp. 461 (D. Conn. 1996).publishedHowever, “it is well-settled that a defendant whose right to a public trial has been violated need not show that he suffered any prejudice, and the doctrine of harmless error does not apply.” Guzman, 80 F.3d at 776 (citing, inter alia, Wal…
- People v. Nieves, 232 A.D.2d 305 (N.Y. App. Div. 1st Dep't 1996).publishedIt could hardly be considered prudent to permit the extensive viewing of a detective who is actively engaged in undercover operations in the very neighborhood where the observers reside (see, People v Martinez, 82 NY2d 436, 443 ; cf., Vida…
- Steven Ayala v. Hubert Speckard, 89 F.3d 91 (2d Cir. 1996).published Guzman, 80 F.3d at 775 (emphasis added); Vidal, 31 F.3d at 69 (emphasis added); Woods, 977 F.2d at 76 (emphasis added).
- Cosentino v. Kelly, 926 F. Supp. 391 (S.D.N.Y. 1996).published Waller, 467 U.S. at 49 -50 & n. 9, 104 S.Ct. at 2217 & n. 9; Guzman, 80 F.3d at 776-77 ; *395 Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994), cert. denied, — U.S. —, 115 S.Ct. 778 , 130 L.Ed.2d 672 (1995); Ip v. Henderson, 710 F.Supp. 91…
- United States v. John Doe, 63 F.3d 121 (2d Cir. 1995).publishedTo be sure, where closure motions *130 are at issue, the record must support an inference of a substantial probability of danger, see Vidal v. Williams, 31 F.3d 67, 69 (2d Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 778 , 130 L.Ed.2d 672…
- State of Arizona v. Marcus Deshaun Tucker, 290 P.3d 1248 (Ariz. Ct. App. 2012).published In re Oliver, 333 U.S. 257 , 271-72 & 272 n. 29, 68 S.Ct. 499 , 92 L.Ed. 682 (1948); accord Vidal, 31 F.3d at 69 ; English, 164 F.3d at 108 ; see also Braun v. Powell, 227 F.3d 908 , 917 & n. 6 (7th Cir.2000) (collecting cases).
- Salih Sevencan v. Victor Herbert, 316 F.3d 76 (2d Cir. 2002).published See Id. at 50 & n. 9, 104 S.Ct. 2210 . 31 In Vidal v. Williams, 31 F.3d 67 (2d Cir.1994), we reversed a District Court's denial of a habeas petition on the ground that the closure of a courtroom to a defendant's parents was improper.
- Vernon Bowden v. John Keane, 237 F.3d 125 (2d Cir. 2001).published([T]he Supreme Court has specifically noted a special concern for assuring the attendance [at trial] of family members of the accused.)
- Armando Guzman v. Charles Scully, 80 F.3d 772 (2d Cir. 1996).published
- Steven Ayala v. Hubert Speckard, 102 F.3d 649 (2d Cir. 1996).published
- Rose Ann Brown v. Anginell Andrews, 180 F.3d 403 (2d Cir. 1999).published
- Okonkwo v. Lacy, 895 F. Supp. 571 (S.D.N.Y. 1995).published
- Cadilla v. Johnson, 119 F. Supp. 2d 366 (S.D.N.Y. 2000).published
- v. Irving, 2019 COA 1.published
- English v. Artuz, 990 F. Supp. 156 (E.D.N.Y. 1998).published
- Gerald English v. Christopher Artuz, 164 F.3d 105 (2d Cir. 1998).published
At page 68 Excluding family from trial testimony under sixth amendment5 citing casesDefense counsel requested that Vidal’s parents, who were present at trial, be allowed to remain in the courtroom.
- Andre Brown v. Robert Kuhlmann, 142 F.3d 529 (2d Cir. 1998).published (Defense counsel requested that Vidal’s parents, who were present at trial, be allowed to remain in the courtroom.)
- People v. Zemek, 93 Cal. App. 5th 313 (Cal. Ct. App. 2023).published(although excluding the general public was justified, there was insufficient reason to prohibit defendant’s parents from being present)
- Mason v. Schriver, 14 F. Supp. 2d 321 (S.D.N.Y. 1998).published See also, e.g., Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 , 104 S.Ct. 819, 824 , 78 L.Ed.2d 629 (1984); Vidal v. Williams, 31 F.3d 67, 68-69 (2d Cir.1994), ce rt. denied, 513 U.S. 1102 , 115 S.Ct. 778 , 130 L.…
- Steven Ayala v. Hubert Speckard, Superintendent of Groveland Corr. Facility, Charles Okonkwo v. Peter J. Lacy, Superintendent of Bare Hill Corr. Facility, Howard Pearson v. Charles James, Superintendent of Collins Corr. Facility, 131 F.3d 62 (2d Cir. 1997).published
- Ayala v. Speckard, 131 F.3d 62 (2d Cir. 1997).published
Other citing cases
- People v. Hassen, 412 P.3d 515 (Colo. Ct. App. 2013).published
- Salih Sevencan v. Victor Herbert, 342 F.3d 69 (2d Cir. 2003).published
- State v. Washington, 142 Ohio App. 3d 268 (Ohio Ct. App. 8th Dist. 2001).published
v.
Joseph WILLIAMS, Superintendent of Fulton Correctional Facility, Respondent-Appellee
Peter Vidal appeals from a judgment of the District Court for the Southern District[*68] of New York, Preska, </., dismissing his petition for a writ of habeas corpus. The district court held that Vidal’s Sixth Amendment right to a public trial was not violated when his criminal trial in the New York Supreme Court, Bronx County, was closed to the public — including Vidal’s parents — during the testimony of an undercover police officer. As we conclude that the exclusion of Vidal’s parents was improper, we reverse and remand.
I.
The trial testimony showed the following. On January 5,1988, undercover police officer Irvin Noak, police officer James O’Connell, and a backup team conducted a “buy and bust” operation at a small grocery store at 866 Union Avenue in the Bronx. Noak entered the store and offered to purchase crack cocaine from Vidal who was working behind the counter. Vidal offered to sell a $20 vial of crack, which Noak purchased with prerecorded buy money. Noak then left the store and radioed Vidal’s description to O’Connell, who was waiting a few blocks away. O’Connell and the backup unit arrested Vidal and three other individuals, and seized twenty-nine vials of crack cocaine and $10 of the prerecorded buy money. Noak then drove by the front of the store and identified Vidal as the seller.
Vidal was charged with sale of a controlled substance, possession with intent to sell a controlled substance, and possession of a controlled substance. At trial, the state called Officers O’Connell and Noak. Prior to Noak’s testimony, the prosecution made an application to close the courtroom during Noak’s testimony in order to protect his identity as an undercover officer.
At an in camera hearing, Noak testified that he was still working undercover in an anti-crack unit that operated in the vicinity of 866 Union Avenue. He feared that his life would be in danger if his identity became known, as other undercover officers had been threatened or harmed after their identities had been disclosed.
Defense counsel requested that Vidal’s parents, who were present at trial, be allowed to remain in the courtroom during Noak’s testimony. Vidal’s parents lived near the courthouse on Gerard Avenue, and to counsel’s knowledge they did not frequent the vicinity of 866 Union Avenue.
The court granted the prosecution’s application and closed the courtroom during Noak’s testimony. The court found that Noak feared for his life and safety, that Noak was still involved in undercover activities in the same area, and that other undercover officers had been threatened and even wounded. The court closed the courtroom to Vidal’s parents because Noak worked in a Bronx-wide unit, there were many high-drug areas near the courthouse, and “it’s conceivable and entirely possible that the officer may be recognized by them while he’s involved in another undercover operation, and if the defendant is convicted, ... [his parents] may not have a fondness for the officer.”
Vidal was convicted of one count of possession of a controlled substance and one count of sale of a controlled substance, and was sentenced to two concurrent prison terms of five to fifteen years. The Appellate Division affirmed the conviction, People v. Vidal, 172 A.D.2d 228, 667 N.Y.S.2d 727 (1st Dept.1991), and the Court of Appeals denied leave to appeal, People v. Vidal, 78 N.Y.2d 927, 577 N.E.2d 1072, 573 N.Y.S.2d 480 (1991).
On January 11, 1993, Vidal filed a petition for a writ of habeas corpus in the Southern District, claiming that the state had violated his Sixth Amendment right to a public trial. On July 20, 1993, the court denied the application without a hearing, finding that the closure was justified under the circumstances. Vidal appeals, arguing that the trial court was required to keep the courtroom open to the general public, or at least to his parents.
II.
A criminal defendant’s Sixth Amendment right to a public trial “may give way in certain cases to other rights or interests.” Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984). A court may close a criminal trial over the defendant’s objection if the following requirements are met:
[*69] the party seeking to close the [trial] 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.
Id. at 48, 104 S.Ct. at 2216. At issue is whether the exclusion of Vidal’s parents was “necessary to protect” the state’s interest in assuring Noak’s safety. [1] We conclude that it was not.
The state argues that it was necessary to exclude Vidal’s parents to prevent them from recognizing Noak during an undercover operation and disclosing his identity as retribution for their son’s conviction. We disagree. There was no evidence that Vidal’s parents were inclined to harm a police officer. In fact, the prosecutor stated that to the best of his knowledge Vidal’s parents were “very decent individuals.”
More importantly, there was little chance that Vidal’s parents would have encountered Noak during an undercover operation. The trial court found that an encounter was likely because Vidal’s parents lived in the Bronx and Noak’s unit operated throughout the Bronx. However, the Bronx covers 41 square miles and has 1.2 million residents. See People v. Martinez, 82 N.Y.2d 436, 443, 624 N.E.2d 1027, 1031, 604 N.Y.S.2d 932, 936 (1993). A chance meeting somewhere in the Bronx was unlikely. The exclusion was not justified.
The state argues that two facts made an encounter likely. First, Gerard Avenue, where Vidal’s parents lived, is in the vicinity of 866 Union Avenue, where the arrest occurred and where Noak still worked undercover. In support of this argument, the state asks us to take judicial notice that the two locations are less than three miles apart. The argument is not persuasive. In New York City, two locations three miles apart are hardly in the same vicinity. Almost seventy percent of the Bronx (and 830,000 people) could fit within three miles of 866 Union Avenue.
Second, the state argues that an encounter would be likely because the parents lived in a “high drug area.” Again, we are not persuaded. Despite the state’s assertions, the trial judge did not find that Vidal’s parents lived in a high drug area. The trial judge merely noted that the parents lived on Gerard Avenue (which is near the courthouse), and that “there are areas not far from the courthouse that are known as high drug areas.” Thus, the record only indicates that Vidal’s parents lived mar a high drug area. Given the scope of the drug problem in the Bronx, there is minimal risk that two people who happen to live near a high drug area will have a chance meeting with a specific undercover officer working throughout the borough.
In sum, the state is asking this court to hold that a courtroom can be closed to a defendant’s relatives as long as the relatives live (or, presumably, work) in the county where the undercover officer operates. Such a holding would violate the rule that closure is reserved for rare circumstances in which “the balance of interests [are] struck with special care.” Waller, 467 U.S. at 46, 104 S.Ct. at 2215. Moreover, the Supreme Court has specifically noted a special concern for assuring the attendance of family members of the accused. See In re Oliver, 333 U.S. 257, 271-72 & n. 29, 68 S.Ct. 499, 506-07 & n. 29, 92 L.Ed. 682 (1948). Finally, we observe that the trial court gave no consideration to less restrictive alternatives such as screening devices to conceal the witness’s identity. See United States v. Lucas, 932 F.2d 1210, 1216-17 (8th Cir.), cert. denied, — U.S. -, 112 S.Ct. 399, 116 L.Ed.2d 348 (1991).
As the petitioner need not show prejudice, Waller, 467 U.S. at 49-50, 104 S.Ct. at 2217, we reverse the district court’s denial of the writ of habeas corpus, and remand for entry of an order granting the petitioner’s release unless the state affords him a new trial within a reasonable time.
Reversed and remanded.
. Vidal also contests the exclusion of the general public. Because we reverse on the ground that the exclusion of his parents was improper, we do not decide that issue.