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12-1234-crUnited States Court of Appeals
for the Second Circuit
MARTIN LESTER,Defendant-Appellant,
v.
UNITED STATES OF AMERICA,Respondent-Appellee.
On Appeal from the United States District Court
for the Northern District of New York
BRIEF FOR DEFENDANT-APPELLANT
Jerehme Bamberger
205 State Street
1
Brooklyn, NYISSUES PRESENTED
1. Whether the trial court's reasoning as to the necessity for closure of half of the voir dire to all
spectators, including the defendant’s wife and mother, satisfies the criteria for constitutional
courtroom closure laid out by the Supreme Court in Waller v. Georgia, 467 U.S. 39 (1984).
2. If not, whether the defendant was deprived of the protections conferred upon him by his 6th
Amendment right to a public trial, rendering this court's “triviality doctrine” inapplicable.
2
STATEMENT OF FACTS
On June 13, 2012, the voir dire for Martin Lester's trial on RICO Act charges was scheduled to
begin. Several panels of prospective jurors were present in the court house and the judge anticipated a
lengthy jury selection (JA: 1). Shortly after a deputy was dispatched to bring in the potential jurors, the
court inquired after the identities of the spectators present, and stated that they would have to leave the
courtroom “to accommodate the jury panels” (JA: 2). Once the court was informed that the spectators
were Mr. Lester's family and friends, it asserted its reasons for the closure of the voir dire: first, concern
that there would be insufficient seats for the prospective jurors, and second, a desire to avoid any
improper contact between potential jurors and the public. The court also noted its belief that the
presence of Mr. Lester's family and friends could intimidate the potential jurors or otherwise reduce the
candor with which the juror interviews were conducted. The trial judge added that the latter concern
was partially fueled by the defendant's alleged association with “organized crime” (JA: 2).
Defense counsel objected that such a closure was a violation of Mr. Lester's 6th Amendment
right to a public trial and Supreme Court precedent.1 The trial judge responded that Mr. Lester's Sixth
Amendment right was not absolute, and emphasized her obligation to ensure that prospective jurors did
not feel intimidated and were not exposed to improper communications from spectators (JA: 3). The
judge expressed a concern for the expedience of the proceedings, and regret that she had not found a
larger courtroom in which to conduct the trial. She also referenced “unfortunate experiences on this
front in prior cases that involved organized crime” (JA: 3).
In response to the court's invitation that he “suggest a more reasonable arrangement,” defense
counsel reiterated his objection to the exclusion of Mr. Lester's family and friends. Counsel observed
that there was no evidence that Mr. Lester's family and friends would engage in any kind of improper
1? Presley v. Georgia, 558 U.S. 209 (2010)
3
behavior and mentioned that making room for prospective jurors was an insufficient reason to exclude
the public from voir dire under the Supreme Court's landmark case regarding 6th Amendment
limitations on courtroom closure, Waller v. Georgia (JA: 4).2 Finally, defense counsel proposed that the
court set aside seats for a few adult spectators , but the court declined to allow any of Mr. Lester's
family and friends to remain (JA: 4). The public was ordered to leave the courtroom for an
indeterminate amount of time (JA: 5).
Before the court's order had been fully executed, Mr. Lester's wife Marie petitioned the court
that she and Mr. Lester's mother, Elizabeth, be allowed to stay. She promised that they would be very
quiet, and even offered to stand in the back of the courtroom. Repeating its concern that Mr. Lester's
wife or mother might communicate with the prospective jurors in some way, and assuring them that
they would be allowed to return “shortly,” the court ejected them both. There were no members of the
public present as the potential jurors were escorted into the courtroom on the morning of June 13th (JA:
5).
On the afternoon of June 15th, the courtroom was reopened to spectators. The court estimated
that approximately half of jury selection had already taken place, and stated that a rush transcript of the
closed portion of the proceedings would be available. Mr. Lester's wife, mother and other family
members attended the afternoon session of the voir dire, as well as the remainder of the proceedings
against their relative (JA: 6).
2? Waller v. Georgia, 467 U.S. 39 (1984)
4
ARGUMENT
I. THE COURT VIOLATED MARTIN LESTER'S SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL WHEN IT CLOSED THE VOIR DIRE PROCEEDING TO ALL SPECTATORS, INCLUDING THE DEFENDANT'S FAMILY AND FRIENDS, WITHOUT FIRST MAKING ADEQUATE FINDINGS REGARDING THE INTERESTS AT STAKE OR ALTERNATIVES TO CLOSURE.
The closure of the voir dire in this case was a clear violation of the defendant's Sixth
Amendment right to a public trial because the judge failed to adequately address the perquisites set out
by the Supreme Court in Waller v. Georgia, 467 U.S. 39 (1984). The Sixth Amendment to the
Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial . . . .” U.S. Const. Amend. VI. In Presley v. Georgia, 558 U.S. 209, 213 (2010), the Supreme
Court clarified that this right is not absolute where there is a “compelling interest” to the contrary, and
conclusively extended the public trial right to voir dire proceedings. The Waller factors are: “the party
seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced, the
closure must be no broader than necessary to protect that interest, the trial court must consider
reasonable alternatives to closing the proceeding, and it must make findings adequate to support the
closure.” Waller, 467 U.S. at 48. The instant trial court justified its exclusion of all spectators,
including Mr. Lester's wife and mother, from half of the voir dire purely on the basis of a generalized
concern for efficiency, fear of contamination of the jury pool, and the potential for juror intimidation.
The court's failure to elucidate an overriding interest or make particularized findings to support its
order are ample grounds for vacating Mr. Lester's conviction and granting him a new trial.
The legal standards governing the issue of courtroom closure derive from the Sixth Amendment
to the Constitution, which ensures a fair trial to all criminal defendants by guaranteeing that “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” U.S. Const.
Amend. VI. In Presley, the Supreme Court conclusively extended the Sixth Amendment public trial
guarantee to voir dire proceedings. Presley, 558 U.S. at 212. The Supreme Court also clarified in that
5
case that “[t]he right to an open trial may give way in certain cases to other rights or interests, such as
the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive
information.” Id. at 213, (citation omitted). In Waller, the Supreme Court found that “the party
seeking to close the [proceeding] must advance an overriding interest that is likely to be prejudiced, the
closure must be no broader than necessary to protect that interest, the trial court must consider
reasonable alternatives to closing the proceeding, and it must make findings adequate to support the
closure.” Waller, 467 U.S. at 48. This court's guiding principle for Waller questions is that “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 if the courtroom is not closed.” Bowden v.
Keane, 237 F.3d 125, 129 (2d Cir. 2001).
A. THE COURT’S CONCERNS ABOUT EXPEDIENCE, IMPROPER COMMUNICATION AND THE ASSOCIATION OF THE DEFENDANT WITH ORGANIZED CRIME DID NOT RISE TO THE LEVEL OF OVERRIDING INTERESTS
The first prong of the Waller test is the identification of an “overriding interest” which would be
prejudiced without closure. Waller, 467 U.S. at 48. In Ayala v. Speckard, 131 F.3d 62, 70 (2d Cir.
1997)(in banc), this court wrote that “the sensible course is for the trial judge to recognize that open
trials are strongly favored, to require persuasive evidence of serious risk to an important interest in
ordering any closure, and to realize that the more extensive is the closure requested, the greater must be
the gravity of the required interest. . . .” In that case, protecting the identity of an undercover narcotics
agent during trial testimony, for the purposes of his continued effectiveness and safety, was found to be
an overriding interest. Id. at 72. However, this court has held that lack of space and fears of jury pool
contamination are insufficient to justify voir dire closure. United States v. Gupta, 699 F.3d 682, 687
(2d Cir. 2012)(in banc).
Although the trial court's concern for Mr. Lester's Sixth Amendment right to a public
6
trial is evident from the record, it failed to identify any concern which qualified as an
“overriding interest.” The trial court here identified three interests which motivated its closure
of the courtroom to spectators: potential juror intimidation, preclusion of improper
communications, and expediency of the proceedings.
Without further findings, none of these concerns rise to the level of an “overriding
interest.” It is conceivable that the defendant's alleged association with “organized crime,”
(JA:2, 4), could form the basis for excluding his associates, but without at least a minimal
inquiry into the actual dispositions of the potential jurors (such as that found in Woods) the trial
court cannot claim to have had actual knowledge that its interest in candor from prospective
jurors was threatened. Woods v. Kuhlmann, 977 F.2d 74, 77 (2d Cir. 1992)(testimony from
witness that she would feel intimidated by spectators’ presence sufficient to justify closure). In
Guzman, 80 F.3d at 775, this court held that the “fact that the trial court relied on the
unsubstantiated statements of the prosecutor [that the witness ‘felt intimidated’] rather than
conducting an inquiry of the prosecution witness on whose behalf the closure request was
made” was the basis of finding a “violation of the first Waller criterion. . . .” Here, the trial
judge made no effort to inquire beyond her own preconceived notions of the venire's possible
intimidation. The court's findings on this point seem to be even less substantiated than the
prosecutor's claim in Guzman.
Similarly, the trial court seems to have had no factual basis for its fear that inappropriate
communication would occur, particularly after Mr. Lester's wife and mother promised to be
“very quiet,” (JA: 5). This court found in Gibbons v. Savage, 555 F.3d 112, 117 (2d Cir. 2009),
that “[a]bsent some indication that the defendant's mother might communicate improperly with
members of the venire, the mere fact that some might be in close proximity to her did not raise
a meaningful risk . . . .” The record reflects no indication that either Mr. Lester's wife or
7
mother would have been disruptive in any way.
B. THE CLOSURE WAS BROADER THAN NECESSARY BECAUSE THE COURT COULD HAVE PROVIDED SPACE FOR THE DEFENDANT'S WIFE AND MOTHER.
The second prong of the Waller test is closely tied to the first: the scope of the closure must be
“no broader” than is required to protect the interest the court identifies in the first prong. Waller, 467
U.S. at 48. In Bowden this court explained that “there will not always be a meaningful analytic
distinction between the first and second prongs of the Waller test” because “in many cases there will be
an appropriately proportional relationship between the scope of a closure and the risk that justifies the
closure precisely because the closure is as narrowly tailored as reasonably possible.” Bowden, 237 F.3d
at 130 n.2. In cases where there is no overriding interest, “there [can] be no compliance with the
second requirement that the closure be no broader than necessary to protect the interest.” Guzman v.
Scully, 80 F.3d 772, 776 (2d Cir. 1996)(internal citation omitted).
While it can be conceded that some alternatives to complete closure of the courtroom
during half of the voir dire proceeding would have slowed jury selection to some extent, the
court's interests could have been accommodated without complete closure. Although the court
does have an interest in preventing “mingling” and promoting efficiency, “[t]he exclusion of
courtroom observers, especially a defendant's family members, even from part of a criminal
trial, is not a step to be taken lightly.” Guzman, 80 F.3d at 776. In Gibbons, this court wrote
that “even if maintaining distance between the defendant's mother and the prospective jurors
amounts to an overriding interest … , [t]he court's ruling to ban all spectators was broader than
necessary to preserve that separation . . . .”3 Gibbons, 555 F.3d at 117. So it is in the instant
3? This passage touches on another minor point: although this court has held that proceedings held before
“representatives of the community,” such as jurors or, presumably, a venire panel, are not “completely closed,” Waller's mandate that the closure be “no broader than necessary” required the trial court to make any possible accommodations prior to ejecting the defendant's family. Brown v. Kuhlmann, 142 F.3d 529, 536 (2d Cir. 1998) Further, in Gibbons this court found that the closure of a voir dire “to all spectators” meant that “the courtroom was closed within the meaning of the Sixth Amendment.” Gibbons, 555 F.3d at 117.
8
case.
C. THE COURT FAILED TO ENTER ITS CONSIDERATION OF REASONABLE ALTERNATIVES TO CLOSURE INTO THE RECORD WHEN IT SUMMARILY DISMISSED ALTERNATIVES PROPOSED BY DEFENSE COUNSEL AND THE DEFENDANT'S FAMILY
The third Waller factor, the consideration of reasonable alternatives to closure, has been a
divisive subject for this court. In Ayala v. Speckard, 131 F.3d at 64, this court concluded that trial
courts are not obligated to consider any particular alternatives to closure unless they are proposed by
defense counsel. The Supreme Court overturned this rule when it noted that “[t]rial courts are
obligated to take every reasonable measure to accommodate public attendance at criminal trials.”
Presley, 558 U.S. at 215.
Even if the trial court's obligation to consider alternatives to the total exclusion of
spectators is restricted to those explicitly brought to its attention, its discussion of the issue did
not address the third Waller factor adequately. Even crediting the trial court's concern for
expedience as an “overriding interest,” its exclusion of Mr. Lester's wife and mother violated
its duty to “accept [an] alternative when it would be reasonable to do so and unreasonable not
to do so.” Gibbons, 555 F.3d at 118. The trial judge offered no findings as to why the
defendant's wife and mother could not stand at the back of the room, quiet and at an adequate
distance from the venire – she simply repeated her order for them to leave (JA: 5). In addition,
if the Supreme Court’s mandate that trial courts consider alternatives sua sponte holds in this
case, Presley, 558 U.S. at 213, the trial judge ought to have considered the alternative
advanced in Gibbons: allowing at least Mr. Lester's mother to “sit in the well of the courtroom,
directly behind counsel” was well within the trial court's discretion. Gibbons, 555 F.3d at 114.
D. THE COURT FAILED TO SATISFY THE FOURTH WALLER FACTOR WHEN IT DID NOT MAKE ANY PARTICULARIZED FINDINGS TO SUPPORT ITS DETERMINATIONS ON THE OTHER WALLER FACTORS.
The fourth and final Waller factor mandates that the court “make findings adequate to
9
support the closure.” Waller, 467 U.S. at 48. The findings’ adequacy is predicated on whether
the they specifically support the nature and scope of the closure ordered. In Waller, Id., the
State’s argument that “privacy interests” justified the closure of a hearing in which recorded
conversations were to be played failed because it did not specify “whose privacy interests
might be infringed, how they would be infringed, what portions of the tapes might infringe
them, and what portion of the evidence consisted of the tapes.” In Guzman, this court found a
prosecutor's claim that a witness feared testifying before certain spectators was insufficient to
support the spectators' exclusion. Guzman, 80 F.3d at 776. In English v. Artuz, 164 F.3d 105,
109-10 (2d Cir. 1998), this court held that despite a closure hearing during which it considered
each of the Waller factors, the lower court failed to make particularized findings which
supported banning the defendant's family from viewing key witness testimony.
Under this Court's precedent, the trial court failed to support its order to close the
courtroom to all spectators with adequate findings of fact. In order to substantiate its claim
that the “nature of the charges at issue” were grounds for closure, the trial court would have
needed to enter into the record statements from prospective jurors which reflected a fear of the
defendant's associates or the potential for improper communication. Bowden, 237 F.3d at 128
(undercover narcotics detective's hearing testimony that he had been “threatened by drug
dealers who suspected he was a police officer” supported closure of that detective's trial
testimony); English, 164 F.3d at 107, (fact that “trial court asked the prosecutor about possibly
allowing [defendant's] family members to remain in the courtroom … [but] failed to use the
colloquy to justify the exclusion...” grounds for granting new trial). The trial court did not
solicit statements from anyone in the jury pool regarding the possibility that they would be
intimidated by the presence of Mr. Lester’s family and friends. This court has been quite clear
that a “conclusory justification,” such as the trial judge's reference in this case that
10
“unfortunate experiences … in prior cases that involved organized crime,” is insufficient to
support even partial closure. Guzman, 80 F.3d at 776.
Finally, in Gupta, 699 F.3d at 687, this court affirmed that both “the large number of jurors and
the need to protect the panel from hearing anything about the case from any member of the public
present” cannot be justifications for closure, regardless of the quality of the court's findings. It is clear
from the court's minimal discussion of its reasoning prior to ordering the spectators excluded from half
of the voir dire that it failed to meet the Waller factors.
II. THE DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT PROTECTIONS BECAUSE THE PUBLIC WAS INTENTIONALLY EXCLUDED, WITHOUT JUSTIFICATION, FROM A SUBSTANTIVE PORTION OF THE COURTROOM DURING HALF OF HIS VOIR DIRE PROCEEDING.
The closure ordered by the trial judge was not trivial because it deprived Mr. Lester of Sixth
Amendment protections. In a line of cases beginning with Peterson v. Williams, 85 F.3d 39 (2d Cir.
1996), this court established a “triviality standard” for review of unjustified courtroom closures. The
standard considers “whether the actions of the court and the effect that they had on the conduct of the
trial deprived the defendant – whether otherwise innocent or guilty – of the protections conferred by the
Sixth Amendment.” Id. at 42. Here, the trial judge insisted on the removal of all spectators, including
the defendant's wife and mother, from the courtroom for approximately half of the jury selection
process. This is a significantly greater infringement on 6th Amendment values than in Peterson, Id. at
44, where unjustified closure was found trivial due to the brief, incomplete and inadvertent nature of
the exclusion. The deliberate, prolonged and sweeping nature of the courtroom closure during half of
Mr. Lester's voir dire indicates that the triviality doctrine is not applicable in the instant case.
In Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir. 1996), this court explains that the
Supreme Court has “distinguished between two classes of constitutional errors: the vast majority,
denominated ‘trial errors,’ which are subject to harmless error review, and a very limited class of errors,
11
called ‘structural,’ which require automatic reversal … [because] they fundamentally undermine the
fairness or the validity of the trial. . . .” In Waller, the Supreme Court makes clear that unjustified
courtroom closure is a structural defect not subject to harmless error analysis. Waller, 467 U.S. at 49.
The triviality doctrine presents an alternative to the harmless error analysis by “conclud[ing] that the
error was not significant enough to rise to the level of a constitutional violation.” Carson v. Fischer,
421 F.3d 83, 94 (2d Cir. 2005). This court has “repeatedly emphasized … the [triviality] doctrine's
narrow application.” Gupta, 699 F.3d at 688 (citation omitted).
As a basis for determining whether a defendant has been deprived of his public trial protections,
Peterson enumerates four “values furthered by the public trial guarantee … : 1) to ensure a fair trial; 2)
to remind the prosecutor and judge of their responsibility to the accused and the importance of their
functions; 3) to encourage witnesses to come forward; and 4) to discourage perjury.” Peterson, 85 F.3d
at 43. In Gibbons this court noted that “[t]he third and fourth values … articulated in Peterson are not
implicated by voir dire because no witnesses testified.” Gibbons, 555 F.3d at 121.
The triviality analysis is holistic and fact-specific. For instance, the Peterson holding was
confined to “the context of [that] case, where the closure was 1) extremely short, 2) followed by a
helpful summation, and 3) entirely inadvertent . . . .” Peterson, 85 F.3d at 44. The factual context may
render a closure trivial if “the openness of the proceeding itself, regardless of what actually transpires,
that imparts the appearance of fairness so essential to public confidence in the system as a whole” is
preserved. Gupta, 699 F.3d at 689 (citation omitted)(internal quotation marks omitted).
The exclusion of the Mr. Lester’s wife and mother is the most compelling evidence that this
closure was not trivial. In Guzman, 80 F.3d at 775, this court declined to apply the triviality doctrine,
and stated that trial courts are “obliged to give significant weight” to the fact those excluded include
defendant’s family. The arbitrary determination that the trial court made in this case, unsupported by
factual findings and in the face of several reasonable alternatives, compromised the proceedings’
12
appearance of fairness, a Peterson value which is reemphasized in Gupta. If a closure order made on
such insufficient grounds is allowed to stand, this court will be sending the message that lower courts
may favor efficiency and personal intuition over “their responsibility to the accused and the importance
of their functions. . . .” Peterson, 85 F.3d at 43.
Furthermore, the duration of the closure in the instant case was significantly longer than the one
afternoon out of “several days,” as in Gibbons, and it goes well beyond the twenty minute closure that
formed the basis of the triviality doctrine in Peterson. Gibbons, 555 F.3d at 114; Peterson, 85 F.3d at
41. Although it was not as extensive as the closure held non-trivial in Gupta, exclusion of the public
from half of the voir dire surely meant that more than the mere formalities and non-public peremptory
challenges sealed in Morales v. United States, 635 F.3d 39, 44 (2d Cir. 2011), were hidden from the
public here. In addition, this court made much of the inadvertent nature of the closure in Peterson, 85
F.3d at 44, while the closure in the instant case was indisputably intentional.
Finally, the “rush transcript” offered by the court in the instant case could be analogized the
“helpful summation” in Peterson, and the court in Brown listed “the transcript which was available to
the public” as a factor in its finding of triviality there. Brown, 142 F.3d at 536. However, there is no
reason to believe that the rush transcript alone cures the procedural defects in this case, since in
Peterson this court “[did] not even hold that the combination of all three necessarily compels a finding
of constitutionality.” Peterson, 85 F.3d at 44. Given that the court's closure order in this case was
significantly more extensive than in cases like Morales and Peterson, it is appropriate to grant the
defendant vacatur of conviction and a new trial.
13
CONCLUSION
For the foregoing reasons, the defendant’s judgment of conviction should be reversed and a new
trial granted.
Respectfully submitted,
Julius Crenshaw
14