Wednesday, August 7, 2013
A criminal conviction was reversed by the New York Appellate Division for the First Judicial Department because an associate of the defense attorney was barred from entering the courtroom during the testimony of an undercover police officer.
Here, the court ruled that during the testimony of the undercover, the courtroom would be closed to the general public but that defendant's grandmother and his girlfriend could be present . Defense counsel specifically told the court that associates from his office wanted to attend, and the court confirmed they could be present. During the undercover's testimony, an attorney from defense counsel's office tried to enter the courtroom, but he was barred by the court officer who had been stationed at the door. The officer went into the courtroom to speak with the sergeant inside, and when the officer returned, he told the attorney that the sergeant had confirmed the courtroom was closed and the lawyer could not enter.
The attorney's exclusion was brought to the court's attention the next day and defense counsel sought a mistrial. The court denied the request acknowledging the closure order had been violated, but stated the burden was on the excluded attorney to take some further action, such as calling the captain or the major, once the officer and the sergeant refused to admit him.
The court held:
The trial court improperly imposed a burden on the party seeking entry to take additional action, such as calling the captain or major in charge of the court, or calling the courtroom
at the lunch recess. The attorney who sought entry had no such burden. Moreover, the attorney was not only denied entry by the officer, but a sergeant confirmed his exclusion. Having been denied admission twice, the attorney did not have to go searching for another higher level supervisor, nor was he obligated to call the court. In fact, it would have been entirely reasonable for the attorney to assume that the sergeant, who was in the courtroom, had consulted with the court and was acting on the court's behalf...
Here, the undercover was the critical witness, and excluding defense counsel's colleague from the courtroom during this time was not inconsequential. Furthermore, defense counsel explained that the excluded attorney was his officemate, with whom he had consulted about the case. The court also acknowledged that the excluded attorney had substantial experience in criminal defense cases. Although there would have been a problem even if the attorney had no such experience or connection to the case, the exclusion here was particularly troubling because defense counsel alerted the court that his colleagues might be coming, and the excluded attorney could have been of assistance to defense counsel during this critical phase of the trial...
The remedy chosen by the court, to give the excluded attorney a copy of the transcript of the undercover's testimony, failed to cure the constitutional error. The appellate case law does not discuss this as a possibility because it is the exclusion itself that violates the constitution. Courts are presumed to be open and while the trial court here had the right to partially close the courtroom during the undercover's testimony, it acknowledged it had no basis for excluding another lawyer from defense counsel's office. Contrary to the People's argument, the exclusion of defense counsel's colleague interfered with the very purpose of the requirement of a public trial. The requirement that the courtroom be open whenever possible and that closure orders be narrowly tailored "is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions" (Waller v Georgia, 467 US 39, 46  [internal quotation marks omitted]). Excluding defense counsel's experienced colleague, who was familiar with the case, deprived defendant of his right to have this person present to assess the undercover's testimony, and enabled the People to present the undercover's testimony without the salutary effects of extra scrutiny.