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

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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.

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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)

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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)

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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

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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

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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

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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.

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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

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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

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“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,

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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’

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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.

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CONCLUSION

For the foregoing reasons, the defendant’s judgment of conviction should be reversed and a new

trial granted.

Respectfully submitted,

Julius Crenshaw

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