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Granting a petition for a writ of habeas corpus, the 2d U.S. Circuit Court of Appeals held that a trial court judge’s ruling that a defendant’s relatives could not be present for the testimony of an undercover narcotics officer, unless they were blocked from seeing the officer by a screen, violated the Sixth Amendment right to a public trial. Rodriguez v. Miller, No. 04-6665-pr. The defendant, Jose Rodriguez, was convicted on several counts of selling and possessing a controlled substance. The New York state judge adopted the restriction because the officer testified that his effectiveness might be compromised if the relatives were able to return to the Brooklyn neighborhood where he worked undercover and reveal his identity to other drug dealers. The officer also testified that he had no reason to believe that Rodriguez’s mother was involved in drug dealing. He said he had never been threatened directly, but had, in the past, learned of other potential threats to his safety by other drug dealers through informants. Rodriguez’s attorney objected to the judge’s proposal to use a screen, and he instructed the defendant’s mother and brother not to attend, telling the judge that the “screen creates a substantial amount of prejudice . . . because the only thing that the jury can conclude is that the screen is being set up so that spectators can’t see the witness and the witness is in danger.” A New York federal court denied Rodriguez’s habeas petition, but the 2d Circuit reversed, instructing the court to examine several issues on remand, including whether it was necessary to exclude Rodriguez’s family members in order to ensure the safety and effectiveness of the undercover officer. Judge Frederic Block of New York’s eastern district denied the petition, finding it necessary to exclude the relatives because they lived in close proximity to the area where the undercover officer was likely to return, “creating a likelihood that either of them would encounter the officer in the course of their daily activities.” The screen was a reasonable “alternative” to closing the courtroom. The 2d Circuit again reversed. Writing on behalf of the panel, Judge Joseph McLaughlin said that “there was no particularized inquiry into whether Rodriguez’s family posed any threat to the Undercover’s safety or effectiveness beyond the conclusory statements of the Undercover.” McLaughlin noted that Rodriguez’s mother lived about 12 blocks from where the undercover officer purchased narcotics from Rodriguez, and that Rodriguez’s brother lived three blocks away from where another purchase was made. “The district court found this evidence compelling,” he said. “We do not. Mere proximity is not enough to establish a threat to the Undercover’s safety or efficacy.” McLaughlin said that the district court relied heavily on the 2d Circuit case Sevencan v. Herbert, 342 F.3d 69 (2003), where the court held that excluding a defendant’s wife from the courtroom was supported by a finding that the wife was likely to encounter the undercover officer in the course of her daily activities and she was familiar with her husband’s associates, “many of whom were highly dangerous.” McLaughlin said that reliance on Sevencan was “misplaced” in the Rodriguez case, because the Sevencan judge’s findings were “not based on general proximity alone.” While the district court credited the undercover detective’s testimony that the Rodriguez family might be able to identify him to people in the neighborhood whom Rodriguez knows, McLaughlin said, “such a naked assertion, without more, does not justify excluding a defendant’s family members.”

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