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The practice of closing New York state’s courtrooms for the testimony of undercover narcotics officers drew the full attention of the 2nd U.S. Circuit Court of Appeals Wednesday. For the first time in two years, the court sat en banc to hear arguments and question lawyers, this time in Brown v. Andrews, 98-2717, a challenge to the standards under which courtrooms can be closed to enhance the effectiveness and safety of undercover officers. The issue stems from the 1990 conviction of Rose Ann Brown for selling a $10 bag of crack cocaine to an undercover officer. She seeks to vacate her conviction on appeal. Brown was appealing from the denial of her habeas corpus petition by Southern District Judge Loretta A. Preska in 1998. Preska was unpersuaded by the recommendation of Magistrate Judge Andrew Peck, who agreed with Brown that her Sixth Amendment right to a public trial was violated by the closing of the courtroom for the testimony of undercover officer Tony Fisher. A three-judge panel at the 2nd Circuit reversed Preska in June, 1999, finding that the state “did not offer a sufficient justification to close Brown’s trial to the public.” The 2nd Circuit then granted leave for rehearing en banc, in which all of the circuit’s 13 active judges review a particularly important or controversial ruling made by one of its three-judge panels. Unlike some other federal appeals courts, the 2nd Circuit rarely holds such re-hearings. After holding three in 1998, it held none last year. Wednesday, 11 appellate judges gathered in the ninth floor ceremonial courtroom to question lawyers for Brown and the Solicitor General’s office. Only Judges Chester J. Straub and Dennis G. Jacobs were absent. Representing Brown, Joseph M. Nursey of the Office of the Appellate Defender said that New York’s standards for closing the courtroom were far too lenient in light of the precedents of both the U.S. Supreme Court and the 2nd Circuit. Nursey said that courts in New York, concerned about the safety of undercover narcotics officers, require only a showing that the officer still works in a specific area, such as the Borough of Manhattan, and that the officer still has pending cases or investigations. He said the trial court in Brown’s case, and for that matter just about all trial courts, are ignoring their obligation to show that there is a “substantial probability of harm” to the officer if the courtroom remains open. For this, he cited the Supreme Court’s decision in Waller v. Georgia, 467 U.S. 39 (1984), in which the Court said that to overcome the presumption of an open proceeding, the party seeking closure must state that there is a “substantial probability” that an “overriding interest” will be prejudiced. And Nursey cited the 2nd Circuit’s decision, also en banc, in Ayala v. Speckard, 131 F3d 62 (1997), which, he said, dealt with issues similar to those in the Brown case, and is now being used to justify wholesale closure of courtrooms in New York State. He also said that the record nationwide and in New York has failed to show that the safety of undercover officers has been endangered when courtrooms have remained open. Judge Sonia Sotomayor immediately asked Nursey if he was arguing that “we have to wait until an undercover officer is killed” before courts find the substantial probability of a threat to an officer’s life by open testimony. Nursey responded that there has to be more than a cursory statement that the officer’s life or his effectiveness may be in jeopardy, he concluded. Wednesday, Judge Guido Calabresi, who wrote the three-judge panel opinion in Brown in 1999, asked Nursey if he was asking the court to go beyond previous precedents and broaden the requirements for state courts to close trial testimony to the public. Nursey said the entire appeals court should adopt the decision made by the three-judge panel. He said further that the court should re-examine the standard and rule that its previous decision in Ayala was too restrictive. Judge Pierre N. Leval wanted to know whether the 2nd Circuit was not obligated to grant deference to a state court’s finding that there was a significant threat to the safety of an officer unless that finding was “patently unreasonable.” Nursey responded that there was no disagreement that officer safety was an overriding interest, only that such a threat must be adequately proven at a closure hearing. When Leval pressed him to answer the question, Nursey said “this court should not give deference when that legal conclusion is not supported under the Waller standard.” Calabresi repeatedly asked both Nursey and Solicitor General Preeta D. Bansal if there was any evidence in the Brown case, or whether there should be an effort made in any other case, to show that the officer took steps to conceal his identity. Chief Judge Ralph K. Winter asked if Nursey really meant to argue that in order to close a courtroom, there has to be some evidence that someone will enter the courtroom and identify the officer. Despite the attention given to officer safety, the judge noted that an important part of the argument is that a drug dealer’s ability to identify an undercover officer “will thoroughly impair the officer’s mission.” But Nursey said that in this case, there was no substantive showing “that testifying in an open courtroom creates a substantial probability his cover will be blown.” Bansal opened by noting that the “state has no interest in defending a per se rule of courtroom closure.” In response to a question by Sotomayor about the justification for closure in Brown’s case, Bansal said that Officer Fisher claimed he had between 100 to 150 pending investigations, and that he often received threats. The judges also wanted to know whether it was the advocate’s position that the law had changed substantively since Brown’s conviction, and whether the defendant should be allowed to invoke that change in the law retroactively. “It is important not to grant the defendant a windfall,” Bansal said. Other questions focused on whether the district court, on possible remand, has discretion, or must be directed, to hold a hearing. The appeals court took the matter under submission and did not rule immediately in the case.

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