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A convicted drug dealer whose family was excluded from the courtroom during the testimony of an undercover officer must be given a new trial or be released from custody, a federal judge with the U.S. District Court for the Southern District of New York has ruled. In the latest case involving the growing controversy over closing courtrooms, U.S. District Judge Robert W. Sweet took the rare step of granting a petition for a writ of habeas corpus to Hoi Man Yung, who is serving a prison term of 50 years-to-life for dealing drugs on the Lower East Side. Sweet, in Yung v. Walker, 00 Civ. 1263, said the decision of New York County Supreme Court Justice Ronald Zweibel to eject Yung’s family from the courtroom out of concern for the safety or effectiveness of the undercover officer was a violation of Yung’s right to a public trial as guaranteed by the Sixth Amendment. Yung was represented on his petition by the Legal Aid Society, which has in the last few years mounted repeated challenges to what its lawyers say is a de facto rule in New York State that courtrooms will be closed for the testimony of undercover police officers. Case law generally allows judges to close courtrooms if one of two criteria are met: either that the effectiveness of the undercover officer would be compromised by having his or her identity revealed at trial, or that the safety of the officer would be jeopardized. At Yung’s trial in 1994, Justice Zweibel found that both criteria were present. He ordered members of Yung’s family out of the courtroom after being persuaded that the undercover officer who helped arrest Yung had pending drug cases in the same Lower East Side neighborhood where Yung was arrested, and that the officer was continuing to work in the area. Zweibel was also convinced by the officer’s claim that disclosure of his identity would compromise his safety. But Judge Sweet said that the officer’s concerns for his safety resulted from a “single threat nine months earlier from a person not related to Yung and who was on trial during Yung’s trial.” The officer, Sweet said, “testified only to a generalized fear that his identity would be disclosed,” if the courtroom remained open. The 2nd U.S. Circuit Court of Appeals, in Ayala v. Speckard, 131 F3d 62 (1997), upheld the exclusion of the general public from a courtroom, finding that “there is no requirement that the prosecution must prove that particular individuals likely to attend the trial will disclose the officer’s identity.” FAMILY TIES But in another case, Judge Sweet said, the 2nd Circuit made clear that the standard for closing the courtroom is tougher when the defendant asks that family members be allowed to remain for the testimony of the officer. In Vidal v. Williams, 31 F3d 67 (1994), he said, the 2nd Circuit stated that a “heightened nexus” must exist between the officer’s testimony and the likelihood of prejudice to the officer’s status or safety where a court excludes family members from the courtroom. Here, Sweet said, “there was no evidence that Yung’s family members lived on the Lower East Side or were likely to encounter the officer during an undercover operation.” Moreover, there was no evidence that family members presented a danger to the officer, Sweet said, and Zweibel “did not require a sufficiently narrow nexus between the fear and the individual family members who were ejected from the trial.” M. Sue Wycoff of the Legal Aid Society’s Criminal Appeals Bureau represented Yung. Assistant Attorney General Tiffany M. Foo represented the State.

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