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A federal appeals court has clarified the circumstances under which a judge can constitutionally close a courtroom to a criminal defendant’s family. The 2nd U.S. Circuit Court of Appeals decided earlier this week that state trial courts can exclude a family member from a proceeding as long as the court considers the relationship before closing the courtroom. The 1993 trial in question involved testimony from an active undercover police officer in a drug crime. Brooklyn, N.Y., Supreme Court Justice Edward M. Rappaport ordered the courtroom closed to the public to protect the officer’s identity and would not allow the defendant’s wife to enter. In its ruling, the 2nd Circuit said that “where the record reflects that the state trial court was aware of the familial relationship, it necessarily includes an implicit or explicit finding that the court considered the familial relationship.” The ruling in Sevencan v. Herbert, 01-2491, which affirmed the decision of a federal judge but on different grounds, clarifies the duty of judges under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. �2254, and under the court’s holding in Yung v. Walker, 296 F.3d 129 (2002). Though all three judges agreed on the outcome, one, Judge Rosemary S. Pooler, described the majority’s reasoning as unnecessarily broad and in conflict with other 2nd Circuit opinions. “While an evidentiary showing that justifies exclusion of the general public may justify exclusion of family members in some cases, it will not always do so,” Pooler wrote in a concurring opinion. Salih Sevencan was convicted on drug charges predominantly on the testimony of an undercover officer. Three days into his trial, when the officer was scheduled to testify, Sevencan’s wife attempted to attend. Mr. Sevencan’s attorney sought an exception to Justice Rappaport’s order closing the courtroom, saying Mrs. Sevencan had difficulty finding time to attend because of her job. But when the prosecution said it opposed the exception, the judge denied the request. A panel of New York’s Appellate Division, 2nd Department, affirmed Justice Rappaport’s ruling and the New York Court of Appeals declined to hear the case. Sevencan then filed a habeas petition in federal court in the Eastern District of New York. Judge Allyne R. Ross also rejected his request, largely relying on the 2nd Circuit’s 1994 ruling in Vidal v. Williams, 31 F.3d 67, which expressed the idea that courts should pay close attention to the exclusion of family members. Though the 2nd Circuit agreed with Judge Ross’s ruling, it said the judge should not have relied on Vidal, which does not comport with the 1996 Death Penalty Act’s standard of “clearly established” U.S. Supreme Court law. SPECIAL CONSIDERATION Instead, the court said, Judge Ross should have followed the 2nd Circuit’s ruling in Yung, which recognizes that the Supreme Court has not expressly held that family members deserve special consideration and requires an analysis under the highest court’s rulings in Waller v. Georgia, 467 U.S. 39 (1984), and In re Oliver, 333 U.S. 257 (1948). “The only ‘clearly established’ law within the meaning of 28 U.S.C. �2254(d)(1) relevant to this case, then, is Waller‘s four-factor test for closures generally,” wrote Justice Jos� A. Cabranes. The four factors of Waller are as follows: (1) the prosecutor advanced an “overriding interest” that was “likely to be prejudiced” by a public hearing; (2) the closure was “no broader than necessary to protect that interest”; (3) the trial court considered reasonable alternatives posed by the defense; and (4) the trial court made “findings adequate to support the closure.” In her concurring opinion, Judge Pooler said the majority’s ruling “decides issues well beyond the scope of the record,” and “distorts” the court’s ruling in Yung, which held that it would be “an unreasonable interpretation of Waller, or at a minimum, an unreasonable failure to extend Waller, not to require a heightened showing before excluding family members.” She added: “The majority’s analysis will lead ineluctably to the exclusion of an accused’s closest family members, those who are most likely to offer the accused support at trial, even where those family members pose no threat to the interest advanced to support closure. This, I believe, is an unreasonable interpretation of Waller, which requires weighing the extent of any closure against the overriding interest at stake.” Judge Roger J. Miner joined in Cabranes’ opinion. Georgia J. Hinde represented Sevencan. Phyllis Mintz of the Brooklyn district attorney’s office represented the prosecution.

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