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Judges should oversee security precautions at courthouses that might limit access to public proceedings, the 2nd U.S. Circuit Court of Appeals has cautioned. While the circuit easily disposed of a challenge by a defendant who claimed that security screening at a Western District building could have violated his right to a public trial, the circuit said judges should coordinate with the U.S. Marshals Service to ensure the right of public access is not compromised. The decision was written by Judge Barrington D. Parker and joined by Judges Ralph Winter and Sonia Sotomayor. In United States v. Smith, 03-1588, Wendell Smith claimed that his First and Sixth amendment public trial rights in a proceeding before Judge Charles Siragusa were violated by a requirement that all visitors to a federal building containing courtrooms were required to show photo identification. The requirement at the Kenneth B. Keating Federal Building Complex in Rochester, N.Y., which has courtrooms and other non-judicial government facilities, was imposed during a period of heightened security concerns by the Department of Homeland Security. Smith was arrested in June 2002 and charged with one count of possession of a firearm and ammunition by a convicted felon under 18 U.S.C. �922(g)(1). He was convicted before Siragusa following a three-day trial and sentenced to serve 3 years and 10 months in prison. On the third day of trial, he moved for a mistrial based on a measure imposed during a security alert announced by the Department of Homeland Security in February 2003. Under the directive, all visitors were required to show photo identification before passing through one of the building’s magnetometers. His complaint to Siragusa, while termed “vague” by the circuit, claimed that some members of the Smith family, members of counsel’s investigative staff and members of the public had been prevented from attending his trial because of the identification policy. Siragusa took testimony from Marshal Peter Lawrence, who said the photo identification policy was actually put into effect after Sept.11, 2001 — and the policy dictated that photo IDs were required when the federal government raised the terror alert level to three (yellow) or four (orange.) Because the yellow alert was in place during Smith’s trial, the marshal said, all visitors where required to show ID and sign-in before entering the building. Siragusa denied the motion for a mistrial, finding the policy was a matter of “common sense,” it was not applied in a discriminatory manner, and, where the court itself did not restrict trial access, the Sixth Amendment right to a public trial was not implicated. RIGHT TO PUBLIC TRIAL On the appeal, Parker said the policy passed muster under the U.S. Supreme Court’s analysis for public trial access in Waller v. Georgia, 467 U.S. 39 (1984). Nonetheless, he wrote, “We believe the district court erred in assuming that a defendant’s Sixth Amendment rights cannot be violated unless a court itself restricts courtroom access.” He said, “First, although cases involving the right to a public trial commonly arise in the context of courts entering formal closure orders, we believe that measures that limit the public’s access to federal buildings where public trials may be occurring implicate Sixth Amendment concerns.” He continued, “Second, even if the district court did not itself initially enact the screening procedures … the district court, not the Marshals Service, controlled access to the courtrooms and ultimately ratified the screening proceeding by concluding that they were constitutionally permissible.” Third, Parker said, regardless of who enacts the restrictions, the real question is “whether those restrictions implicate the values that the Sixth Amendment’s public trial guarantee aims to protect.” With the Sixth Amendment claim disposed of, the court said it need not decide the First Amendment question. COURT CONTROL ‘ESSENTIAL’ But Parker went on to “note our concerns about unilateral steps, even commonsensical and fully justified ones — by the executive branch that restrict court access.” He said, “Going forward, we emphasize that any such steps must be coordinated with, and approved by the courts. While the Marshals Service and Secretary of DHS are charged by Congress with protecting the federal courts … the Supreme Court has made clear that ‘courtroom and courthouse premises are subject to the control of the court.’” Control by the courts is “essential,” he said, “because the judiciary is uniquely attuned to the delicate balance between defendants’ Sixth Amendment rights to public trial, the public and press’ First Amendment rights to courtroom access, and the overarching security considerations that are unique to federal facilities containing courtrooms.” The circuit, he said, was expecting the Marshals Service to consult with the courts “before implementing general security measures that significantly affect courtroom access,” and those restrictions should be approved by the court security committees in each district. Lawrence L. Kasperek of Rochester represented Smith. Assistant U.S. Attorney Bradley E. Tyler represented the government.

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