Downs v. Lape
657 F.3d 97
2d Cir.2011Background
- Downs, indicted for robbery and related offenses, challenged a state-court trial closure when his 12-year-old brother was removed from the courtroom.
- Trial occurred in New York state court; the transformation occurred at start of the second day, after jury selection, prior to opening statements.
- There is no transcript of the off-the-record conference; only a record of counsel’s after-the-fact remarks in open court.
- Downs was convicted after a six-day trial and appealed, arguing public-trial violation due to unsupported exclusion of Clarke without Waller findings.
- Appellate Division held Downs’s Sixth Amendment claim unpreserved under New York’s contemporaneous objection rule § 470.05(2), and the New York Court of Appeals denied leave to appeal.
- District Court denied habeas relief, finding the state record sparse but adequate to conclude non-preservation; certificate of appealability issued.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Downs preserved the public-trial claim under New York’s contemporaneous objection rule | Downs’s counsel stated the issue “for the record” and identified the family member, satisfying § 470.05(2) | Appellate Division correctly held no preservation due to lack of explicit objection | No, not preserved under the independent state-ground rule as applied by the Appellate Division |
| Whether the Appellate Division’s application of § 470.05(2) was an exorbitant misapplication of state law | Rule’s application was excessive and not consistently followed; counsel’s conduct satisfied preserve. | Rule is firmly established and regularly followed; preservation required stricter form | No, Appellate Division’s ruling not an exorbitant misapplication; it falls within normal administrative discretion |
| Whether the district court and this court should address the federal merits given the sparse trial record | Record ambiguity should not bar review of substantial constitutional rights | State-record limitations justify limiting review to preservation question | We decline to reach the merits; dispositive issue is preservation under state law |
Key Cases Cited
- Waller v. Georgia, 467 U.S. 39 (U.S. 1984) (Sixth Amendment requires specific findings to justify closing a courtroom)
- Lee v. Kemna, 534 U.S. 362 (U.S. 2002) (Governs the notion of exorbitant application of state procedural rules)
- Presley v. Georgia, 130 S. Ct. 721 (U.S. 2010) (Court noted independent duty to justify closures but not resolving preservation when no objection was raised)
- Garcia v. Lewis, 188 F.3d 71 (2d Cir. 1999) (Adequacy of state rule in some contexts; not all failures trigger federal review)
- Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003) (Three-guidepost framework for evaluating exorbitant application of state rules)