Andrе Brown was convicted of participating in the kidnapping of Isidro Sanchez, a 21 year-old emigre from the Dominican Republic. Sanchez was held for twelve hours during which he was kept blindfolded and beaten. Before he was rescued by the Emergency Services Unit of the New York City Police Department, ransom telephone demands were made to his family by the kidnappers. Some of these demands were recorded by the police, who had been called by the Sanchez family. Brown was identified by Isidro Sanchez as the principal perpetrator, and Brown’s voice on the recorded conversations was identified by Isidro Sanchez and his brother, Raimundo Sanchez. Andre Brown was not found in the apartment at the time Isidro Sanchez was rescued because he was on the way to meet Raimundo Sanchez to pick up ransom money. Nevertheless, the compelling evidence of Brown’s complicity was corroborated by his stop for a traffic infraction while driving outside the apartment where Sanchez was held captive a .little more than three hours before Sanchez was rescued.
*531
Brоwn offered no evidence on his own behalf — not even one of his friends or family members who were present at the trial — to testify that his was not the voice on the tape recorded telephone conversations with the Sanchez family. The evidence of guilt was thus “unanswered — and unanswerable.”
United States v. Hasting,
After this argument was rejected by the Appellate Division because it was “not preserved for appellate review,”
People v. Brown,
BACKGROUND
Isidro Sanchez, who was born in the Dominican Republic, arrived in New York with his family in 1984 and was a legal resident of the’United States. When he was seventeen years old, Sanchez was involved in two fights and, as a result, was jailed in March of 1989. While in jail, Sanchez became friends with Andre Brown and another man, who was known to, him only as “Dubo.” Sanchez saw Brown every day in prison for about four months, and the two made plans to remain friends after their respective releases. During their prison conversations, Sanchez bragged to Brown that he could get drugs.
In March 1990, after his release from prison, Sanchez was arrested while in possession of a kilogram of cocaine. He was convicted of felony drug possession and sentenced to an indeterminate prison term of one to three years. In March 1991, Sanchez was released from jail. Over the next few months, he met with Brown several times at a bar at the corner of Broadway and 143rd Street in Manhattan. On the night of June 29, 1991, Brown contacted Sanchez and arranged a meeting. At about 11:00 p.m. that night, Sanchez met Brown at the comer of 143rd Street and Broadway and then walked with him along 143rd Street towards Riverside Drive. When the two stopped to talk, Dubo approached Sanchez from behind, held a pistol to his head, and forced him into a car. Sanchez was then handcuffed, blindfolded, warned not to scream or make any noise, and told to get down in the backseat so that no one could see him.
After a forty-five minute ride the kidnappers led Sanchez into an apartment located in the Breukelen Housing Project at 716 East 108th Street, between Glenwood Road and Flatlands Avenue in Brooklyn. There they began making a series of telephone ransom calls to Sanchez’s family demanding money and drugs. Isidro’s brother, Raimun-do Sanchez, his sister, Maria Magdelena Sanchez, and his mother, Dulce Sanchez, were all home that morning and received the first ransom call at about 2:00 a.m. The kidnappers told the family to deliver $15,000 and a kilogrаm of cocaine to a certain location or else Isidro would be killed. The kidnappers made several similar calls to Isidro’s family. During one call, Brown identified himself to Raimundo Sanchez and threatened to kill both Isidro’s girlfriend and Raimundo unless the ransom demands were met. Ultimately, the Sanchez family notified the police. At about 5:40 a.m., Detective Roman Rosario arrived at the Sanchez apartment in Manhattan with tape recording equipment. Subsequent ransom calls were recorded by Detective Rosario, who also *532 spoke with the kidnappers himself, posing as the Sanchez’s Uncle Marco.
Meanwhile, Isidro Sanchez remained handcuffed and blindfolded in the Brooklyn apartment to which he had been taken. After about two hours of captivity, his captors began beating him “[o]n the head, all over” with a metal object that he believed was a pistol. He was also burned with a cigarette lighter about his face and neck, on his torso, and on his legs. Raimundo Sanchez could hear his brother screaming during some of the telephone calls. At approximately 10:00 a.m. on June 30, 1991, an incoming call from thе kidnappers to the Sanchez apartment was traced to 716 East 108th Street, Apartment ID in the Breukelen Housing Project. At about 1:05 p.m., an Emergency Services unit entered that apartment and found Isidro, still handcuffed and blindfolded. The apartment’s four occupants, including one Joshua Simon, were arrested. Brown was not in the apartment when the police entered because he had left to pick up ransom money from Raimundo Sanchez.
The evidence implicating Andre Brown in the kidnapping included Isidro Sanchez’s testimony identifying him as one of the men who had abducted him and then restrained him in the Brooklyn apartment. Isidro Sanchez also identified Brown as one of the kidnappers who spoke to his family on the taped ransom calls. Raimundo Sanchez testified that one of the kidnappers with whom he spoke on the phone identified himself as “Andre.” There was also evidence that a car driven by Brown was stopped by two police officers in the immediate vicinity of the Breu-kelen Housing Project on the morning of June 30, 1991, a little more than three hours before Isidro Sanchez was rescued. Specifically, аt about 9:40 a.m., uniformed police officers, who were patrolling in a marked police ear, observed a vehicle driven by Brown committing a traffic infraction. They ultimately caught up with the car and pulled it over in the parking lot of the Breukelen Housing Project where Isidro Sanchez was being held. One of the passengers in the car was Joshua Simon, who was later arrested at the apartment when Isidro Sanchez was rescued.
After Brown — who identified himself as Sharif Mason — was given a summons, he was allowed to drive away. The manner in which Brown was identified as the driver of the vehicle that was stopped in the parking lot of the Breukelen Housing Project gave rise to the incident involving the courtroom closure. While the identification of Joshua Simon as the passenger was established by an unusual scar on his left cheekbone that he told the officers had been inflicted by a gunshot, the identification of Andre Brown as the driver was somewhat more complicated because neither of the police officers who stopped the car could later identify him. Nevertheless, persuasive documentary evidence established that the name Sharif Mason, which Brown gave when he was stopped, was an alias derived from his middle name, “Sharif,” and his mother’s last name, “Mason.”
Andre Brown’s birth certificate states that his full name is Andre Sharif Brown, that he was born on July 29, 1970, and that his mother’s name was Sandra Mason. Indeed, his mother was listed as .the subscriber of two telephone numbers at 3405 Neptune Avenue in Brooklyn. This was similar to the address on the Social Security card with the name Sharif Mason that Brown produced as his only identification when his car was stopped. 2 Brown had also been arrested twice before, once by Police Officer Shea and once by Police Officer Richard Roe. On both of these occasions he gave information as part of the pedigree process attendant to arrest that also confirmed that he and Sharif Mason were the same person.
Their testimony, however, was censored to eliminate any reference to the fact that Brown had been arrested. Instead, Police Officer Shea identified Brown as a person *533 with whom he had a “conversation” on October 30, 1990, in which Brown told him his name was Sharif Brоwn and that he resided at 3405 Neptune Avenue in Brooklyn. Respondent’s Appendix at 14-15 (hereafter cited as “A._”). Similarly, Police Officer Roe identified Brown as a person with whom he had a “conversation” on June 24, 1990, approximately a year before the kidnapping. In the conversation, petitioner identified himself as Sharif Mason, gave his date of birth as July 29, 1971, and his address as 3405 Neptune Avenue. (A.27-28).
The courtroom was sealed only during Police Officer Roe’s testimony. 3 At the beginning of the afternoon session on the day Officer Roe testified, the prosecutor asked to have the courtroom cleared during the hearing to determine whether to seal the courtroom when Officer Roe testified before the jury. (A.16.) In response to this application, Brown’s counsel objected as follows:
Of course, I would object to the sealing of the courtroom. It’s a public trial. This officer, as I understand it, no longer works in Manhattan. He works in another jurisdiction [Brooklyn]. He has nothing at all to do with the crime of which my client is charged.
(A.16-17).
The trial judge then ruled that the hearing on whether to seal the courtroom was “not part of the trial” and granted the motion to clear the courtroom for the hearing. After the courtroom was cleared for the hearing, the prosecutor placed on the record the basis for his application in some detail. (A.17-18). The prosecutor observed that Officer Roe “is currently engaged as an undercover police officer in the Brooklyn North Narcotic Division.” (A.17). Although he was no longer working in Manhattan as an undercover police officer, “he previously worked [for two weeks] in Manhattan as an undercover officer, and he still has trials which he must attend in Manhattan, which arose out of the arrests he made in Manhattan or cases in which he participated in Manhattan. So, he’s concerned about protecting his identity in this courthouse and in this area, as well as in [sic] part of Brooklyn where he currently works.” (A.18).
When the prosecutor concluded, Brown’s counsel said nothing more than: “I’d object judge.” (A.19). Officer Roe then entered the courtroom and testified about his undercover work in a manner consistent with the offer of proof. Specifically addressing the issue of his safety, Officer Roe gave the following testimony:
Q Does your name and identifying information appear on the New York Police Department roster?
A No, it doesn’t.
Q Why are those steps taken to protect your identity?
A They are taken as safety measures.
Q What is your policy towards testifying in open court?
A Usually have sealed courtrooms.
Q Why is that?
A To protect my identity and also for my safety.
******
THE COURT: And I understand that it was your idea that you should request to have this courtroom sealed?
THE WITNESS: That is correct, sir.
THE COURT: That’s because—
THE WITNESS: My safety, sir.
THE COURT: Your physical safety?
THE WITNESS: That is correct.
(A.21, 24).
After Officer Roe concluded his direct testimony, the trial judge asked Brown’s counsel whether he had any questions. Counsel responded: “No judge. I just have my standing objection.” (A.24). The trial judge then asked whether anyone had “anything to say.” (A.24). Brown’s counsel responded: “I stand on the record judge.” (A.25). The trial judge then gave the following reasons for granting the motion to close the courtroom when Officer Roe testified before the jury:
*534 He’s really an undercover officer. He’s really concerned for his safety, and he did have contact with people involved in this case. And as Mr. Krantz [the Assistant District Attorney] has pointed out, most of the audience, sometimes all of the audience, have been relatives or friends of the defendant, and they, for the most part, I believe, live in Brooklyn, as does the defendant, and that’s the borough where this particular officer is now working. I think a case has been made out that the Court should take some cognizance of the danger and the hazards of his particular specialty within the Police Department ...
(A.25). Brown’s counsel said nothing in response to this statement. After Officer Roe concluded his testimony before the jury, which was then excused for the day, Brown’s counsel returned to the subject in the following colloquy with the judge:
Mr. Smith: For the record, I object to the whole testimony that just came in.
The Court: I understand. On the grounds that it violates the public hearing and public trial aspect of the Constitution.
Mr. Smith: Even [sic] to the last witness in court before the jury. I have my standing objection.
(A.33).
The case was ultimately submitted to the jury on three counts of first degree kidnapping. After deliberating for approximately five-and-a-half hours, the jury found Brown guilty on all three counts. On his direct appeal to the Appellate Division, Brown’s challenge to the courtroom closure was rejected because the issue was “not preserved for review.” The Appellate Division reached this conclusion because “the defendant voiced only general objections to the closure and did not cross-examine the detective or оtherwise challenge the People’s proof that his safety would be endangered by testifying in open court.”
Brown,
Our holding that the courtroom closure here was not error and that, even if it was, habeas corpus relief is not warranted turns in large measure on the significance of the testimony during the closure itself. Specifically, this case did not involve the classic courtroom closure during the testimony of an undercover police officer who was a party to a buy-and-bust drug transaction with the defendant. In such a case, “the prosecution invariably centers around this witness: the undercover officer who purchased the drugs provides the only testimony as tо the defendant’s identity as the seller. The only additional testimony is provided by the arresting officer and, in some cases, a police chemist.”
Ayala v. Speckard,
DISCUSSION
We begin by stating the obvious. The brief courtroom closure here did not affect the fairness of the trial or alter its outcome. Nor can it be said to have seriously undermined the most frequently cited considerations underlying the Public Trial Clause of the Sixth Amendment. The earliest justification offered for the ancient common law practice of holding a public trial was that it tended to improve the quality of testimony. See Max Radin, The Right to a Public Trial, 6 Temple L.Q. 381, 384 (1932) *535 (hereafter “Radin”). According to Wigmore, a public trial has the subjective effect of
produc[ing] in the witness’ mind a disinclination to falsify; first, by stimulating the instinctive responsibility to public opinion, symbolized in the audience, and ready to scorn a demonstrated liar; and next, by inducing the fear of exposure of subsequent falsities through disclosure by informed persons who may chance to be present or to hear of the testimony from others present.
6 Wigmore, Evidence § 1834 at 435-36 (Chadbourn rev.1976). Wigmore continues, “[o]bjectively, it secures the presence of those who by possibility may be able to furnish testimony in chief or to contradict falsifiers and yet may not have been known beforehand to the parties to possess any information.” Id. at 436.
Wigmore’s analysis of the subjective effect of a public trial on a witness’ “disinclination to testify falsely” is not universally shared; nor are we prepared to accept it without supporting empirical evidence. As Max Ra-din has observed: “Hale and Blackstone [upon whom Wigmore relies] can apparently think of no other reason for the publicity than the fact that a witness might be ashamed to say in public what he would be likely enough to say in private. They tell us this makes for truth. How it does is not apparent. Indeed, it might very well lead to the opposite.” Radin at 384. See
United States ex rel. Bruno v. Herold, 408
F.2d
125
(2d Cir.1969),
cert. denied,
In any event, the assumption that a witness would speak more truthfully in public, because of shame or fear of public exposure of a lie, is one that may have had some basis in a different time and place when a courtroom audience comprised members of the community who knew the parties and who may have had firsthand knowledge of the facts. Wigmore himself recognizes that the assumption that a public trial will likely increase the possibility that a person with knowledge will come forward to contradict “falsifiers” is a throwback to “earlier days in England, when attendance at court was a common mode of passing the time for all classes of persons.” Id. (emphasis in original). While Wigmore suggests that such a possibility cannot be ruled out in eases that receive widespread media coverage, this routine case was not thе subject of any media coverage, and it is conceded that, except for a handful of the petitioner’s family and friends, the courtroom was largely empty of spectators during the trial.
Moreover, even if the courtroom had been packed, petitioner enjoyed a greater chance of winning the lottery than of having a transient spectator in the courtroom who would have remembered witnessing the “conversation” with petitioner about which Police Officer Roe testified. Indeed, the likelihood of this taking place is diminished to the point of fantasy by the expurgated nature of Officer Roe’s testimony. Police Officer Roe did not simply remember a “conversation” that he had with petitioner on a public street two- and-a-half years earlier. Rather, Police Officer Roe remembered petitioner because he arrested him on that date and he recollected the conversation with the aid of “the on-line booking sheet, the arrest report and the officer’s memo book relating to the case.” (A.26). Under these circumstances, it is inconceivable that the closure excluded a spectator who could have contradicted the witness.
Similarly unaffected in any significant way is the public confidence in the administration of justice, which is said to be enhanced “when its doors are open to all, litigants and non-litigants alike.”
People v. Jones,
Of course, for the reasons suggested above, it is not surprising that, when it discussed the core value that the Public Trial Clause is now understood to protect, the Supreme Court relegated the foregoing considerations to a footnote.
In re Oliver,
The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty. In the hands of despotic groups each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.
Id.
at 268-70,
This is a consideration that speaks to the corrosive effect that a system of secret trials has on the fair administration of justice. In a system where public trials аre the rule, however, not every improper partial closure implicates this concern.
Cf. Peterson v. Williams,
More significantly, unlike
In re Oliver,
which involved a summary criminal contempt trial held in secret before a “one-man grand jury,” or
Waller v. Georgia,
What happened, then, was that a traditional feature of English trials, more or less accidental, was carried over in to the American systems, and since it was relatively ancient, was treated with the reverence which so many other elements of the common law received, especially from the lawyers of the community. I have called it accidental because it seems almost a necessary incident of jury trials, since the presence of a jury — involving a panel of thirty-six men and more — already insured the presence of a large part of the public. We need scarcely be reminded that the jury was the patria, the “country” and that it was in that capacity and not as judges, that it was summoned.
Id.
at 388.
4
See also In re Oliver,
The Sixth Amendment undeniably confers on a defendant a right to a “public trial, by an impartial jury,” which is violated when members of the public are unjustifiably excluded. Nevertheless, Radin’s discussion of the jury’s role in the evolution of the right to a public trial reminds us that the closure here was partial not only because it involved a few minutes of trial testimоny, the transcript of which was available to the public, but also because it did not wholly exclude representatives of the community. This is not the scenario presented in
In re Oliver
or in the writings of Jeremy Bentham from which Justice Black quoted there.
See
1 Jeremy Bentham, RATIONALE OF JUDICIAL EVIDENCE 524 (1827) (“[SJuppose the proceedings to be completely secret, and the court, on the occasion to consist of no more than a single judge, — that judge will be at once indolent and arbitrary ... ”) (quoted in
In re Oliver,
If we were writing on a clean slate, the foregoing discussion alone could be sufficient to reject petitioner’s request for the disproportionate remedy of a new trial. Prevailing Supreme Court and Second Circuit precedent, however, prevents such a direct disposition. Nevertheless, we have explored in detail the issue whether the closure significantly impaired the values furthered by the public trial guarantee because such a discussion must inform the resolution of the two issues presented by this appeal: (1) whether the closure here violated the Public Trial Clause; and (2) even if it did, whether the violation was of a sufficient magnitude to warrant habeas corpus relief. Against this backdrop, we address them in turn.
A. The Propriety of the Closure 5
The courtroom closure at issue here can be justified by reference to the familiar four-factor test enunciated in
Waller v. Georgia,
(i) Overriding interest that is likely to be prejudiced.
According to the State, the overriding interest that justified closure in this case had two components: the interest in keeping the undercover officer’s identity secret and the interest in preserving his safety. The former interest is not persuasive, because the States’s only articulated ground of concern was that much of the trial’s audience lived in Brooklyn, where the officer worked.
See Vidal v. Williams,
The State’s concern for the officer’s safety had a stronger basis. The officer was the main witness in several cases pending in the Manhattan courts where Brown’s trial was taking place, and the officer was concerned that his safety would be jeopardized if anyone involved in one of those cases were to enter the courtroom while he was testifying against Brown. We have “repeatedly acknowledged the dangerous nature of the drug trade and the genuine need of law enforcement agents to protect themselves from the deadly threat it may pose.”
See United States v. Alexander,
We held in
Ayala v. Speckard, supra,
that under this prong of the
Waller
test the trial court must “require persuasive evidenсe of serious risk to an important interest in ordering any closure.”
Ayala,
(ii) Narrow tailoring of the closure.
The courtroom was closed only for the length of the officer’s brief testimony. The transcript of the proceeding, never sealed, was available to the public. Under these circumstances, the closure was no broader than necessary to protect the State’s interest in ensuring the safety of the undercover officer.
See Ayala,
Brown contends that the closure was overly broad because his family was excluded from the courtroom along with the general public. In
Vidal,
we pointed out that the Supreme Court has demonstrated “a special concern for assuring the attendance of family members of the accused,”
Vidal,
(Hi) Consideration of alternatives to closure. Brown asserts that the trial court’s failure to consider, sua sponte, alternatives to closure of the courtroom during thе officer’s testimony violates Waller. Our reasoning in Ayala forecloses this line of argument. There, we held that closure of the courtroom during the testimony of a single witness is itself a narrower alternative than closure for the duration of the proceeding. The trial judge has no further obligation to “consider alternatives to the alternative,” in the absence of any request from the defendant, id. at 71, and Brown made no such request.
(iv) Findings adequate to support closure.
Before deciding to close the courtroom, the trial judge held a hearing at which he took testimony and allowed each party to present argument. He credited certain testimony and he issued a ruling based upon the record. Specifically, as discussed
supra,
the judge found that the officer “was really concerned for his safety.” While the reasons he gave for concluding that this fear was objectively reasonable were neither entirely accurate nor particularly compelling, the strength of the judge’s findings must be evaluated by reference to the very limited scope of the closure that they support; by that standard, the trial court’s findings were adequate.
Cf. Woods v. Kuhlmann,
B. The Propriety of the Remedy
Even if the courtroom should not have been closed during the testimony of Officer Roe, it is unnecessary to set aside the conviction here. In Waller, where an entire suppression hearing was closed to the public, the Supreme Court ordered a new suppression hearing on direct appeal. Justice Powell gave the following explanation for the holding that the defendant should not be required to prove specific prejudice in order to obtain relief:
While the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance, the Framers plainly thought them nonetheless real. See also State v. Sheppard, 182 Conn. 412, 418,438 A.2d 125 , 128 (1980) (“Because demonstration of prejudice in this kind of case is a practical impossibility, prejudice must necessarily be implied.”); People v. Jones, 47 N.Y.2d 409, 416,418 N.Y.S.2d 359 , 364,391 N.E.2d 1335 , 1340 (1979) (“The harmless error rule is no way to gauge the great, though intangible, societal loss that flows” from closing courthouse doors).
Waller,
This explanation suggests that the purpose of reversing a conviction for a partial closure of a trial is not to correсt an error that may have caused any real harm to the defendant or that posed any risk of an unreliable outcome. Instead, the remedy of reversal is a procedural device to ensure that “the benefits of a public trial,” although “frequently intangible, difficult to prove, or a matter of chance,” are not lightly disregarded. As Judge Walker recently observed in a case that held that the public was improperly excluded from the rendition of the verdict, “if we were to hold that the error was not structural and thus subject to harmless error analysis, it would almost always be held to be harmless. In this way, the right would become a right in name only since its denial would be without consequence.”
United States v. Canady,
Canady
was a case tried without a jury. The trial judge’s decision and order were mailed to the defendant. The remedy ordered in that case was a remand to the district court for a public pronouncement of its decision. This was a harmless remedy— one which “may be viewed by some as an unnecessary formality.”
Canady,
The fact that this ease involves an error that has been described as “structural” — at least where closure was complete — is not consequential. That term was used in
Arizona v. Fulminante,
In
Yarborough v. Keane,
While the issue in Yarborough involved the exclusion of a defendant from part of his own trial, it posed the following hypothetical in support of its analysis:
Fulminante notes, for example, that the exclusion of the public, without justification, from the entirety of a crucial seven-day suppression hearing is structural error. See Fulminante,499 U.S. at 310 ,111 S.Ct. at 1265 (citing Waller v. Georgia,467 U.S. 39 , 49 n. 9,104 S.Ct. 2210 , 2217 n. 9,81 L.Ed.2d 31 (1984)). It does not necessarily follow, however, that the Supreme Court would find structural error and automatically vacate a conviction if the judge granted a motion to close the courtroom for a hearing, took a few minutes of innocuous introductory tеstimony, and then reconsidered, reversed the ruling and reopened the hearing to the public. Cf. Peterson v. Williams,85 F.3d 39 (2d Cir.) (brief and inadvertent continuation of proper courtroom closure, not noticed by any of the trial participants, although not permitted by law did not rise to the level of a constitutional violation), cert. denied, — U.S. -,117 S.Ct. 202 ,136 L.Ed.2d 138 (1996).
In
Peterson v. Williams, supra,
which is cited in
Yarborough,
we affirmed the denial of the writ in a case where the courtroom inadvertently remained sealed during the testimony of the defendant (after an undercover officer had testified). Specifically, we held that “where the closure was 1) extremely short, 2) followed by a helpful summation, and 3) entirely inadvertent,” it was sufficiently trivial that “the defendant’s Sixth Amendment rights were not breached.”
Pederson,
There is some tension between the analysis in
Yarborough
and the analysis in
Peterson. See
John M. Walker,
Harmless Error Review in the Second Circuit,
63 Brooklyn L.R. 395, 401 — 404 (1997).
Yarborough
holds that the traditional harmless error test would be applied to violations of the Sixth Amendment that were not substantial enough to be considered “structural.”
Yarborough,
Where a defendant has been represented by counsel, he can obtain relief on the basis of the inadequate assistance of counsel only by demonstrating “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington,
Because we are satisfied that the result here is the same under either approach, we do not choose between Yarborough or Peterson. See Walker, supra, at 403 (“[I]t may be that the differences in analytical approaches between the two cases are insignificant in terms of the ultimate outcome.”). Indeed, in one respect this case provides an even more compelling basis than Peterson for concluding that “the defendant’s Sixth Amendment rights were not breached.” The closure in Peterson took place during the testimony of the defendant — one of the most significant trial witnesses. By contrast, the closure here took place during testimony which — if not innocuous — was clearly cumulative on the collateral issue for which it was offered. Petitioner’s counsel himself described the subject matter of Officer Roe’s testimony as “collateral,” (Trial Tr. 98), and we are convinced by any standard that the result would have been the same had Roe not testified.
Peterson
did observe that the closure was mitigated by the fact that the defendant’s testimony was subsequently recounted in full during summation.
Peterson,
Of course, the closing in
Peterson
was inadvertent. Here it was the consequence of a conscious ruling by the trial judge. It is unclear from the analysis in
Peterson
whether this fact would alter the conclusion that “no Sixth Amendment violation occurred.”
Peterson,
The prosecutor here was faced with a witness who, quite understandably, did not wish to compromise his safety in the slightest degree, and he accommodated this concern by moving to have the testimony taken in a sealed courtroom. The record shows that, when he failed to dissuade the trial judge from sealing the courtroom during the closure hearing, petitioner’s counsel took a passive posture for the remainder of the hearing.
6
After Officer Roe testified at the
*542
hearing, petitioner’s counsel passed when asked if he had any questions, and he likewise declined the opportunity he was offered to make any further argument. Petitioner’s counsel also neglected to draw the trial judge’s attention to the burden that the prosecution was required to meet to justify closure under New York law, much less under
Waller v. Georgia,
or suggest why the standard was not met here. Indeed, while petitioner’s argument here focuses principally on the exclusion of his family from the courtroom, relying heavily on
Vidal v. Williams, supra, see
Petitioner’s Brief at 15-17, petitioner’s counsel failed to make any offer of proof аs to who was in the audience, nor did he make a specific request — as the defendant did in
Vidal
— that certain members of his family be allowed to remain.
See Vidal,
Counsel’s passivity stands in stark contrast to the reasoned and persuasive objections he made in an extended argument over several days regarding the subject matter of Police Officer Roe’s testimony and the related evidence regarding petitioner’s use of the alias “Sharif Mason,” which petitioner’s counsel understood was not helpful to him and which involved the kind of discretionary ruling that would not likely be reversed on appeal. (Trial Tr. 95-104, 197-202, 372-74, 484-86). Indeed, the argument was successful to the extent that it eliminated any references to the fact that Officers Shea and Roe arrested petitioner.
The failure of petitioner’s counsel to make a comparable effort to dissuade the trial judge from closing the courtroom detracts from the need to set aside the conviction in order to deter violations of the Public Trial Clause. Just as reversal without prejudice serves no purpose where the closure is inadvertent, it likewise serves little purpose when the defendant makes no more than a perfunctory effort to prevent the closure. On the contrary, to the extent that a public trial serves the broader “public[ ] interest in fair trials designed to end in just judgments,”
Wade v. Hunter,
We reiterate here that we assume that petitioner’s claim was properly preserved for review by the Appellate Division and that it therefore does not involve a procedural forfeiture of the kind аt issue in
Wainwright v. Sykes,
Unlike Reed, the present case involves a violation of the Constitution, rather than a law of the United States. The violation alleged here and the violation in Reed, however, share one critical similarity. In each case the error did not affect the outcome or fairness of the trial or in any way threaten the conviction of an innocent person. When such “harmless errors” are involved, a defendant has an incentive to engage in the kind of sophisticated sandbagging .that may have taken place here, knowing that if the objection is overruled, he suffers no harm and gains the opportunity to have a guilty verdict upset. Such conduct undermines the need for the writ.
This is not the only consideration mitigating against the issuance of the writ here. The need for the writ as a remedy to deter state courts from violating the Constitution is most compelling where — notwithstanding the absence of prejudice — there is a real possibility “that state courts might be hostile to the federal law ... at stake.”
Reed v. Farley,
Petitioner argues here that requiring a State to retry a defendant, sometimes years later, imposes on it an unduly harsh penalty for a constitutional defect bearing no relation to the fundamental fairness of the trial. Yet intentional discrimination in the selection of grand jurors is a grave constitutional trespass, possible only under color of state authority, and wholly within the power of the State to prevent. Thus, the remedy we have embraced for over a century — the only effective remedy for this violation — is not disproportionate to the evil that it seeks to deter.
Id.
at 262,
New York does not evince any kind of hostility to a defendant’s right to a public trial. On the contrary, New York law guarantees a defendant a public trial, N.Y. Civ. Rights Law § 12 (McKinney 1992) (guaranteeing right to a public trial in state bill of rights); N.Y. Jud. Law § 4 (McKinney 1983) (requiring that all judicial proceedings be public except in limited circumstances), and the New York appellate courts have been particularly vigilant in correcting errors involving partial courtroom closures. Indeed, the number of New York cases reversing convictions for erroneous partial closures is so great that we annex those citations as an appendix rather than include them as a footnote. One of these cases, however,
People v. Rodriguez,
The Appellate Division there reversed a conviction because of a courtroom closure where the same undercover officer who testified here gave essentially the same testimony he gave here in support of a closure applica
*544
tion.
7
The testimony was given in one of the undercover buys in which he engaged during his two weeks of undercovеr work in Manhattan. In reversing the conviction, the Appellate Division wrote that “[t]he record ... does not support either a finding that the witness continued to be involved in undercover work in the community [in which the case arose] or that an ongoing investigation would have been compromised if the undercover officer had testified in open court.”
Rodriguez,
In
Reed v. Farley,
the Supreme Court responded to an argument that the denial of habeas corpus relief would undermine compliance with the Interstate Agreement on Detainers (“IAD”) because state courts “might be hostile to ... federal law.”
Reed,
On the other hand, granting the writ here has its costs. As Judge Newman wrote in
Ayala v. Speckard,
although “the right of the public and the press to attend a criminal proceeding absent circumstances justifying closure is of undoubted importance, the reversal of a criminal conviction for a trial judge’s failure to consider an alternative not requested by a defendant is arguably too high a price to pay to protect that right.”
Ayala,
CONCLUSION
The old maxim “de minimis non curat lex ” could by itself provide a sufficient basis to resolve this appeal. The need we have felt to say more should not obscure the central fact that provides a single frame for both prongs of our holding, namely, that this case involves a courtroom closure that was not substantial enough to undermine the values furthered by the public trial guarantee. Accordingly, the judgment of the district court is vacated and the case is remanded to the district court for the purpose of dismissing the petition.
APPENDIX
Over the past decade alone, New York appellate courts have reversed convictions on the basis of violations of the Public Trial Clause in no fewer than fifty cases, including at least eight Court of Appeals cases. In
*545
deed, most of these instances involved the testimony of undercover agents, as was the case here.
See People v. Nieves,
Notes
. Police Officer Knight testified that the address on Brown's social security card was listed as 3504 Neptune Avenue, rather than the 3405 Neptune Avenue address at which the telephone linеs were registered in the name of petitioner's mother. The similarity in the digits of the address suggests that any discrepancy results from either a transcription error or an effort by Andre Brown to give a false address when pulled over. No issue was made of this discrepancy in the defense summation.
. When he testified at the closure hearing and before the jury, Officer Roe was identified only by his badge number. Rather than identify him by badge number or by his true name, we use this pseudonym here.
. Radin's reference to a jury "involving a panel of thirty-six men and more" appears to speak to the period when the trial jury was composed of members of the grand jury that presented the charge and of jurors who were added for the purpose of trial. 1 W.S. Holdsworth, A HISTORY OF ENGLISH LAW 325 (3d ed.I922). "The process by which twelve came to be the usual number of the jury was very gradual.... ” Id. at 325 n. 2.
. Judge Jacobs would decide this case solely on the ground stated in this section, and would not reach Part B of the Discussion.
. Petitioner offered two anemic arguments in opposition to the prosecutor’s request for sealing the closure hearing itself, i.e., that Officer Roe "no longer works in Manhattan[, h]e works in *542 аnother jurisdiction [Brooklyn]” and that "he has nothing at all to do with the crime of which my client is charged.” (A.16-17). Neither of these arguments had any bearing on the issue whether Officer Roe’s safety or identity would be compromised by testifying in a drug-related trial, in a courthouse in which he still expected to testify in undercover cases.
. Petitioner relied on the Rodriguez case on his direct appeal and alleged that it involved the same undercover officer whom he identified by name. (A.97). The description of his work is the same as that of the undercover officer here, and the District Attorney did not take issue with this fact.
. The same considerations move us to exercise our "considerable discretion” to address the propriety of the remedy even though it was argued for the first time on appeal.
In re McLean Indus., Inc.,