GIGI JORDAN, Petitioner-Appellee, v. AMY LAMANNA, in her official capacity as Superintendent of the Bedford Hills Correctional Facility, Respondent-Appellant.
Docket No. 20-3317-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
May 5, 2022
August Term, 2021 (Argued: September 28, 2021)
The respondent-appellant Amy Lamanna, in her official capacity as Superintendent of the Bedford Hills Correctional Facility, appeals from an order granting a writ of habeas corpus to the petitioner-appellee Gigi Jordan. Jordan was convicted of manslaughter in New York State Supreme Court for administering a fatal dose of prescription medication to her eight-year-old son. In the midst of the highly publicized trial, the courtroom was closed to all spectators for approximately fifteen minutes, during which the prosecutor addressed a website and an email detailing complaints by Jordan that her trial was unfair. Jordan moved to set aside her conviction on the ground that her Sixth Amendment right to a public trial had been violated. The New York Appellate Division rejected her claim; the New York Court of Appeals declined to hear an appeal from that decision, and the United States Supreme Court denied her petition for a writ of certiorari. The United States District Court for the Southern District of New York (Sarah L. Cave, M.J.), on a petition for a writ of habeas corpus, concluded that the Appellate Division had unreasonably applied clearly established federal law in holding that there was no Sixth Amendment violation. The district court granted Jordan‘s petition and ordered a
REVERSE the judgment of the district court, and REMAND with instructions for the court to deny the petition for a writ of habeas corpus.
MICHAEL B. KIMBERLY, McDermott Will & Emery LLP, Washington, DC (Norman H. Siegel, Siegel Teitelbaum & Evans, LLP, New York, NY; Earl S. Ward, Emery Celli Brinckerhoff Abady Ward & Maazel LLP, New York, NY, on the brief), for Petitioner-Appellee;
VINCENT RIVELLESE (Christopher P. Marinelli, on the brief), for Cyrus R. Vance, District Attorney of New York County, New York, NY, for Respondent-Appellant.
SACK, Circuit Judge:
Petitioner-appellee Gigi Jordan was tried and convicted in New York State Supreme Court for administering a fatal dose of prescription medication to her eight-year-old son. After several weeks of what became a nine-week trial, the presiding justice closed the courtroom to all spectators, at the State‘s request, for approximately fifteen minutes. During the closure, the State brought to the court‘s attention a website titled “The Inadmissible Truth,” which alleged that the court had wrongly excluded evidence from the trial, and an email from Jordan
Jordan moved to set aside her conviction, alleging a violation of her Sixth Amendment right to a public trial. The trial court denied the motion. On direct review, the Appellate Division, First Department, rejected the claim and affirmed her conviction. The New York Court of Appeals declined to hear the case, and the United States Supreme Court denied a petition for a writ of certiorari. Jordan then petitioned for a writ of habeas corpus in the United States District Court for the Southern District of New York.
Magistrate Judge Sarah L. Cave, sitting as the district court by consent of the parties pursuant to
BACKGROUND
Factual Background
On the evening of February 3, 2010, Gigi Jordan, a pharmaceutical company executive who lived near Columbus Circle in Midtown Manhattan, took her eight-year-old son, Jude Mirra, to a room in the Peninsula Hotel at the corner of 55th Street and Fifth Avenue in New York. Sometime during the next day-and-a-half, Jordan administered a fatal dose of prescription medication to her son. She also ingested multiple medications herself, then emailed her aunt to tell her what she had done. On the morning of February 5, 2010, Jordan‘s aunt contacted law enforcement. The police went to the hotel, where they found Jude‘s lifeless body on the bed and Jordan lying awake on the floor.
A. Indictment and Trial
On February 8, 2010, a New York Grand Jury charged Jordan with murder in the second degree under
Jordan asserted an affirmative defense of extreme emotional distress. Under New York law, the defense allows a person who has committed intentional murder to be convicted of first-degree manslaughter instead if she can establish, by a preponderance of the evidence, that she acted under the influence of an extreme emotional disturbance.
Jordan‘s trial lasted approximately nine weeks, unsurprisingly garnering significant media attention. On November 5, 2014, after deliberating for several days, the jury accepted Jordan‘s affirmative defense and convicted her of manslaughter in the first degree.
B. Closed Proceeding
The closed proceeding at issue took place on the morning of October 1, 2014, about one month into Jordan‘s trial (the “Closed Proceeding“). Before the jury was brought into the courtroom, and after an unrecorded sidebar with the prosecutor, Justice Solomon asked all spectators to leave “for about five minutes, about something that has to be done in private.” JA.18. Jordan and her counsel remained in the courtroom, but all of the spectators left, the courtroom door was closed, and an officer was posted outside the door.
The court then explained that “[the prosecutor] wants to make a record about something that he didn‘t want to put on the record in front of the audience or the press,” about “a very serious problem concerning Ms. Jordan.” JA.19, 20. Defense counsel objected to the closure of the courtroom; the objection was overruled.
The State proceeded to bring to the court‘s attention a website called “The Inadmissible Truth,” which had been posted on the internet the night before. The site included links to several articles, all of which accused the court of undermining the fairness of the trial by refusing to admit certain evidence. The State also gave the court a copy of an email that Jordan had sent to more than one
For more than four and a half years, I have awaited trial with one thought in mind, that I would finally be able to tell the whole story of the torment my son endured and how and why this horror happened. Sadly, I‘ve learned that the justice system will not allow this story to be told. The truth seeking process that I believe the justice system to be is stymied on many fronts resulting in the suppression of evidence that anyone would expect to hear at a fair trial. The prosecutor in my case has repeatedly admonished the jury that they must not expect to hear why this happened. I posted this website in the hope that the truth will come out.
--Gigi Jordan
JA.48. The court marked both documents as exhibits.
Justice Solomon noted that he had “never had this happen before” and asked the State what it was seeking. JA.24-25. The State asked the court to repeat its instruction to the jury about avoiding media coverage of the trial. Defense counsel did not object to this request. The State also asked for “some assurance that nobody on the defense team” was “in violation of your Honor‘s ruling and the ethical standards.” JA.25. Earlier in the Closed Proceeding, the prosecutor had said, “I am not, in any way, suggesting that any of the defense attorneys have knowledge of [the website or the email] . . . . I‘m not accusing anyone of anything.” JA.21.
Defense counsel again objected to the closure of the courtroom. The defense insisted that “the closed courtroom is not requested by us, is not necessary for us, is and remains unconstitutional and there is absolutely nothing in the record that [the State] just made that could conceivably justify the closure of the courtroom.” JA.26. The prosecutor explained that, given the publicity of the trial, he wanted to avoid the “feeding frenzy” that “would ensue from the defendant‘s desperate act of . . . trying to get into the public domain matters that this Court has ruled are inadmissible.” JA.24.
A lengthier exchange between the court and defense counsel followed, during which the court repeatedly asked where the website came from, defense counsel continued to object to the closure of the courtroom, and both counsel and the court agreed that for an attorney to disseminate the website would be unethical.
Towards the end of the Closed Proceeding, defense counsel moved to unseal the minutes of the proceeding and the two marked exhibits. The court denied the motion, but invited defense counsel to make a written application to unseal them. The court also noted that there was no “gag order” on what transpired in the proceeding, i.e., those present were free to disseminate
After the jury returned, the court repeated its instruction that they avoid media coverage of the trial. The courtroom had been closed for about fifteen minutes.
Later that afternoon, the court asked the prosecutor whether the minutes of the Closed Proceeding needed to remain sealed. The court explained, “[M]aybe it was an erroneous ruling. Maybe this should be in the public domain, I don‘t know. I‘m trying to think of the reason why it shouldn‘t. I can‘t think of a reason.” JA.43. The court then unsealed the minutes and the two exhibits. Jordan‘s trial continued for five more weeks – the verdict was handed down on November 5, 2014.
Procedural History
After her conviction, Jordan filed a motion to set aside her verdict pursuant to
Jordan appealed to the Appellate Division of the Supreme Court of the State of New York (the “Appellate Division“). On December 22, 2016, the Appellate Division affirmed the judgment. The court reasoned, in relevant part:
[Jordan‘s] Sixth Amendment right to a public trial was not violated when the court briefly closed the courtroom during a discussion of a legal matter relating to protecting the jury from exposure to publicity about the case. This was the equivalent of a sidebar, robing room or chambers conference. The right to a public trial does not extend to such conferences, and does not restrict judges “in their ability to conduct conferences in chambers, inasmuch as such conferences are distinct from trial proceedings.” [Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 n.23 (1980); see People v. Olivero, 289 A.D.2d 1082 (4th Dep‘t 2001).] Moreover, the conference had no impact upon the conduct of the trial other than having the court repeat its previous instructions about trial publicity and minutes and exhibits that had been sealed were unsealed the same day.
People v. Jordan, 145 A.D.3d 584, 585 (N.Y. App. Div. 1st Dep‘t 2016).
Jordan sought leave to appeal to the New York Court of Appeals. On May 3, 2017, her petition was denied. People v. Jordan, 29 N.Y.3d 1033 (2017). On
On November 20, 2018, Jordan petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus under
The State – through Amy Lamanna, the Superintendent of the Bedford Hills Correctional Facility, where Jordan was serving her sentence – appealed to this Court.
DISCUSSION
I. Standard of Review
“We review a district court‘s grant or denial of habeas corpus de novo, and the underlying findings of fact for clear error.” Rubin v. Garvin, 544 F.3d 461, 467 (2d Cir. 2008) (citing Clark v. Perez, 510 F.3d 382, 389 (2d Cir. 2008)).
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA“),
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A claim is “adjudicated on the merits” if the state court ruled on the substance of the claim rather than on a procedural ground. Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the
A writ cannot be granted “simply because . . . the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, whether a decision is “contrary to” or an “unreasonable application of” clearly established federal law is a “substantially higher threshold” than mere incorrectness. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal quotation marks omitted). AEDPA “does not require state courts to extend [the Supreme Court‘s] precedent or license federal courts to treat the failure to do so as error.” White v. Woodall, 572 U.S. 415, 426 (2014) (emphasis in original). The writ should be granted on grounds of unreasonableness only if “the state court‘s ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). In other words, the
II. Sixth Amendment Claim
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
The Supreme Court has, in two cases, extended this public-trial right to specific proceedings “beyond the actual proof at trial.”1 Waller v. Georgia, 467 U.S. 39, 44 (1984); Presley v. Georgia, 558 U.S. 209, 212 (2010) (per curiam). Waller
Presley further extended the public-trial right to jury voir dire. 558 U.S. at 213. In doing so, the Court relied on the parallel First Amendment right of the press to attend criminal trials, which the Court first recognized in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). In a subsequent case, Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984) (Press-Enterprise I), the Court applied the First Amendment public-trial right to jury voir dire, relying on both the historically open nature of jury selection, id. at 506-08, and the continuing importance of the jury selection process “not simply to the adversaries but to the criminal justice system,” id. at 505. The Presley Court reasoned that although
[t]he extent to which the First and Sixth Amendment public trial rights are coextensive is an open question, . . . there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist
on public proceedings than the accused has.
558 U.S. at 213. The Court therefore extended the Sixth Amendment to cover jury selection as well.
Neither Waller nor Presley clearly establishes whether the Sixth Amendment extends to the Closed Proceeding, which does not share the historically open nature of jury selection, nor the functional importance of suppression hearings.2 At the very least, “fairminded jurists could disagree” such as to preclude habeas relief. Yarborough, 541 U.S. at 664. Unsurprisingly, in light of the unorthodox circumstances that gave rise to the Closed Proceeding, we find no historical precedent supporting a tradition of holding such hearings in public. And the Closed Proceeding could not be said to have played a vital role in the trial, as it did not appear to have any substantive impact on the case. The Closed
The district court “examine[d] the nature of the proceeding at issue” and concluded that “[the] events during the Closed Proceeding were of the character that would typically be conducted publicly.” Jordan, 2020 WL 5743519, at *11-12. Specifically, the district court listed several reasons why, in the district court‘s view, the Closed Proceeding was distinct enough from an “off-the-record chambers conference” such that the Sixth Amendment must apply. Id. at *12. We do not find them to be persuasive.
The district court noted that “Justice Solomon presided from the bench, counsel spoke from their respective positions in the courtroom, and Jordan herself was in the courtroom,” but these observations say nothing about the
The district court also said that Justice Solomon made several “rulings” during the Closed Proceeding, but three of the four rulings—closing the courtroom, not imposing a gag order, and sealing the minutes and exhibits—were about the Closed Proceeding itself. These rulings had no relation to the question of Jordan‘s guilt or innocence. The fourth “ruling” was simply a repeated instruction to the jury not to consume media coverage of the trial, which was unobjected to by the defense and at most sought to ensure that the trial was being conducted properly.
Ultimately, any argument that applies Waller and Presley to the Closed Proceeding would require extending Supreme Court precedent to this sort of wholly ancillary proceeding. Under AEDPA, state courts are not obligated to do so.4 See White, 572 U.S. at 426. Because “[i]t is an open question whether a defendant‘s right to a public trial encompasses the sort of nonpublic proceeding at issue here,” Titus, 958 F.3d at 692-93 – in other words, because there is no “clearly established Federal law” on this question – it was not unreasonable for the Appellate Division to deny Jordan‘s claim.
Jordan also argues that the Supreme Court has specified steps the trial court must follow “before excluding the public from any stage of a criminal trial.” Presley, 558 U.S. at 213. Those steps, which were first articulated in Waller and adopted from Press-Enterprise I, are the following: “[T]he party seeking to close
The Sixth Amendment‘s public-trial right is a fundamental protection for the defendant and the public at large. But on review of a habeas petition, we are bound by AEDPA. We need not decide whether the courtroom should have
CONCLUSION
We have considered the petitioner‘s remaining arguments on appeal and conclude that they are without merit. We therefore REVERSE the judgment of the district court, and REMAND with instructions for the court to deny the petition for a writ of habeas corpus.