In September, 1947, petitioner was tried before a jury in the Kings County Court, New York; he was found guilty of robbery, grand larceny, and assault. The judgment of conviction was affirmed. People v. Bruno,
In 1964, petitioner sought a writ of habeas corpus in the federal courts. Chief Judge Foley of the Northern District of New York issued the writ for the production of petitioner for a hearing. United States ex rel. Bruno v. Herold,
I
The facts basic to a determination of this proceeding center around an incident in the courtroom during petitioner’s 1947 state court trial in which the trial judge, to meet a special situation which unexpectedly arose, said:
“I think I will clear the courtroom. Have everybody step out except the people in the jury box.”
Petitioner, together with two others, was on trial for the crimes of robbery, grand larceny, and assault. A witness, DiBari, was important for the People as the sole identification witness. A few days earlier a jury had been selected and sworn (before Judge Goldstein) but a mistrial had been declared, DiBari having taken the position that he would not testify for the People. Four days later the trial commenced (before Judge *127 Leibowitz). At some time before DiBari testified, the trial judge was made aware of the fact that DiBari was in “mortal fear of the ‘gang in the courtroom.’ ” When DiBari was sworn as a witness, the judge observed “thirty or forty people who were there, and they leaned, some of them leaned forward and grinned and grimaced, and this man sat facing them. And he turned white as a sheet and his hands trembled, and he was speechless. And I knew this from my experience as a criminal lawyer of 22 years and being on the bench for about seven years what was happening here.” (Testimony of Judge Leibowitz, 271. F.Supp. at 495.) It was against this background that the trial judge gave his directions to clear the courtroom, except the people in the jury box. Obviously, this meant the people in the other jury box 1 because the trial judge could, not have excluded the jury in a jury trial. The Judge had to meet an unusual and unexpected courtroom situation in which the interest of the prosecution, the defendant and the witness equally had to be protected. Discretion, not lightly to be disturbed after twenty years by others not then present or faced with the emergency, had to be exercised by the judge responsible for the conduct of the trial. Thus, petitioner was not in fact denied a public trial. The proof supports a conclusion that there was only a partial exclusion on the first day of trial and none on the second.
A Sixth Amendment situation is not reached. There was no in camera or secret trial. It was held in a public courtroom with attorneys, court reporters, court attendants and at least some outsiders present. Surely there is no constitutional right to the presence of all public spectators who might desire to be present — or to the presence of such element as might be detrimental to an orderly trial uninfluenced by deterrents to truthful testimony.
*128
Most pertinent is the situation and decision in United States ex rel. Orlando v. Fay,
“In our view, the record amply supports the conclusion that Orlando’s right to a public trial was not denied. The trial judge had good reason to believe that many persons in the courtroom were acting so as to interfere with the orderly conduct of the trial. There was good reason for the judge to believe that the defendant’s family and friends, including members of his union, at the behest and for the benefit of the defense, were attempting to intimidate and harass witnesses and otherwise to disrupt the proceedings. Under such circumstances the trial judge must exercise his power to exclude those who so act and those who appear to be acting in concert with them lest it be impossible for the trial to proceed and for the jury to pass upon the charges.”
On a previous appeal in this case, we said:
“On the basis of that assumption [statements in the affidavits and the reasonable inferences to be drawn therefrom to be true] it is apparent that the act of the judge of the state court in clearing the courtroom was well within his discretion. It was reasonable for him to conclude that he was confronted with a situation where the principal witness for the state had been intimidated and was likely to be further intimidated by the mere presence of certain persons, whom the judge could not specifically identify, so that the orderly proceeding of the state court trial would be completely stultified. Under the circumstances a denial by the court below of the Rule 60(b) motion went beyond the range of permissible discretion. The constitutional right to a public trial is subject to the power of the judge to preserve the fairness and orderliness of the proceedings of the court. United States ex rel. Orlando v. Fay,350 F.2d 967 (2 Cir. 1965).”
And somewhat analogous is the recent situation in a New York federal court where to maintain courtroom decorum, the trial judge ordered certain defendants in a multi-defendant criminal case to be shackled and even gagged as they sat before the jury for days. United States v. Bentvena,
Of primary importance to decision is the fact that petitioner in his trial was represented by Abraham Brodsky, “an able and experienced criminal lawyer.”
II
This Court would be closing its eyes to reality if it did not give proper recognition to the quality and experience of petitioner’s trial counsel. His knowledge of trial procedures and stratagems may be assumed. This assumption bears both upon the actual situation in the courtroom and upon intelligent waiver were the situation otherwise.
*129 Counsel obviously knew of the Sixth Amendment and his client’s rights thereunder. Had he been satisfied that his client was being denied a public trial, he would have been the first to object. Lack of objection then gives support to the other testimony that the courtroom was not completely cleared and that only the element which might have been prejudicial to a fair trial was requested to withdraw. Counsel’s recollection that an objection would not have been “warranted” in the light of the situation then presented to him is entitled to considerable weight in determining that petitioner was not deprived of Sixth Amendment rights as a matter of fact.
Ill
Even were the facts otherwise, did petitioner have a right to a trial at which were present persons who might seriously have affected the testimony of the witness on the stand ? It would be difficult to find any space between the lines of the Sixth Amendment into which to write any such declaration. But again, assuming such a far-fetched right, could it be waived as a matter of lack of importance or trial strategy?
From the commencement until the termination of every criminal trial, countless problems arise as to admissibility of evidence, comments of court and counsel and courtroom incidents. Absent quite extraordinary circumstances, the trial counsel and the trial judge then on the scene should be presumed to be the best qualified to appraise the situation requiring trial rulings. Federal judges sitting in habeas corpus should be most reluctant to retry the case from the vantage point of their reflective wisdom.
In finding no waiver of petitioner’s alleged rights in this case, Judge Foley relied on Fay v. Noia,
“ * * * counsel’s deliberate choice of the strategy would amount to a waiver binding on petitioner and would preclude him from a decision on the merits of his federal claim either in the state courts or here. Although trial strategy adopted by counsel without prior consultation with an accused will not, where the circumstances are exceptional, preclude the accused from asserting constitutional claims, see Whitus v. Balkcom,333 F.2d 496 (C.A. 5th Cir. 1964), we think that the deliberate bypassing by counsel of the contemporaneous-objection rule as a part of trial strategy would have that effect in this case.” Supra,, at 451,85 S.Ct. at 569 .
However, in reading Fay and Henry, recognition must be given to the fact that they cover situations along quite distinct lines. Along the Fay line are decisions whether to plead guilty, to appeal, and the like. Along the Henry line are the decisions, such as the present one, dealing with courtroom tactics and matters which only trial counsel would be equipped to pass on in the exercise of judgment under the circumstances presented by the then exigencies of the trial. Of necessity trial strategy must be entrusted to counsel familiar with the courtroom scene and whose decisions must be made in quick reaction as situations, usually unexpected, may arise. The Fay type of decision is apt to be made in the less pressurized atmosphere during conferences between defendant and counsel and related to more fundamental questions.
Here at most there was a single incident which at best could be likened unto discretionary courtroom “housekeeping.” And despite the technical arguments, none has shown that petitioner was prejudiced in any way and did not receive a fair trial.
Reversed.
(dissenting) :
I respectfully dissent from my brothers.
In his fourth well-considered opinion in these proceedings, Judge Foley, after a second evidentiary hearing which we
*130
ordered, for the second time has sustained Bruno’s writ of habeas corpus, and a second time has ordered that Bruno be conditionally released from New York State custody. Judge Foley found that petitioner’s Sixth Amendment right to a public trial was violated when the state trial judge cleared the courtroom during petitioner’s New York State trial for armed robbery, grand larceny, and assault. When this case was before this Court previously, I joined in our
per curiam
decision, United States ex rel. Bruno v. Herold,
My brothers ignore completely the fact that Judge Foley decided the issue of ultimate fact before him by crediting the testimony of the petitioner and his brother that after two witnesses had been sworn the courtroom was fully cleared of all spectators, including the mother and brother of petitioner, rather than the testimony of the trial judge and the prosecutor, both of whom are now judges of the State of New York’s trial court of general nisi prius jurisdiction, and the uncertain testimony of defense counsel who frankly stated that he was attempting to reconstruct events of which he had no independent recollection. It was the thought of these three Warden’s witnesses that the courtroom was cleared that day except for such lay persons as may have been sitting in a second jury box not occupied by the trial jury.
Irrespective of whether this resolution of the credibility of the five principals appears to us to have been reasonable, we, inasmuch as there are no contemporaneous documents to color or challenge the oral testimony, must accept Judge Foley’s resolution unless we are so convinced that a mistake has been made that we can hold his findings to have been “clearly erroneous” by our independent examination of the evidence. United States v. United States Gypsum Co.,
Under the circumstances, I am not convinced that we should overturn his findings so made, or that Judge Foley has made a mistake. In any event, the issue for decision was whether Bruno was denied a “public trial” and in connection with that issue, this conflict in the testimony would not appear to be of vitally decisive importance. See Estes v. Texas,
In the last paragraph of part I of their opinion, as well as in parts II and III, my brothers, in addition to reversing Judge Foley by ignoring his factual determinations, would seem also to offer as grounds for their reversal that the
*131
failure of defense counsel to object contemporaneously to the trial judge’s order clearing the courtroom constituted a waiver of his client’s right to a public trial. They find support for this position in Henry v. Mississippi,
I agree with my brothers that recognition must be accorded the fact that Henry and Noia arose out of different situations, but I think it evident that a decision that no objection should be interposed to the order clearing the courtroom was a decision defense counsel should not have made without first consulting with his client.
Therefore, I would hold that only the Noia standard of deliberate bypass by the accused himself can suffice as a court-inferred waiver of petitioner’s right to a public trial. Consequently, I dissent from my brothers, not only because I believe our Court should refrain from substituting our beliefs as to witness credibility for the credibility determinations of the experienced and conscientious trial judge below who saw and heard the live witnesses and, there being no contradictory probative documents, based his determinations upon his evalu-ation of their oral testimony, but also because I believe the majority has erroneously misapplied Henry in relation to Noia.
A preliminary question that must first be considered is whether the Sixth Amendment right to a public trial is applicable to the states under the Fourteenth Amendment. The question arises infrequently because practically all of the states, other than New York, guarantee the right in their state constitutions.
1
A reading of Gaines v. Washington,
“ * * * assumed that a criminal trial conducted in secret would violate the procedural requirements of the Fourteenth Amendment’s due process clause, although its actual holding there was that no violation had in fact occurred, since the trial court’s order barring the general public had not been enforced.”333 U.S. at 272 ,68 S.Ct. at 507 .
Broadly read, Oliver stands for the proposition that
“In view of this nation’s historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment’s guarantee that no one shall be deprived of his liberty without due process of law means at least that an accused cannot be thus sentenced to prison.”333 U.S. at 273 ,68 S.Ct. at 507 .
Reference may be had, also, to Chief Justice Warren’s and Justice Harlan’s concurring opinions in Estes v. State of Texas,
Judge Foley, on May 7, 1964, denied petitioner’s first habeas application in a written unreported decision, but after the New York Court of Appeals denied Bruno leave to appeal to that court from adverse determinations entered upon a state court
coram nobis
proceeding, Judge Foley, in September, 1964, issued a habeas writ to hold an evidentiary hearing on October 19. He accompanied this order with a learned written opinion, reported at
“It is a heavy responsibility after seventeen years have passed to compel the production of this state inmate, but under the law of the highest authority as I read it there must be further processing and inquiry into the claim presented. In my judgment, a hearing must be held to determine whether there was an intelligent and understanding waiver by the petitioner of a known constitutional right * *233 F.Supp. at 550 .
*133 Petitioner’s trial was held in May, 1947 and it is quite reasonable to assume that twenty-two years will have passed before the question of whether he intelligently and with understanding waived a known constitutional right during that trial shall have been decided.
At this hearing, see United States ex rel. Bruno v. Herold,
“I accept these affidavits as good faith recollections, but feel their vagueness, lack of force and indeeisiveness are apparent. It would be difficult to rely upon them as a fact-finding source directly or by proper inference, particularly in the light of the persuasive testimony of the petitioner in this respect and the odd fact there is no mention or indication of an untoward incident in any part of the trial record that routinely is made in some form prior to drastic clearance of the public from a courtroom during trial. A finding of justification in the legal sense for the closing of the trial to the public seems unsupportable on these inconclusive affidavits.”
It was conceded by the People that the trial judge cleared the courtroom,
Bruno testified that the court attendants put everyone out, including Bruno’s mother and brother, and that, except for the attendants, the courtroom was closed to the public for the duration of the two-day trial.
After this hearing, Judge Foley on October 14, 1965 sustained the writ, noting, at 367, that the “exclusion occurred at a time when the result was an important identification witness was allowed to testify without the usual public scrutiny” and “It is clear there was no objection to the exclusion of the public.”
He held that Bruno’s right to a public trial had been arbitrarily violated and, in defining that right, he quoted (at 367) from Justice Harlan’s concurring opinion in Estes v. Texas,
“Thus the right of ‘public trial’ is not one belonging to the public, but one belonging to the accused, and inhering in the institutional process by which justice is administered. * * * A public trial implies only that the court must be open to those who wish to come, sit in the available seats, conduct themselves with decorum, and observe the trial process.”
An appeal was undertaken on behalf of the Warden and while the appeal was pending the People, in January, 1966, submitted a motion to Judge Foley pursuant to F.R.Civ.Proc. 60(b) (6) to relieve the Warden from the October 14, 1965 order. Accompanying the motion were new affidavits by Judges Leibowitz and Helfand and attorney Brodsky. Judge Leibowitz recalled that the prosecutor had told him that the People’s essential prosecuting witness, DiBari, had told the prosecutor that he would not testify against Bruno and Bruno’s two co-defendants because he feared for his life if he did. The affidavits of Judge Helfand and attorney Brodsky support Judge Liebowitz’s recollection as to what Helfand told Leibowitz. All three of these late affidavits contained a statement that each of the affiants now recalled that civilians remained in the courtroom in one of two jury boxes with which the courtroom was equipped.
Of course, Judge Foley,
These three late-executed affidavits were before our Court of Appeals when the appeal from the judgment of October 14 was adjudicated. Appellee had objected to having them considered below by Judge Foley or by us, for appellee at no time had consented to their use and, as they were ex parte, appellee had had no opportunity to cross-examine the af-fiants.
We of the appellate court,
“On rehearing with a full opportunity to both parties to examine and cross-examine witnesses and offer other evidence, the trial court may find the facts to be quite different from those herein assumed for the purpose of testing the denial of the Rule 60(b) motion, and in rendering this decision we do not intend to pre-judge that factual issue.”368 F.2d at 188 .
After the remand Judge Foley held the rehearing we ordered. Judge Leibowitz, Judge Helfand, and counsel Brodsky testified in person. Petitioner testified in person for the second time. Petitioner’s brother, Alphonse Bruno, who had never before testified or submitted an affidavit in the case, testified in person. Judge Foley carefully weighed the testimony of these five witnesses, as appears from his reported opinion,
“A review of the testimony before me of the petitioner’s brother, Alphonse Bruno has a ring of truth to it in relation to the question involved as to whether forty or fifty people were not only excluded from the courtroom but also everyone in the other separate jury box as well. He described rather a bizarre incident. He said the famed Brooklyn baseball player, Cookie Lavagetto, was in the other jury box that day (separate from the one in which the jurors sat), and was introduced to the courtroom assemblage at some time before the courtroom was cleared. The brother testified he was with his mother in the courtroom, in the front row, and was one of the last to leave, and the famed baseball player came out of this spare jury box and *135 left with the rest of the audience when the order to clear the courtroom was made by the Judge.” 4 « * * *
“The important feature of the testimony of petitioner’s brother is his absolute recollection that after he and his mother were excluded they were never allowed back in the courtroom again during the two-day trial. He said they remained in the hallway and to his knowledge and observation there were no spectators ever allowed back in a closed, guarded courtroom when the trial was on. (R. 71). He testified he and his mother acted ‘nice and calm’ when in the courtroom. (R. 74). He did not hear the summations of the lawyers or charge of the Court and he and his mother knew nothing about the court proceedings until Attorney Brodsky came out the afternoon of the second day to tell him and his mother: ‘The boys were found guilty.’ ”
And so Judge Foley reaffirmed his previous decision and order that the writ be sustained. The Warden has again appealed and my brothers would this time reverse and direct that the writ be dismissed.
They do so by discrediting the oral testimony the trial judge credited and by holding that “the proof supports a conclusion that there was only a partial exclusion on the first day of trial and none on the second.” Had Judge Foley found these facts I would have gladly accepted them as determinative, but he found a contrary conclusion, to wit, that there was a total exclusion of spectators on both days, and, very obviously indeed, the proof supports that conclusion.
Accordingly, I would uphold the factual determinations Judge Foley made.
In reaching their result my brothers chose to believe the witnesses whose recollections the trial court thought were too vague, inconclusive and uncertain to warrant preference over the clear-cut direct testimony of petitioner and his brother. They completely disregard the trial judge’s factual findings, despite Rule 52(a), and forget that the judge below saw and heard the witnesses and conscientiously weighed the credibility of the recollections of all five witnesses who appeared before him. To be sure, the three Warden’s witnesses are members of our own profession and are well-known citizens, but like Judge Foley
“My impression of the lay evidence is that busy lawyers and judges who have contact with many trials and defendants may tend to have blurred memory of a particular one after many years, but the lay person, when himself or a member of his family is involved probably only in one, might be more inclined toward graphic recollection.”271 F.Supp. at 496 ,
and I am as impressed as Judge Foley was with the testimony of the defendant’s brother, who recounted an unusual incident involving a famous baseball player, and as Judge Foley said of this testimony: “It would be difficult to imagine or fabricate such happenings.”
I deplore the usurpation by my brothers of the trial judge’s function of assessing witness credibility when there are no exhibits or other items of objective evidence to color or contradict the oral testimony of witnesses who have testified in person in the judge’s presence and when, as here, the trial judge has “lived with” a case for a number of years.
In addition, Judge Foley points out that there were no May 26 or May 27 newspaper stories about the trial, while there was a May 28 story which appeared after the trial had been concluded and which contained nothing relative to courtroom occurrences on those two days. For *136 what this evidence may be worth, it gives credence to petitioner’s claim that even the press was excluded from the courtroom.
I, of course, am in full agreement with the majority that broad discretion must be given to trial judges as to how best to conduct a criminal trial, a trial which could terminate, as this one did, in depriving an accused of his freedom for from 30 to 60 years. Nevertheless, the United States Constitution places definite limits on that discretion. Among the most basic of these limitations is the Sixth Amendment command that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial * * In the present case, I, having accepted Judge Foley’s findings— (the findings of the trial judge whose errors of law it is our duty to review)— hold with him that the state trial judge overstepped the bounds of sound discretion in depriving this defendant of a public trial. Therefore, though I, a Federal Judge, have a normal reluctance to second guess state trial judges, here, when the discretion exercised by the state trial judge resulted in the clear deprivation of the defendant’s constitutional right, I have no hesitancy in overcoming my reluctance to interfere with state court proceedings in order to do justice to this petitioner, who has already spent two decades in confinement; and, as well, to offer guidelines for the future. Again, I adopt the language of Judge Foley:
“In my judgment, an order excluding the public from a criminal trial should be a decision of the last resort. If it is to be used freely when a witness is reluctant to testify, or threatens to lie, then I think we approach a dangerous doctrine. The best resort, then, as it has always been, is to put him on the stand, see what attitude he takes, impeach him, and if he persists in lying, indict him. Examination and cross-examination of a witness in the public view predominates in our trial system in this country.”271 F.Supp. at 496-497 .
In the present case I am convinced that Judge Foley did not err in finding that the courtroom was cleared, and, agreeing that such drastic action was entirely unnecessary and assuredly prejudicial, I would affirm the conclusion that the defendant was denied his constitutional right to a public trial.
My brothers attempt to class this case with United States ex rel. Orlando v. Fay,
And though my brothers also consider the courtroom shackling and gagging of a particularly dangerous and loudly obstreperous defendant in United States v. Bentvena,
Alphonse Bruno’s testimony is uneon-tradicted that he and Anthony’s mother were excluded from the courtroom where they had been “nice and calm” and that they knew nothing about the courtroom proceedings after their exclusion until Anthony’s counsel, attorney Brodsky, told them in the afternoon of the second day that Anthony had been found guilty.
Having in mind this exclusion of the accused’s mother and brother who had been decorously sitting in the courtroom’s front row of spectators, I am of the opinion that it is immaterial to the constitutional issue here, see quote from Justice Harlan’s opinion in Estes v. Texas,
supra
at 587,
Despite Judge Foley’s findings as to the changing positions of the three Warden’s witnesses as these proceedings progressed, see
Inasmuch as I believe that Judge Foley’s findings of fact are not “clearly erroneous” and as I believe these findings demonstrate, without peradventure of doubt, that the clearing of the courtroom by the trial judge was arbitrary, prejudicial to the defendant, and not within the outer perimeter of the fair exercise of a trial judge’s discretion, it has become necessary for me to discuss whether attorney Brodsky’s failure to object constituted a waiver imputable to the accused so as to constitute a waiver by the accused himself of his constitutional right, under the Sixth Amendment, to a public trial.
With reference to the issue of whether attorney Brodsky, by failing to object, effectively waived petitioner’s right to a public trial, the majority opinion does little to clarify the problems created by the relation between Fay v. Noia,
supra,
and Henry v. Mississippi,
supra. In Henry
there is no mention of a limitation on
Noia,
and it seems likely that some indication to that effect would have been stated if that had been the Court’s intent, particularly as Mr. Justice Brennan wrote both opinions. See Ledbetter v. Warden,
These are (1) the nature of the right involved; (2) the degree of actual strategy that entered into counsel’s decision; (3) the opportunity for and possibility of meaningful consultation between counsel and the accused as to the best course to follow; and (4) the degree of exceptional pressures or circumstances on either counsel or the accused which could dictate a choice of waiver. See, generally, Comment, “Criminal Waiver: The Requirements of Personal Participation, Competence and Legitimate State Interest,” 54 Calif.L.Rev. 1262 (1966).
(1) The law already recognizes that certain rights may not be waived by counsel but can only be waived by the accused himself, e. g., the right to a trial by entering a plea of guilty, Fed.R.Crim. P. 11, United States v. Diggs,
“Normally rights under the Federal Constitution may be waived at the trial, Adams v. United States ex rel. McCann,317 U.S. 269 [63 S.Ct. 236 ,87 L.Ed. 268 ], and may likewise be waived by failure to assert such errors on appeal. Compare Frank v. Mangum,237 U.S. 309 , 343 [35 S.Ct. 582 , 593,59 L.Ed. 969 ]. When a State insists that a defendant be held to his choice of trial strategy and not be allowed to try a different tack on State habeas corpus, he may be deemed to have waived his claim and thus have no right to assert on federal habeas cor *139 pus. Such considerations of orderly appellate procedure give rise to the conventional statement that habeas corpus should not do service for an apppeal. See Adams v. United States ex rel. McCann, supra [317 U.S.] at 274 [63 S.Ct. 236 , at p. 239], Compare Sunal v. Large,332 U.S. 174 [67 S.Ct. 1588 ,91 L.Ed. 1982 ], with Johnson v. Zerbst,304 U.S. 458 , 465-469 [58 S.Ct. 1019 , 1023-1025,82 L.Ed. 1461 ]. However, this does not touch one of those extraordinary cases in which a substantial claim goes to the very foundation of a proceeding, as in Moore v. Dempsey,261 U.S. 86 [43 S.Ct. 265 ,67 L.Ed. 543 ], Cf. Ex parte Lange,18 Wall. 163 [21 L.Ed. 872 ] ; Ex parte Royall,117 U.S. 241 [6 S.Ct. 734 ,29 L.Ed. 868 ].” Id. at 503,73 S.Ct. at 444 . (Emphasis supplied.)
This Court made the same observation in quoting this passage approvingly when Noia’s case was before us. United States ex rel. Noia v. Fay,
(2) A second important consideration in determining whether defense counsel’s failure to act is sufficient to constitute a binding waiver by the accused is the degree to which the failure to act was a strategic choice. This is clearly underscored in
Henry
by the United States Supreme Court’s remand of that case to the Supreme Court of Mississippi for the state court to determine whether strategy was there involved. The negative implication of this remand must be that there is a waiver imputable to the accused only when his counsel’s decision is a deliberate one made by counsel affirmatively to enhance, in counsel’s judgment, the accused’s chances, and that just a mere default by counsel is not imputable to an accused as a waiver of his rights. The Court thus established a two-step process: first, it determined that the attorney’s decision not to object to the alleged violation of the accused’s rights could have been a tactical one — it even listed several possible strategic reasons at
Several courts have similarly emphasized the need for a deliberate choice on the part of counsel, e. g., Ledbetter v. Warden,
supra;
United States ex rel. Gockley v. Myers,
(3) A third variable in determining the issue of imputed waiver is the opportunity for and the possibility of meaningful consultation between the accused and his attorney. Trial counsel ought riot to be required to consult with his client on all matters of trial strategy. This is so in order to further trial progress, but iriore importantly because an attorney’s trained knowledge will most often be based on a sounder understanding of strategy and procedure than the underderstanding of his client. See Nelson v. California,
These justifications for exclusive attorney courtroom control do not insulate participation of the accused from all courtroom situations, however. Oftentimes, the problem to be solved is simple enough for the average defendant to comprehend it and little or nothing in terms of trial strategy is involved in resolving it. As one respected federal judge has concluded:
“ * * * important rights are often lost, however, when trial strategy is not involved. There is no reason to give attorneys more power to waive defendants’ rights than they need in order to represent their clients effectively. When the decision to be made does not require a speedy judgment or involve factors which are beyond the ordinary defendant’s ability to understand, consultation should normally be necessary.” Wright and Sofaer, supra at 973.
See also, Comment, 54 Calif.L.Rev. supra at 1269-76. But see Nelson v. California, supra. Cf. Ledbetter v. Warden, supra.
(4) Finally, there is a factor which does not differentiate between personal bypasses and the bypasses of counsel, but instead holds that a bypass is a violative one in either circumstance. This is the factor applicable when there have been exceptional pressures on the defendant or his counsel to forego his right, or, in a trial, to forego protecting against loss of the right. The two leading examples are Fay v. Noia,
supra,
and Whitus v. Balkcom,
supra.
In the former the defendant deliberately forewent his right to appeal. The Supreme Court held, however, that this decision was not “merely tactical,”
I turn now to an analysis of the present case in terms of these factors. The most striking aspect of the alleged waiver here seems to me to be the complete absence of the possibility of there being a strategic choice on the part of counsel in failing to object to the order excluding the spectators. The defense attorney stated that he believed an objection would be neither warranted nor sustainable, but surely the negative implication of the remand in Henry v. Mississippi, mentioned supra at p. 139 indicates that such a determination is not enough to constitute a waiver by counsel of his client’s right. The view of the majority of the Supreme Court there, backed by the weight of the commentators, is that counsel’s choice not to object does not constitute his client’s waiver of a constitutional right unless the choice was “a voluntary choice between two meaningful alternatives.” Comment, 72 Yale L.J., supra at 567 n. 34. See Wright and Sofaer, supra at *141 961-979; Note, 40 N.Y.U.L.Rev. at 470-471 (1966).
In the present case, counsel did' not have meaningful alternative choices because nothing could be gained by not objecting, especially if the objection was made out of the presence of the jury.
7
As for counsel’s belief that his objection would not be sustainable, that should be of no concern to us. If his belief was incorrect, his action was a default of his client’s rights, and the clear implication of
Henry
is that such a default is not a waiver. On the other hand, if his belief was correct at the time it was made but there would be a different result today, the situation is analogous to the one faced by us and several other Courts of Appeal which have held that it was not a waiver of his client’s constitutional rights to fail to object to a violation of a right that counsel could not have known existed when he failed to object. E. g. United States ex rel. Floyd v. Wilkins,
And, of course, overlapping the above discussion is the additional consideration that whether to object to the clearing of the courtroom is a decision that was clearly within the comprehension of the average defendant such as the defendant here. Though most defendants might not understand, for example, the full implications of a decision whether to object to the introduction of certain evidence, they could understand what could be gained or lost by not objecting to the exclusion of one’s family and friends, and the press, from the courtroom.
Correspondingly, to require counsel to confer with the defendant on this question would not normally be a serious encroachment on counsel’s professional responsibility to control the conduct of the lawsuit. Because a question of strategy would rarely be involved in a consideration of this matter, and because the defendant could participate effectively in the making of the decision, there seems to be no justification for holding that the accused’s rights to have his family and friends observe the trial were waived by him when he was never consulted about it.
The right to a public trial is one of the most basic liberties guaranteed by the Bill of Rights. Indeed, as one commentator states, it seems “analogous to the right of trial by jury, waiver of which was held to require the ‘express and intelligent consent of the defendant’ even prior to the adoption of Rule 23(a) of the Federal Rules of Criminal Procedure, which requires a written waiver.” Note, “The Right to a Public Trial in Criminal Cases,” 41 N.Y.U.L.Rev. 1139, 1148 (1966), quoting from Patton v. United States,
“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.”333 U.S. at 270 ,68 S.Ct. at 506 .
See authorities cited
id.
at 270 n. 25,
In the closing sentence of the majority opinion, there is an implication that petitioner must produce specific proof of specific prejudice before he may claim that because he did not have a public trial he suffered a meaningful deprivation. Contrariwise, I maintain, as the Eighth Circuit maintained as early as 1917, that when the right to a public trial has been violated the
“ * * * violation of the constitutional right necessarily implies prejudice and more than that need not appear. Furthermore, it would be difficult, if not impossible, in such cases for a defendant to point to any definite, personal injury. To require him to do so would impair or destroy the safeguard.”
Davis v. United States,
Lastly, here there were no exceptional circumstances or pressures of the sort encompassed within the fourth variable.
On the basis of the above analysis, I submit that there was no intentional relinquishment by petitioner of his right to a public trial imputable to him because of the failure of his counsel to object to the exclusionary order.
The fact that defense counsel knowingly did not object to the exclusion order does not support a claim that petitioner, himself, also knowingly failed to object. We are instructed that we may not presume that an accused has, by his silence, waived a fundamental constitutional right and are instructed that we should indulge every reasonable presumption against such a waiver. Carnley v. Cochran,
I would affirm Judge Foley.
Notes
. There was proof, by affidavit, “that a number of civilians remained in the second jury box, usually reserved for attorneys and reporters.”
Excerpts of testimony at the hearing on February 6, 1967.
Julius Helfand, a Judge of the Supreme Court, Kings County, Now York, who in 1947 as an Assistant District Attorney represented the People in the Bruno trial:
“There was a jury box on the left, and another on the right. That was the one used for the trial itself. And the alternate lefthand jury box was one used for members of the press, counsel, their clerks, and often visitors —some of whom may have been known to the judge, defense counsel, and prosecution. It seated more than the ordinary 12, and the box was partially filled with people. They remained in the courtroom when the order of exclusion was made.”
*****
“I had called other witnesses, probably the owners of the Cirillo Brothers Coal Company, the place where the holdup had taken place. One or more of the members of the firm testified. It was then that DiBari was to be called, and during the testimony of the other witnesses, no one had been excluded.”
# ♦ * sjs *
“I recall this was jury box where there were always people present. Yes, there was in this case. Just no question about that.”
* * * * *
“I put it in this way, that I had discussed it [the exclusionary order] with the trial court and the defense counsel, and then it was done. We all were in agreement that this is what should be done.”
Samuel Leibowitz, a Judge of the Supreme Court, Kings County, New York, who presided at the Bruno trial:
“They [reporters] were there every day. They have their room in the Courthouse and they were sitting there in the jury box and so were other people there.”
sis * * * *
“ * * * and there just remained a few minutes of cross-examination [of DiBari] by Mr. Brodsky on the following day, so there was nothing said about people coming in, and people were there. Nobody stopped anybody from coming in on the following day.”
Abraham H. Brodsky, Esq., Bruno’s trial counsel:
“I have a recollection that there were some members of the press present in the other jury box.”
As of December 31, 1968, 467 habeas corpus petitions filed in the United States District Court for the Northern District of New York by persons convicted in the New York state courts had been entertained by Judge Foley to the extent that he had written memorandum dispositions thereof. Of these 467 he had denied 380 without a hearing and without issuing the requested writ; he had denied 73 after issuing the writ and holding an evidentiary hearing; and in only 14 of the cases, after hearing, did he sustain the writ.
. At least forty-three states have constitutional provisions providing for a public trial. E.g., Ala.Const. art. I, § 6; Alaska Const, art. I, § 11; Ariz.Const. art. II, § 24; Ark.Const. art. II, § 10; Cal. Const, art. I, § 13 ; Colo.Const. art. II, § 16; Conn.Const. art. I, § 9; Del.Const. art. I, § 7; Fla.Const. Declaration of Rights § 11; Ga.Const. art. I, § 1, ¶ 5; Hawaii Const, art. I, § 11 ; Idaho Const, art. I, § 13 ; Ill.Const. art. 2, § 9 ; Ind. Const, art. I, § 13 ; Iowa Const, art. I, § 10 ; Kan.Const. Bill of Rights § 10; Ivy .Const. Bill of Rights § 11 ; La.Const. art. I, § 9; Me.Const. art. I, § 6; Mich. Const, art. I. § 20; Minn.Const. art. I, § 6; Miss.Const. art. Ill, § 26; Mo. Const, art. I, § 18(a); Mont.Const. art. 3, § 16; Neb.Const. art. I, § 11; N..T. Const, art. I, § 10; N.M.Const. art. II, § 14; N.C.Const, art. I, § 13; N.D. Const, art. I, § 13; Ohio Const, art. I, § 10; Okla.Const. art. 2, § 20; Or.Const, art. I, § 11; Pa.Const. art. I, § 9; R.I.Const. art. I, § 10 ; S.C.Const. art. I, § 18; S.D.Const. art. 6, § 7 ; Tenn.Const. art. I, § 9 ; Tex.Const. art. I, § 10; Utah Const, art. I, § 12; Vt. Const, ch. I, art. 10; Wash.Const. art. I, § 22; W.Va.Const, art. III, § 14; Wis.Const, art. I, § 7.
In New York a public trial is guaranteed by statute. See Section 8 of New York Code of Criminal Procedure: Section 12, Civil Rights Law, McKinney’s Consol.Laws, c. 6.
Exclusion of the public is permissible by statute when certain classes of crimes are at issue. See Section 4 of the Judiciary Law, McKinney’s Consol.Laws, e. 30. The crimes that Bruno was charged with having committed are not within those classes.
. See also, for example, some of the extensions to the States of other provisions of the Federal Bill of Rights, as in Malloy v. Hogan,
. An analysis of this affair, an admittedly aftcr-the-fact analysis, causes one to be completely puzzled as to why the judge permitted himself to be so imposed upon by DiBari. If DiBari were truly in fear, and the accuseds were convicted upon his testimony, protective measures after the verdict came down would be required, for whether he testified in Star Chamber or in open court it would be known that his testimony was necessary to convict. A private telling of his story would not protect him from revenge after the trial was finished. Clearing the courtroom accorded him no protection whatever — and the two pictures, first, that of a witness telling the judge and prosecutor at the beginning of a trial how, when, and under what circumstances he will tell the truth or will lie, and then, second, the picture of a judge acquiescing in the witness’s demands, leaves one somewhat aghast. Contempt proceedings and perjury prosecutions are available to remedy such situations.
. This testimony was corroborated by the petitioner, who testified that “Lavagetto was not alone but had his pregnant wife with him, and she went out too with her husband from the separate jury box when the exclusion statement was made.”
. Justice Harlan's definition of a “public trial” in Estes v. Texas,
supra,
is, as far as I have discovered, the latest U.S. Supreme Court pronouncement on the subject, but prior to 1965 there had been conflicts in the state courts and inferior federal courts as to the meaning of the phrase. The narrowest view had been that only a limited number of spectators need be present in addition to those persons necessary to conduct the trial, e.g., Reagan v. United States,
. The Court did state that it was not holding that there could never he a deliberate bypass so as to constitute a true waiver when the right to appeal was not availed of because of a fear of a heavier sentence on retrial. It said each case should be judged on its own special facts. Noia’s bypass was held not to be a deliberate one because his fears were more meaningful because of the language used by the judge in sentencing him.
. There is a suggestion in the testimony of the two state judges that the exclusionary order may have been talked over in chambers prior to the taking of the stand by DiBari. There is also a hint that defense counsel was informed and consulted with and that he made no objection at that time, even that he may have affirmatively agreed to the coming exclusion order.
In any event, the testimony of all three does indicate, despite the colorful testimony of Judge Leibowitz that he made a sudden decision, that the exclusionary order had been contemplated prior to its issuance. Therefore, if this be so, counsel had plenty of time in which to talk over with his client the anticipated order. If the order was not earlier contemplated and came to experienced defense counsel as a surprise, he could have objected to it in several ways without incurring the displeasure of the jury, as by requesting a side bar sotto voce discussion at the bench or by asking for a short recess while he made his objection to the court in the robing room or by asking that the jury be excused while he made the objection in open court. Moreover, it took time to clear out the thirty or more spectators who were sitting in the seats reserved for spectators behind the rail regardless of whether the “second jury box” was ordered cleared, and during this period counsel could well have discussed with his client whether to make an objection to the unconstitutional deprivation.