Another courtroom closure habeas case

I have a soft spot for "closed courtroom" cases. In these cases, after a guilty verdict, the criminal defendant argues that he was denied a fair trial because the courtroom was closed for a period of time during trial. This may seem like the ultimate technicality, but it actually applies the Sixth Amendment's right to a public trial.

The case is Mickens v. Larkin, a summary order decided on February 5. This guy was convicted of various weapons and drug charges. But during trial when an undercover officer testified, the judge closed the courtroom. That's the basis for this habeas corpus petition.

Under Supreme Court authority, "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." The trial court temporarily shut the courtroom out of concern for the officer's safety, and the safety of his family. The question is whether the state appellate courts in upholding the conviction unreasonably misapplied Supreme Court authority in holding that the courtroom closure did not warrant reversal of the conviction.

Hope you read that carefully. The question is not whether the Appellate Division simply got it wrong. For defendant to win his federal habeas petition, the Appellate Division must have unreasonably gotten it wrong. Wrong is not enough. Very wrong is the legal standard. In this case, the Appellate Division did not unreasonably apply Supreme Court authority. Here's a flavor of the Second Circuit's (Calabresi, Lynch and Lohier) reasoning:

[Defendant] argues that the closure ordered by the state trial court, which permitted certain family members to remain in the courtroom and stated that other members of the public might be permitted to attend upon request, was broader than necessary to protect those interests. He does not identify any Supreme Court case so holding, however, and does not explain how his preferred alternative – posting an officer at the door of the courtroom and having the court make an individualized ruling for anyone seeking to enter – is superior to the measures in fact adopted by the trial court.

The courtroom-closure rule has to be one of the most obscure bases to overturn a criminal conviction. But again, it stems from the Sixth Amendment. It does not mean the defendant can run free; it means you have a re-trial. If you think this rule still goes too far, blame the constitutional framers. They were soft on crime.