The case is Downs v. Lape, decided on September 14. Is there anything worse than losing on a technicality? Making things worse for Downs, Judge Chin dissents from the Second Circuit ruling. This means that Downs had some legitimate arguments, but he could not win over the other two judges, Wesley and Lohier. When Hill went to trial on the charge that he robbed a body shop, the trial court excluded his 12 year-old brother from the courtroom. This is unconstitutional and entitles the defendant to a new trial unless there is a very good reason not to have a public trial. The problem is that a sparse record was made of this determination, giving the Second Circuit very little to work with in assessing whether the state trial judge did the right thing.
After the trial judge kicked out the 12 year-old boy, Downs' lawyer went on the record and said this:
I do want to note for the record that there was a young man who, a family member of the defendant who had been asked by the Court to leave because of his age. He is 12 years old and the Court is indicating that it sets a limit of approximately 16 or 17 years of age.The Second Circuit has its hands tied behind its back on this appeal because for Downs to win on his claim that the trial court violated the Constitution, he has to show that the Appellate Division "exorbitantly" applied settled state law rules in rejecting Downs' direct appeal. Judge Lohier says that Downs cannot meet that test. While Downs' lawyer offered a few words on the record after the trial court made its exclusion ruling, it is not clear that this was actually a particularized objection or whether instead counsel was simply telling the court that the family intended to comply with the ruling. These distinctions matter in these cases, and the Court of Appeals defers to the Appellate Division's ruling that counsel did not preserve the objection at trial.
I informed the family of that and I’m sure they will comply. However, I do want to note, for the record, that I believe the young man is a suitable age and that he would not have been an obstruction to the proceedings.
But be that as it may, I have also spoken to the assistant district attorney earlier to apprise her of the following list of things that I believe that I am entitled to and have not yet received . . . .
This is a close case, though, as shown by Judge Chin's dissent, which says that counsel did make a proper objection in making his comments "for the record," which is lawyer-speak for saying something that he wants the appellate court to see on some future date in assessing the fairness of the trial. Judge Chin was a former trial judge. He writes, "as a trial judge, I certainly understood that a lawyer was objecting when she stood up and said 'for the record' before expressing disagreement with my ruling. To Judge Chin, it looks like counsel was objecting to the trial court's blanket rule of excluding all young people from criminal trials, a per se constitutional violation since particularized reasons must justify these exclusions. As this objection was timely, counsel did not waive his protest, and this case should be decided on the merits.