Opinion
No. 00 Civ. 1263 (RWS)
December 11, 2002
Andrew C. Fine, Esq., 120-46 Queens Boulevard Kew Gardens, N.Y. 11415, Attorney for Petitioner
Honorable Eliot L. Spitzer, Attorney General of the State of New York 120 Broadway New York, N.Y. 10271, By: Melanie L. Oxhorn, Esq., Beth Thomas, Esq., Assistant Attorneys General, Of Counsel, Attorney for Respondents
OPINION
Sweet, D.J.,
Following remand by the United States Court of Appeals for the Second Circuit, respondents Hans Walker and Eliot Spitzer (the "State") have moved for an order denying the petition for writ of habeas corpus of petitioner Hoi Man Yung ("Yung"), through which Yung claims, pursuant to 28 U.S.C. § 2254(d)(1), that he was denied his right to a public trial when the trial court closed the courtroom to three of Yung's female relatives during the testimony of an undercover officer. The Second Circuit has remanded for this Court to determine whether (1) the closure was reasonable under the general teachings of the governing Supreme Court cases, In Re Oliver, 333 U.S. 257 (1948) and Waller v. Georgia, 467 U.S. 39 (1984) and (2) if the closure was not reasonable, whether another evidentiary hearing should be held, at which time the State may supplement its showing of the need for closure. For the reasons which follow, the motion of the State is denied, and the case shall be remanded with instructions to release Yung unless he is retried within a reasonable time.
Facts
The parties and events involved have been described in fuller detail inYung v. Walker, 143 F. Supp.2d 262 (S.D.N.Y. 2001) (Yung I), and Yung v. Walker, 296 F.3d 129 (2d Cir. 2002) (Yung II), familiarity with which is presumed.
Yung's Trial and Hinton Hearing
In 1993, Yung was indicted on multiple counts each of first-degree criminal sale of a controlled substance, criminal possession of a controlled substance in the third degree, criminal sale of a firearm in the third degree, and criminal possession of a firearm in the third degree.
The prosecution's case involved the testimony of an undercover police officer who, at the time of trial, was continuing to work in an undercover capacity in the same Lower East Side neighborhood where Yung and his confederates had been involved in the illegal drug and weapons trade. Seeking to ensure the officer's safety and continued effectiveness, the prosecution sought to have the officer testify by badge number, rather than by name, and to close the courtroom to the public — including Yung's family. Yung specifically sought to have his mother, Ha Chung Yak; his sister-in-law, Theresa Soto; and his daughter's mother, Beverly Soto, excluded from the closure order.
While Yung also sought to have his brother, David, be permitted to remain, Yung's counsel stated that he would "understand if [the court] want[ed]" to exclude David in light of David's involvement in Yung's criminal activities and arrest on similar charges.
Justice Ronald Zweibel of the Supreme Court of the State of New York held a hearing pursuant to People v. Hinton, 31 N.Y.2d 71, 75-76, 334 N.Y.S.2d 885, 889-90 (1972), to determine whether such protective measures were warranted and, if so, their appropriate scope. On November 18, 1994, the courtroom was sealed, and the officer testified in the presence of only the judge and counsel.
The officer testified that he continued to work on two pending investigations in the neighborhood where Yung had operated, had been threatened by unnamed "people connected with" Yung, most recently approximately nine months prior to the hearing, and feared for his safety if the courtroom were not closed during his trial testimony. The only person he cited as having threatened him was not a member of Yung's family and was in the midst of an ongoing trial at the time the officer testified. No questions were asked regarding whether the individual was in custody or whether that trial was being held in the same courthouse as Yung's trial.
The officer, who was called and identified by his shield number (#1022) rather than his name, stated that in his nine years as an undercover officer, he had testified approximately forty times, all of which had been in closed courtrooms. He testified that he used his first name in the field and would no longer be able to operate as an undercover officer if his identity were revealed in open court. No testimony was elicited regarding what measures, if any, the officer took to avoid being identified while inside the courthouse.
On cross-examination, the defense counsel attempted to elicit the names of the associates of Yung who had threatened the officer, but Justice Zweibel cut off that line of questioning, stating that he would allow only those questions that "do not jeopardize the safety and security of the officer. If it means perhaps compromising the defendant's rights to the extent of not revealing the officer's identity to other that he's associated with them I will not permit the hearing to go that far." (Hearing Tr. 692, 693-95). When defense counsel challenged the existence of any link between disclosing the identity of persons who had threatened the officer and a threat to his safety, Justice Zweibel replied, "I understand. But you want the names of individuals who perhaps can be told at a later point who the undercover allegedly claims threatened him, so that they will know who this undercover is while he is out in the field." (Hearing Tr. 696.)
The defense noted that whether the undercover officer could be identified should not be a consideration, because he would necessarily disclose his identity when he testified in Yung's presence at trial. Justice Zweibel discounted this argument and refused to allow the defense to pursue any questions that could lead to the officer's identity being revealed. (Hearing Tr. 697.)
When asked whether he had any "reason to fear" Yung's three female relatives, the officer responded, "I can't really answer that," and referred only to the unnamed individual from whom he had received threats, who was not related to Yung, but was merely "affiliated" with him. (Hearing Tr. 710, 711.) However, the officer did admit that he had never been threatened by any member of Yung's family. (Hearing Tr. 708.). No questions were asked to ascertain whether Yung's family lived in the same Lower East Side neighborhood where the officer conducted undercover operations.
Justice Zweibel found that the prosecution had shown sufficient danger to the officer's undercover identity and safety to justify closing the courtroom to Yung's three female relatives, not because they posed any direct threat to the officer, but because allowing them to be present would "mak[e] it easier" for others with whom Yung was associated outside the family to identify the officer. As a result, the three female relatives were excluded despite Yung's argument to the contrary.
At trial, the undercover testified in a closed courtroom that he had purchased narcotics and weapons from Yung. The State presented other evidence in addition to the undercover's testimony, including the testimony of a second police officer, who was the undercover's backup and received the recovered firearms; three New York City Police Department chemists; a detective and firearms examiner; and two civilian chemists. Yung was the only witness for the defense.
On December 1, 1994, Yung was convicted of two counts of criminal sale of a controlled substance in the first degree; nine counts of criminal sale of a firearm in the third degree; five counts of criminal possession of a weapon in the third degree; and three counts of criminal sale of a controlled substance in the third degree. Yung was sentenced to a fifty-year to life prison term. Yung continues to be incarcerated at Auburn Correctional Facility in Auburn, New York, pursuant to a judgment rendered on January 15, 1995.
Procedural History
After exhausting his state remedies, Yung, through Legal Aid Society counsel, filed the instant petition on February 18, 2000. The sole constitutional question raised was whether sufficient evidence had been presented that the excluded family members presented any danger to the undercover to justify closing the courtroom to them in light of Yung's Sixth Amendment right to public trial. The State filed briefs in opposition to the petition on August 23, 2000, and November 8, 2000. The motion was deemed fully submitted after oral argument on December 13, 2000.
On April 17, 2001, this Court granted Yung's habeas petition, finding that the trial court was not justified in closing the courtroom to Yung's three female relatives during the undercover officer's testimony. Yung I, 143 F. Supp.2d 262. After reciting the appropriate Supreme Court case law, relevant Second Circuit precedent was discussed, including Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994). It was determined that where a prosecutor neither demonstrates the likelihood that a defendant's family members will cross paths with an officer during an undercover operation, nor provides any articulable indication that family members were inclined to harm a police officer, closure is not warranted.
On May 15, 2001, the State filed a Notice of Appeal from the grant of the petition.
On June 27, 2002, the Second Circuit vacated the order granting the writ, remanding "for analysis of the reasonableness of the closure under the governing Supreme Court cases . . . ." Yung II, 296 F.2d at 131. The Court explained that the issue of "whether a state court's belief that Supreme Court precedent imposed a lesser or different burden [from Vidal] would be unreasonable" had to be addressed on remand. Id. at 135. It also described its view of what would be unreasonable under Supreme Court precedent:
In light of In re Oliver, we believe that it would be an unreasonable interpretation of Waller or, at a minimum, an unreasonable failure to extend Waller, not to require a heightened showing before excluding family members. However, we do not assume that the Court would require the precise showing that we outlined in Vidal. [FN 1] It is the district court's implicit assumption that the Vidal analysis is the only way to measure the propriety of excluding family members that causes us to remand.
FN 1. Nor did we hold in Vidal or in any other case that the proponent of closure must make precisely the showing we discussed in Vidal. We do not rule out the possibility of justifying closure to family members without the likelihood of encounter. For example, if a relative happened to be an organized crime boss with a known propensity for ordering assassinations of inconvenient witnesses, we believe he could be excluded, notwithstanding the fact that he lived nowhere near the area in which the undercover officer operated.Id. at 136. The Court finally suggested that it "might be advisable to conduct a supplementary hearing" because People v. Nieves, 90 N.Y.2d 426 (1997) was decided after petitioner's conviction.
In Nieves, the New York Court of Appeals held that the State must demonstrate a "substantial probability" that the officer's safety would be jeopardized by the presence of the defendant's family.
By letter dated September 5, 2002, the State requested that the matter be returned to New York state trial court for a supplemental Hinton hearing. The instant motion was filed on October 23, 2002, and was considered fully submitted after oral argument on November 6, 2002.
Discussion I. Standard of Review
Because Yung filed his petition after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court must presume the state court's factual findings to be correct and may overturn those findings only if the petitioner offers clear and convincing evidence of their incorrectness. 28 U.S.C. § 2254(e). A state court adjudication may be overturned only if it:
Pub.L. 104-32, 110 Stat. 1214 (effective April 24, 1996), 28 U.S.C. § 2244-66.
(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.28 U.S.C. § 2254(d). Yung relies on § 2254(d)(1), claiming that the state court's determination that the hearing should be closed was contrary to, or involved an unreasonable application of, clearly established Federal law.
"Clearly established Federal law" includes only holdings of Supreme Court decisions and does not include dicta. Williams v. Taylor, 529 U.S. 362, 412 (2000); Yung II, 296 F.3d at 135. A decision is contrary to clearly established Federal law if it "contradicts the governing law" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from" the Supreme Court.Williams, 529 U.S. at 405-06; Yung II, 296 F.3d at 135. An unreasonable application of federal law is more than an incorrect application, but the petitioner need not show that all reasonable jurists would agree that a state court determination is incorrect in order for it to be unreasonable. Williams, 529 U.S. at 409-12; Yung II, 296 F.3d at 135. Instead, a federal court should review a state court's interpretation of federal law using a standard of objective reasonableness. Williams, 529 U.S. at 409; Yung II, 296 F.3d at 135.
Objective unreasonableness includes an unreasonable refusal "to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Yung II, 296 F.3d at 135 (quoting Kennaugh v. Miller, 289 F.3d 36, 45 N.2 (2d Cir. 2002)). The "increment of incorrectness beyond error . . . need not be great; otherwise habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence."Id. (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent. Id. (citing Mask v. McGinnis, 252 F.3d 85, 90 (2d Cir. 2001)).
II. Propriety of State Court's Closure in Light of Supreme Court Precedent
In Yung II, the Second Circuit remanded because it appeared that this Court had incorrectly measured the reasonableness of the state court's determination to permit closure by Second Circuit precedent as opposed to looking solely to Supreme Court precedent, as AEDPA requires and as discussed in Yunq I, Yung II, and Part I, supra. Yung II, 296 F.3d at 135-136. Because the opinion in Yung I merely looked to Second Circuit precedent as an example of how the Supreme Court precedent has been unreasonably applied by state courts, e.g., O'Brien v. Dubois, 145 F.3d 16, 25 (1St Cir. 1998) ("To the extent that inferior federal courts have decided factually similar cases, reference to those decisions is appropriate in assessing the reasonableness vel non of the state court's treatment of the contested issue.") (cited in Davis v. Johnson, 49 F. Supp.2d 160, 162 (W.D.N.Y. 1999)), the same result will obtain in this opinion as the last.
It is important to note, however, that "the fact that one court or even a few courts have applied the precedent in the same manner to close facts does not make the state court decision `reasonable.'" Valdez v. Ward, 219 F.3d 1222, 1229-30 (10th Cir. 2000), cert. denied, 532 U.S. 979, 121 S.Ct. 1618, 149 L.Ed.2d 481 (2001). Thus, even if Woods v. Kuhlmann, 977 F.2d 74 (2d Cir. 1992) (upholding trial court's decision to close courtroom to family members) were not distinguishable from the instant case, the State's reliance on it to "conclusively show the reasonableness of the closure ruling," Responds.' Mem. at 2, is misplaced. See Yung I, 143 F. Supp.2d at 272 for a discussion of whyWoods is distinguishable.
The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . public trial . . . ." U.S. Const. Amend. VI; Duncan v. Louisiana, 391 U.S. 145, 148 n. 10, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (holding that right to public trial applies to states through the Fourteenth Amendment). This right, while fundamental, is not absolute, and may be qualified by a showing of sufficiently important countervailing interests. Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)
In 1948, the Supreme Court decided In re Oliver, in which it reversed a contempt conviction imposed by a judge in a proceeding closed to everyone except a prosecutor and court reporter. In re Oliver, 333 U.S. at 259, 68 S.Ct. 499. The Court held that this closure violated the defendant's right to a public trial, id. at 272-73, 68 S.Ct. 499, after noting that "without exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he is charged." Id. at 271-72, 68 S.Ct. 499.
Almost forty years later, the Supreme Court determined that the right to public trial was not absolute and established the four-part test applicable to a complete courtroom closure: (1) the prosecution must show an overriding interest likely to be prejudiced by an open courtroom; (2) the closure must be no broader than necessary; (3) the court must consider alternatives to a complete closure; and (4) the court's findings must be adequate to support the closure. Waller, 467 U.S. at 45, 104 S.Ct. 2210.
The Supreme Court has never applied the Waller factors in the context of a state court's exclusion of family members. Yung II, 296 F.3d at 136. In addition, the portion of In re Oliver that refers to family members is dicta. Id. That does not, however, mean that the state court could not unreasonably apply the strictures of those opinions in a case involving family members. Id.
The only prong of the Waller test that is truly at issue here is whether the court made findings adequate to support the closure as to the three female relatives as Opposed to a more general closure to the remaining public. This question asks, as a matter of law, "whether the presumptively correct [factual] findings [of the trial court] are adequate to the support the closure." Yung II, 296 F.3d at 137.
This Court adopts the Second Circuit's determination that, "[i]n light of In re Oliver, . . . it would be an unreasonable interpretation ofWaller, or, at a minimum, an unreasonable failure to extend Waller, not to require a heightened showing before excluding family members." Yung II, 296 F.3d at 136; see also Sevencan v. Herbert, 152 F. Supp.2d 252, 264 (E.D.N.Y. 2001) (finding the need for "a specific connection between family members and the need for closure" in light of In re Oliver). This heightened showing obviously does not require the exact factual predicate that was outlined in Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994).Id.
After hearing the undercover's testimony, the trial court determined that the presence of the family members would "mak[e] it easier" for others to identify the undercover and ruled that closure was appropriate. Under AEDPA, that finding is presumed to be correct. § 2254(e)(1). Thus, the question before this Court is whether the presumptively correct factual finding that the presence of family members would make it easier for others to identify the undercover is sufficient to justify closing the courtroom to the three female relatives. While this justification is sufficient to justify closure to the public at large, it does not meet the heightened showing for family members as required by In re Oliver and Waller.
At the Hinton hearing, the undercover testified to a generalized fear that his identity would be disclosed, and his safety thereby compromised, if the courtroom were not closed during his trial testimony. He also testified to a single threat nine months earlier from a person not related to Yung who was on trial during Yung's trial. The threat was not related to Yung's case. The undercover also stated that he had two separate, pending investigations in the same Lower East Side neighborhood where Yung had been arrested.
On cross-examination, when asked whether he had any reasons to fear Yung's family members, excluding Yung's brother David, the officer replied that he "can't really answer that" because it was unclear whether Yung's three female relatives knew the person who had threatened him. He stated that he was certain, however, that the person knew Yung and his brother David.
Because Yung's counsel conceded that the attendance of David was not at issue, the evidence going to David's potential to threaten the safety of the undercover — on which the State relies (Responds.' Mem. at 9) — does not forward their motion in the absence of some evidence that the three female relatives would somehow aid or abet David.
The state court failed to require any sort of heightened showing with regard to the family members' presence. It was objectively unreasonable to close the court to Yung's three female relatives on the basis of the undercover's generalized fear. The trial court was required to make particularized findings about ways in which the presence of the three female relatives would impinge on the undercover's safety and mission. "[T]he need to make specific findings about the potential risks posed by family members does not mean that family members can never be excluded."Sevencan v. Herbert, 152 F. Supp.2d 252, 263 (E.D.N.Y. 2001). Such a heightened showing could consist of any number of factual scenarios, including those determined to be dispositive in Vidal, i.e., that the family members would encounter the undercover or that they had implicitly or explicitly threatened harm to the undercover. It is possible that other facts could also justify closure to family members, such as the hypothetical in Yung II that a family member was "an organized crime boss with a known propensity for ordering assassinations of inconvenient witnesses . . . ." Yung II, 296 F.3d at 136 n. 1; see also Woods v. Kuhlmann, 977 F.2d 74 (2d Cir. 1992) (denying habeas relief to petitioner whose relatives were excluded after trial judge considered evidence that family members had intimidated testifying witness). Such facts are not on the record before this Court, however, and that is the intractable difficulty with the trial court's determination that the three female relatives should be excluded. To permit such bare-bones findings to satisfy the heightened requirement established by Waller in light of In re Oliver would essentially "sanction a rule of per se closure for undercover officers" even for family members, a concept rejected by the New York Court of Appeals in People v. Martinez, 92 N.Y.2d 436, 443 (1993) (Kaye, C.J.) (rejecting in a buy-and-bust case the State's "perfunctory showing" that the undercover worked in the Bronx and general dangers inherent in undercover narcotics work where no link was made between officer's fear for his safety in the Bronx area and open-court testimony).
Outside of the Hinton hearing and during his direct examination, Yung testified that from his release in jail in May 1991 to his arrest in the instant matter in 1992, he had lived in an apartment on the Lower East Side with his brother, his parents, his girlfriend and his child. (Tr. 433-36.) The State thus suggests that the inference could be made that Yung's mother, sister-in-law and girlfriend continued to live in the Lower East Side at the time of the trial two years later, in November 1994. Yet the State has failed to point to any evidence of the residence of Yung's sister-in-law, nor to any evidence that Yung's mother and girlfriend remained in the apartment. Further, while Yung and his brother had at one time kept illegal materials in that apartment, the trial testimony that the State points to suggests that there was no such material there at the time of Yung's arrest and meetings with the undercover. Id. Thus, it is also not clear that the family had knowledge that Yung continued to deal in drugs and guns. Finally, the State points to testimony that Yung gave his family $3,000 in drug proceeds at the time of his arrest. (Tr. 460.) There was no evidence, however, that the family knew that the money had come from Yung's illegal activities, and $3,000 is not such a large sum that it would be reasonable to assume that it only could have come from illegal activities. Thus, ignoring the fact that the trial court did not elicit this information at the time of theHinton hearing, it is not sufficient to create a nexus between the three female relative's presence in the courtroom and the undercover's fear for his safety.
As a result, the closure was a violation of Yung's Sixth Amendment right to a public trial.
III. A Nieblas Hearing Is Not Required
In Nieblas v. Smith, 204 F.3d 29 (2d Cir. 1999), the Second Circuit established when it would be appropriate for a district court to hold an evidentiary hearing requested by the State (as opposed to one requested by petitioner, which is governed by 28 U.S.C. § 2254(e)(2)) in response to a habeas petition. The Court suggested two types of situations where such a request should be granted: (1) a perfunctory objection to closure by the petitioner or (2) a change in the case law occurring between the state court proceeding and the filing of the habeas petition. Id. at 32; see also Yung II, 296 F.3d at 137. The State argues that a hearing should be held in light of the latter, that there has been a change in case law.
The State appropriately does not argue that the first factor applies. The record demonstrates that defense counsel ably objected to the closing, aggressively cross-examined the undercover and argued at length that Yung's three female relatives should be allowed to observe the undercover's testimony. In addition, the State refused the opportunity to call other witnesses or introduce other evidence, stating that it would rely on the record, which "speaks for itself."
Even without reaching the intricacies of the parties' debate, it is held as a general matter that when a petitioner proceeds and succeeds under § 2254(d)(1), as Yung has done, the second type of situation described in Nieblas cannot exist. As discussed above, § 2254(d)(1) provides that habeas relief may not be granted unless the state adjudication was contrary to "clearly established Federal law, as determined by the Supreme Court." If a state adjudication is contrary to "clearly established Federal law, as determined by the Supreme Court," it cannot also be said that a change of law has occurred between the adjudication and the filing of the petition such that the state court would have behaved differently. As a result, the State is as a general matter not entitled to a hearing under Nieblas because Yung was successful pursuant to § 2254(d)(1)
Nieblas was a pre-AEDPA case and thus did not face the same potential difficulty. This holding also does not affect the state's right to request evidentiary hearings on petitions brought under other subsections of § 2254 that do not involve rulings in contravention of clearly established Federal law.
In any case, by the time of Yung's Hinton hearing, the New York Court of Appeals had already at least implicitly emphasized the importance of permitting family members to attend during otherwise closed testimony on at least two occasions. E.g., Martinez, 82 N.Y.2d at 444; People v. Kin Kan, 78 N.Y.2d 54, 58 (1991). These cases had also been relied upon for this proposition by the time of the Hinton hearing as well.E.g., People v. Bouche, 617 N.Y.S.2d 715 (1st Dep't Oct. 20, 1994) (relying on Kin Kan for proposition that since "there was no showing that the undercover's life or livelihood had been threatened by the family, "ordinarily . . . defendant would have been entitled to have family members present during the undercover's testimony"); People v. Gross, 583 N.Y.S.2d 832 (1st Dep't 1992) (finding after discussing Kin Kan that closure was not prejudicial because "[t]here was certainly no question of ejecting the defendant's family or anybody else having a personal interest in the proceedings"). Moreover, the Nieves Court specifically discussed Kin Kan, Nieves, 90 N.Y.2d at 429, 430, 431 and distinguished the situation in Martinez, id. at 429. In light of these precedents, it cannot be said that Nieves so drastically changed or even "clarified" the law of closure that the trial court's failure to obtain more support for its ruling was excusable.
In Martinez, the defendant did not seek to have family members present, but the Court noted that if he had done so (or if family or other spectators had been present in the courtroom prior to the time of theHinton hearing), the trial court would have had to consider explicitly "whether the closure is broader than necessary, to explore reasonable alternatives to closure, and to make findings adequate to support closure." 82 N.Y.2d at 444 (stating that trial court could have considered alternative measures such as stationing a guard to take names at the courtroom door or utilizing a screen to protect witness's identity).
Kin Kan involved gang-related, large-scale drug trafficking in the Chinatown section of New York City. Id. at 56. The State moved to close the courtroom during the testimony of a key cooperating witness-cum-accomplice to Kan's crime. The witness feared retaliation from Kan's "people," but did not fear Kan' s family. Kan knew the witness, who had appeared in court with her and in the presence of her family members on several occasions. Id. at 58. The Court held that the exclusion of the family members was broader than constitutionally tolerable and constituted a violation of Kan's "overriding" right to a public trial. Id. "The trial court did not specify or justify closure with respect to Kan's family on the record, despite her counsel's specific objection in this regard, and we discern no record basis for doing so."Id. at 59. The Court looked to the fact that Kan's family had not attempted to intimidate or harass the witness and that the witness was not afraid of the family and had testified before the family on several occasions in open court. Id. In addition, the Court looked to the strong interests of Kan, who did not speak English, to have her family present.
As a result, while Nieves made explicit the requirement that the closure of courtrooms to family members required heightened scrutiny, that was already the law of the state and the clearly established Federal law. While the State has spoken of the "windfall" to Yung should he be granted a new trial, it ignores the repercussions that would follow if a state court were allowed to supplement its factual findings in the absence of some showing of excusable error on its part, particularly where, as here, the State admits that it might have had other evidence to support closure at the time of the hearing but simply decided not to present it. If federal courts routinely grant a new hearing, regardless of fault in a potentially successful habeas petition, the compunction to ensure that the original hearings were as complete as they should be would be relieved. As a result, the essential fairness and efficiency of the process would be irrevocably hampered. Because of these policy reasons and because the State failed to demonstrate either of the two situations described in Nieblas, this Court chooses not to exercise its broad discretion to hold another hearing. E.g., Nieblas, 204, F.3d at 32 ("[W]hen the district court chooses to hear additional evidence on behalf of the state its discretion remains broad)
Because the State has not shown that the state court's error in failing to make adequate findings was excusable, no supplemental hearing shall be held.
Conclusion
For the foregoing reasons, the trial court's closure of the courtroom to Yung's three female relatives was not reasonable under Oliver andWaller, and a supplemental evidentiary hearing is not required underNieblas. The case shall be remanded with instructions to release Yung unless he is retried within a reasonable time.