Petition for Writ of Certiorari — Zaire Paige, Petitioner v. Stewart Eckert, Superintendent, Wende Correctional Facility, et al.
Supreme Court briefAug 11, 2021
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IN THE SUPREME COURT OF THE UNITED STATES
Supreme Court, U.S.
FILED
AUG 1,1 2021
ZAIRE PAIGE,
OFFICE OF THE CLERK
PETITIONER,
—AGAINST—
STEWART ECKERT,
Superintendent, Wende Correctional facility,
and LETITIA JAMES, Attorney-General State of New York,
RESPONDENTS.
ON PETITION FOR A WRIT OF CERTIORARI TO THE U.S.
COURT OF APPEALS, SECOND CIRCUIT
BRIEF FOR PETITIONER
RICHARD JOSELSON
LORCA MORELLO
ATTORNEYS FOR PETITIONER
THE LEGAL AID SOCIETY
CRIMINAL APPEALS BUREAU
199 WATER STREET
New York, NY 10038
212-577-3451
RJoselson@Legal-Aid . ORG
LMorello@Legal-Aid . org
RECEIVED
SEP 1 * 2021
it
QUESTION PRESENTED
Whether petitioner was denied his constitutional right to
be present at his trial,
single, brief,
where the judge ejected him after a
spontaneous, nonviolent courtroom outburst during
a witness's testimony and never let him return for the rest of
his
trial,
or
even
follow
it
remotely,
despite
petitioner's
repeated assurances that there would be no further disruptions;
and whether the Second Circuit's denial of relief was based on
an unwarranted deference to the state court's factual and legal
determinations,
thereby undermining
the
fundamental
set forth in Illinois v. Allen, 397 U.S. 337 (1970).
l
principles
LIST OF PARTIES
All parties appear in the caption of the case on the cover
page.
RELATED CASES
People v. Paige, 134 A.D.3d 1048 (N.Y. App.Div. 2015).
Judgment entered Dec. 23, 2015.
People v. Paige, 23 N.Y.3d 1073 (2016). Leave to
appeal denied May 15, 2016.
i
Paige v. Eckert, Dkt. No. 16-CV-6802 (MKB). Judgment
entered July 9, 2020.
Paige v. Eckert, 2021 WL 1115610 (2d Cir. 2021) Dkt.
No. 20-2296. Judgment entered March 24, 2021.
Paige v. Eckert (2d Cir. 2021). Rehearing denied May
12, 2021.
TABLE OF CONTENTS
TABLE OF AUTHORITIES
v
OPINIONS BELOW
1
JURISDICTION
1
CONSTITUTIONAL AND STATUTORY PROVISIONS
2
STATEMENT OF THE CASE
2
Introduction
2
ii
Procedural History
5
Trial
6
Petitioner's Two Instances of Being Produced Late
8
The Judge's Advice that Petitioner Testify, Petitioner's
Outburst, and Subsequent Testimony in His Absence.............
9
State Appellate Court Decision
17
District Court Decision
17
Second Circuit Decision
19
Habeas Principles
20
REASONS FOR GRANTING THE PETITION
21
The Circuit Court's Deference to the State Courts'
Unreasonable Factual and Legal Determinations
Eviscerates the Holding of Allen ...................................
21
The Circuit Erroneously Deferred to Factual Conclusions
Unsupported by the Record...............................................................
23
The Circuit Erroneously Deferred to the State Court's
Ignoring the Holding of Allen..................................................
29
The Denial of Petitioner's Right to Be Present Was
Not Harmless.................................................................................
32
CONCLUSION
35
CERTIFICATE OF COMPLIANCE
35
INDEX TO APPENDICES
APPENDIX A Opinion of the U.S. Court of Appeals, Second Circuit
APPENDIX B Opinion of the U.S. District Court, Eastern District
of N.Y.
in
APPENDIX C Order of the Second Circuit denying rehearing and
reargument.
APPENDIX D Opinion of the N.Y. Appellate Division, Second
Department.
APPENDIX E Denial of Permission to Appeal of the N.Y. Court of
Appeals.
i
5
;
i
IV
j
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Bankhead v. LaVallee, 439 F.Supp 156 (E.D.N.Y. 1977)
24
Batson v. Kentucky, 476 U.S. 79 (1986)
.30
Brecht v. Abrahamson, 507 U.S. 619 (1993)
Brumfield v. Cain, 576 U.S. 305 (2005)
32, 33
21, 23, 28, 32
Cullen v. Pinholster, 563 U.S. 170 (2011)
21
Diaz v. U.S., 223 U.S. 442 (1912)
33
Dickerson v. U.S., 530 U.S. 428 (2000)
29
Ford v. Wainwright, 477 U.S. 399 (1986)
29
Glebe v. Frost, 135 S.Ct. 429 (2014)
33
Harrington v. Richter, 562 U.S. 86 (2011)
20, 23
Illinois v. Allen, 397 U.S. 337 (1970)
passim
Johnson v. California, 545 U.S. 162 (2005)
Miller-El v. Dretke, 545 U.S. 231 (2005)
30
21, 23, 28
Norde v. Keane, 294 F.3d 401 (2d Cir. 2002)
19
Paige v. Eckert, 16-CV-6802 (MKB)
6
Paige v. Eckert, 2021 WL 1115610 (2d Cir. 2021)
Panetti v. Quarterman, 551 U.S. 930 (2007)
1, 6
27, 28, 29
Riggins v. Nevada, 504 U.S. 127 (1992)(Kennedy, J.,
concurring) ......................................................................................
34
Snyder v. Massachusetts, 291 U.S. 97 (1934)
33
Strickland v. Washington, 466 U.S. 668 (1984)
29
Taylor v. U.S., 414 U.S. 17 (1973)
27
Tennard v. Dretke,
542 U.S. 274 (2004)
v
5, 30
U.S. v. Canaday, 126 F3d 352 (2d Cir. 1997)
33
U.S. v. Fontanez, 878 F.2d 33 (2d Cir. 1989)
18
U.S. v. Fontanez, 878 F2d 33 (2d Cir. 1989)
33
U.S. v. Tureseo, 566 F.3d 77 (2d Cir. 2008)
27
U.S. v. Ward, 598 F.3d 1054 (8th Cir. 2010)
30
Williams v. Taylor, 529 U.S. 362 (2000)
29
State Cases
People v. Epps, 37 N.Y.2d 343 (1975)
21, 28, 34
People v. Paige, 134 A.D.3d 1048 (N.Y. App.Div. 2015)
People v. Paige, 21 N.Y.3d 1073 (2016)
People v. Paige, 21 N.Y.3d 1137 (2016)
passim
6
(Rivera, J.)
People v. Parker, 57 N.Y.2d 136 (1982)
6
12, 13, 27, 28
STATUTES
28 U.S.C. 1254(1)
1
28 U.S.C. 2254(d)(1)
20
28 U.S.C. 2254(d)(1),(2)
4
Antiterrorism and Effective Death Penalty Act (AEDPA)
20, 21
CONSTITUTIONAL PROVISIONS
U.S. Constitution Sixth Amendment
2
OTHER AUTHORITIES
Gullie B. Goldin, Presence of the Defendant at Rendition
of Verdict in Felony Cases, 16 Columbia L.Rev. 18
(1916) ....................................................................................................
33
http://nysdoccslookup.doccs.ny.gov/
7
vi
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR CERTIORARI
Petitioner
Zaire
Paige petitions
for
a writ
of
certiorari
to
review the judgment below.
OPINIONS BELOW
The
opinion of the United States
court of appeals
appears
at
Appendix A to this petition and is reported at 2021 WL 1115610
(2d Cir. 2021).
The
opinion
of
the
United
States
district
court
appears
at
i
Appendix B and is unreported.
The
opinion
of
the
highest
state
court
to
review
appears at Appendix D and is reported as People v.
the merits
Paige,
134
A. D.3d 1048 (N.Y. App.Div. 2015).
JURISDICTION
The
case
United
on March
States
24,
2021.
Court
of
Appeals
A petition
filed and denied on May 12,
for
decided
petitioner's
rehearing was
timely
2021. A copy of the order denying
rehearing appears at Appendix C. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(l).1
1 Due to the COVID crisis, this Court has extended the time for
filing certiorari petitions to 150 days after the lower court's
denial of a timely petition for rehearing (Order, March 19,
2020) and permits the filing of a single paper copy of the
document (Order, April 15, 2020), effective for filings prior to
September 2021 (Order, July 19, 2021).
1
CONSTITUTIONAL AND STATUTORY PROVISIONS
The
Amendment
relevant
constitutional
of
U.S.
the
criminal prosecutions,
Constitution,
wherein
which
the
is
reads:
Sixth
"In
all
the accused shall enjoy the right to a
speedy and public trial,
district
provision
the
by an impartial jury of the State and
crime
shall
committed,
which
district shall have been previously ascertained by law,
and to
be informed of the nature and cause of the accusation;
to be
confronted with the witnesses
have
been
against him;
to have compulsory
process for obtaining witnesses in his favor,
and to have the
Assistance of Counsel for his defense."
STATEMENT OF THE CASE
Introduction
Zaire Paige,
age 23,
was sentenced to what is effectively
life without the possibility of parole after a trial from which
he was
ejected after a
single,
brief,
spontaneous,
nonviolent
courtroom outburst.
He was never allowed to return despite his
repeated
promises
to
conduct
outburst,
he
sat
quietly through many days
He was never alleged to be
had
pretrial proceedings.
himself
properly.
Prior
to
the
of
trial
and
a
threat
to
security. Yet, when defense counsel requested that petitioner at
least be allowed to watch his trial remotely - which would have
resolved
any possible
concerns
about
2
courtroom decorum
the
judge retorted,
"Go to the Court of Appeals and tell me that I
am wrong" (1174).2
As a result, petitioner was forced to be absent for crucial
police
testimony,
summations,
numerous questions,
the
jury
the judge's responses,
charge,
the
jury's
and the rendering of
the verdict.
The notion of a young man sitting in the courthouse pens
begging to be admitted to his own trial where he faces a life
sentence
should be abhorrent to
anyone charged with upholding
the Constitution.
i
Half a century ago,
present
is
so
fundamental
reasonable presumption
397 U.S. 337
whereby
a
this Court held that the right to be
that
against
courts
its
must
indulge
Illinois
waiver.
Allen,
(1970). Allen created a narrowly tailored exception
defendant
presence by conduct
may
constructively
so disruptive
waive
his
reclaim
this
right
"as
right
to
"that his trial may not be
carried on with him in the courtroom." Even then,
course"
v.
every
soon
as"
he
"promises" to conduct himself properly." Id.
is
he may "of
"willing"
at 343-344.
or
Thus,
exclusion is not an all-purpose disciplinary tool for punishing
annoying conduct.
from his trial,
The "deplorable" remedy of "remov[ing]
a man
even for a short time," is limited to when his
2 Numbers in parentheses are the pages of the trial transcript on
file with the Clerk of the Court in the Second Circuit.
3
presence
wholly
in
the
courtroom makes
impossible
to
it
"exceedingly
difficult
or
on
the
trial."
at
347
denial
of
relief
for
this
presence
was
based
carry
Id.
338,
(emphasis added).
The
state
deprivation
courts'
of
the
right
to
sweeping
on
j
an
unreasonable determination of the facts and was contrary to, and
an
unreasonable
U.S.C.
application
2254(d) (1), (2) .
allegations
of
the
holding
Allen.
of
See
28
The trial court had recited a litany of
against petitioner to justify denying readmission.
i
i
Although these allegations are demonstrably contradicted by the
record,
the Appellate Division relied on them to conclude that
i
petitioner
had
already
waived
his
right
to
be
present
even
i
before
the
outburst.
The
findings on habeas
review.
habeas
no
review
are,
federal
courts
deferred
to
these
As deferential as the standards of
deference
is
accorded
to
factfindings
i
contradicted by the record.
Moreover,
even
if
supported by the record,
the
judge's
allegations
had
been
none of them constituted conduct that
made it "exceedingly difficult or wholly impossible to carry on
the trial" with petitioner in the courtroom. Allen at 338.
It is an unreasonable application of Allen to extend its narrow
definition of the kind of disruption that waives the right to
presence to encompass whatever conduct the judge finds annoying.
4
i
Furthermore,
Allen
holds
that
a
defendant
who
loses
his
right to presence through disruption can "of course" reclaim it
if he is "willing" or promises to conduct himself properly. The
Second
Circuit
has
impermissibly
added
a
restrictive
gloss
whereby a defendant's promise may be rejected unless he can meet
the burden of "satisfactorily demonstrat[ing]" that he will not
be
disruptive
again.
That
is
an
unreasonable
application
of
Allen's holding. See, e.g., Tennard v. Dretke, 542 U.S. 274, 283
(2004)(unreasonable application of Supreme Court holding to add
"restrictive
required
gloss"
or
procedures).
"screening
While
a
test"
court
to
may
constitutionally
arguably
reject
a
defendant's repeatedly broken promises, Allen does not permit a
court
to
refuse
readmittance
in
the
face
of
promised
good
behavior based on animus, as was demonstrably the case here. To
uphold such a sweeping and unreasonable deprivation of the right
to
presence
is
to
put
the
principles
of
Allen
at
risk.
Petitioner requests this Court to grant certiorari.
Procedural History
Petitioner was convicted after a jury trial of one count of
second-degree
murder
first-degree assault
degree
assault
(N.Y.P.L.
125.25(1));
three
counts
of
(N.Y.P.L. 120.10(01)); one count of second-
(N.Y.P.L.
120.05(2));
and one count
of
second-
degree criminal possession of a weapon (N.Y.P.L. 265.03(3)).
5
He was
sentenced to a total prison term of 107
years to
life: 25 years to life on the murder count; consecutive terms of
25 years plus 5 years of post-release supervision
(PRS)
on each
of the first-degree assault counts; 7 years plus 5 years of PRS
on the second-degree assault count; and a concurrent term of 15
years plus 5 years of PRS on the weapons count
(DelGiudice, J. ,
at trial and sentencing).
Petitioner appealed as a poor person to the N.Y.
Court Appellate Division,
conviction
on
1048
App.Div.
(N.Y.
December
Second Department, which affirmed the
23,
2015).
People v.
(2016) ;
People v.
2015.
The
leave to appeal on June 24,
1073
Supreme
N.Y.
2016.
Paige,
27
Paige,
Court
of
People v.
N.Y.3d
134
A.D.3d
Appeals
denied
Paige,
1137
(2016)
27 N.Y. 3d
(Rivera,
J.) .
Petitioner timely filed a habeas petition
District of New York.
Brodie
denied
the
On July 9,
petition
but
2020,
in the Eastern
the Honorable Margo K.
granted
a
certificate
of
appealability. Paige v. Eckert, 16-CV-6802 (MKB).
The Second Circuit denied the habeas petition in a Summary
Order on March 24,
Cir.
2021).
2021.
Paige v.
Eckert,
2021 WL 1115610
(2d
The court denied petitioner's motion for rehearing
on May 12, 2021.
6
Trial
In
the
early
afternoon
of
October
commercial street in Fort Greene,
standing
on
the
sidewalk
after
27,
2008,
on
a
busy
Brooklyn, Lethania Garcia was
a
court
appearance,
having
a
conversation with a group of other young men. Two men approached
him firing shots.
He fled into a hair salon where the gunmen
followed and shot him dead. The bullets injured four uninvolved
bystanders. The gunmen escaped in a car.
The lead detective testified that the police believed that
Garcia,
who
had
murdered
Teddy
"Problem
McNichols
Solver"
two
years
tattooed
on
earlier.
his
arms,
had
They
traced
the
getaway car to Paul Wint, whom they arrested the next day. Wint
purported
to
identify
Crawford as the gunmen,
petitioner
and
co-defendant
Robert
saying that he himself was merely the
driver.
Wint was indicted for second-degree murder, carrying a life
sentence.
He testified against petitioner and the co-defendant
in exchange for an offer from the Brooklyn District Attorney's
Office of a plea to reduced charges with a sentence of 4 to 12
years.3
Wint's
credibility
was
repeatedly
impeached
for
his
criminal record and numerous instances of low dealing, to which
3 Wint was released after serving 4 1/2 years.
See http://nysdoccslookup.doccs.ny.gov/
7
he unabashedly admitted. He also admitted to writing to another
Rikers
Island
jail
detainee
that
his
accusations
were
fabricated.
Apart from Wint's testimony, there were no identifications,
statements or relevant forensic evidence. Even the relevance of
the
phone
records
purportedly
connecting
petitioner
to
the
shooting depended on crediting Wint's claim that petitioner was
using a phone that day that was registered to someone else.
Petitioner's Two Instances of Being Produced Late
On
the
second
day
of
his
2-week
trial,
petitioner
was
;
produced to court 50 minutes late. Corrections officers told the
judge that petitioner had caused the delay by wanting to wear
the clothes that his family had brought him for trial. The judge
berated
petitioner
with
haberdashery," and,
comments
such
as,
"This
is
not
a
"I will not permit clothes to be delivered
to you during the trial.
If you wear the orange jumpsuit,
you
wear the orange jumpsuit" (157).
Defense
follow
counsel
procedures
by
explained
taking
that
the
the
family
had
tried
to
clothes
to
Rikers
the
day
before, but that Corrections had refused to accept them because
petitioner was still in transit from court
(158).4 Nevertheless,
4 This Court may take judicial notice that the Rikers Island jail
is at a considerable distance from the Brooklyn Courthouse.
8
t
Corrections had apparently accepted the clothes when the family
brought them to the courthouse that morning.
A few days later, petitioner was produced 15 or 20 minutes
late from a 10-minute break.
The judge said he was told that
petitioner had caused the delay by "disrobing during break." He
again berated petitioner, threatening,
"Next time the case will
proceed in your absence because I will consider it a voluntary
tactic to delay the proceedings," and "You do that again, I will
not have you in the courtroom or I will bring you out in cuffs
in
front
of
the
jury.
Do
you
understand
that?"
Petitioner
answered, "Yes, I do." (643-644).
The record shows no further incidents prior to the
outburst.
The Judge's Advice that Petitioner Testify,
Petitioner's Outburst, and Subsequent
Testimony in His Absence.
The
officer
prosecutor
that
proposed
petitioner
to
had
elicit
allegedly
from
made
the
an
arresting
incriminating
statement. When defense counsel objected to the lack of notice,
the
judge
answered,
"The best
source
for
your
information
is
your client himself. If he denies the statement he can take the
stand" (948). No statement was introduced.
about
The
prosecutor
had
the
officer
an
unrelated,
still-pending
testify,
case
where
over
he
objection,
had
arrested
petitioner in a house where there were guns of the same caliber
9
as
those
used
in
the
shooting.
This
provoked
petitioner's
outburst, detailed below, and his removal from the courtroom.
With petitioner absent, the officer testified about chasing
and capturing petitioner several months after the shooting.
attempted to
explain how petitioner
with a handcuff key in his lung
ended up
in the
He
hospital
(Police Officer Rashan LaCoste:
977-979).
The
lead
detective
gave
handcuff
key,
as
well
connection
to
the
decedent
as
further
testimony
about
the
petitioner's
alleged
motive
and
(Detective
Thomas
Donohue:
1038-
1072) .s
The outburst
occurred when the arresting officer read to
the jury a list of guns recovered in the unrelated case and was
prompted
by
the
prosecutor
to
add
that
he
also
recovered
a
banana clip.
PETITIONER: The shit wasn't mine, It wasn't
at my house.
COURT: Be quiet. If you want to testify, you
can take the stand.
PETITIONER: He's fucking lying.
COURT: Officer, take charge of the
defendant.
PETITIONER: Come on, man. You are sitting up
there fucking lying, man.
5 The Appellate Division found that the testimony about the guns
and the handcuff key should not have been admitted but that the
errors were harmless. People v. Paige, 134 A.D.3d 1048, 10561057 (N.Y. App.Div. 2015).
10
i :
COURT: Take charge of the defendant.
PETITIONER: He is sitting up there fucking
lying.
COURT: Officer, take charge of the
defendant.
PETITIONER: Get the fuck out of here, man
(979).
Petitioner was
the
day,
saying
removed.
not
to
The
hold
judge dismissed the
the
outburst
jury for
against
petitioner
the judge said,
"I consider
(980) .
As soon as the jury was gone,
Mr.
Paige's outburst contemptuous." He told defense counsel to
speak
to
petitioner
over
the
weekend
to
see
if
petitioner's
presence "will be worthwhile" (981).
The
judge,
observing that defense
make a record to support your client
counsel was
"trying to
if there is an appeal,"
stated,
"I want to support the record so the Appellate Courts
realize
the tenure
[sic]
(984) .
The
accordingly
judge
of what
is
began
going
making
on
in
his
this
court"
own
record,
alleging that petitioner was "consistently late," had made them
late
"at
all times,"
and had disobeyed "repeated admonitions"
not to communicate with the audience:
You know the record should be clear he created
issues about clothing and apparel, okay, was
consistently late, would take his clothes off
during luncheon recesses and insure we were late
at all
times,
he consistently attempted to
11
communicate with members of the audience despite
my repeated admonitions not to do it, and now he
creates an outburst, even though I admonished him
not to talk, he resisted being cuffed by the
officers, used expletives, raised his voice in
quite a threatening manner.
He is doing everything that he can to frustrate
these proceedings.
The judge suggested that petitioner might not be in court
on the following Monday,
saying, "I wouldn't put it past him to
make up some excuse through Corrections" (983).
He
suggested
that
petitioner
could
be
readmitted
if
he
assured the court that he would "act like a gentleman," although
"As
far as
I'm concerned,
he waived his right to be present"
(983-984) .
On the
following Monday morning the judge stated that he
was told by "court personnel" that petitioner."decided he wanted
to get
a haircut
and is
"suffice it to say,
delaying these proceedings,"
so that
he's violated the rules under Parker,
and
the case will proceed without him" (990).6
Defense
counsel
immediately
petitioner to be present
me
put
this
on
the
(991).
record,"
asked
the
judge
The judge answered,
and
expatiated
on
to
allow
"Well,
how
let
defense
counsel had opened the door to the arresting officer's testimony
6 Referring to People v. Parker, 57 N.Y.2d 136 (1982), requiring
courts to warn defendants that their trial will proceed if they
voluntarily absent themselves.
12
about
the
unrelated,
pending
case.
He
then
described
petitioner's outburst as "shouting obscenities at the witness"
and refusing the court's "lawful directive" to "be quiet" (992).
The
refused
judge
to
repeated
come
to
that
court
"my
staff"
"because
said
he
that
petitioner
allegedly
wanted
a
haircut." He ruled that since petitioner had signed the Parker
warnings, the trial could proceed without him. He again accused
petitioner of "consistent disrobing between court adjournments"
to delay the proceedings,
as well as a "persistent pattern of
disruptive
an
conduct,"
and
"all-around
general
being hostile to this Court." Based on this,
the
demeanor
judge
as
found
that petitioner was voluntarily absent (994) .
The
contradict
judge
faulted
defense
counsel
for
being
"the
reasons
given
by
court
staff"
the
unable
to
for
why
petitioner was not timely produced (994).
Defense counsel renewed his request to readmit petitioner,
saying,
"If Mr.
Paige is produced,
I understand he's ready to
apologize to the Court." Counsel referred to case law regarding
the
obligation
to
readmit
and
stated
that
petitioner
would
promise not to repeat the outburst. He noted that petitioner had
been "a gentleman" until the outburst and requested that he be
given one more chance (1026-1027).
The judge again accused petitioner of doing "everything to
delay and disrupt these proceedings" so that an apology was not
13
"worthwhile"
(1027).
He
told
the
jury
"to
disregard
the
defendant's conduct and his absence" (1029).
After the People rested, defense counsel informed the court
that petitioner had been produced to the courthouse at 12:20. He
had
not
intentionally
barber as alleged,
V
bus
from Rikers.
delayed
his
transport
going
to
the
but had simply not been taken on the first
Counsel explained,
because it was his fault.
from the barber,
by
"He
said that
it was
not
He said that he was ready to leave
he didn't care about the haircut and that he
wasn’t taken on the first bus" (1170).
Despite this
factual
now asserting that his
dispute,
the
judge made no
information came
inquiry,
from "the Corrections
Department." The judge accused petitioner of stripping "naked"
during
a
lunch
break.
He
family
to
bring
clothes,
derided
saying,
petitioner
"Another
doesn't like the clothes that he has,
day
for
asking
his
he
decides
he
so he wants his momma to
bring him clothes." The judge concluded, "And now when I get the
information that he didn't want to come to
Corrections Department,
court through the
I am supposed to believe him as opposed
to everybody else?" (1171).
Counsel
watch
or
answered,
requested that petitioner at
hear
the
proceedings
from
least be allowed to
another
room.
The
judge
"I am not putting him in another room to let him see
14
what is going on. A waiver is a waiver. He waived his right to
be present" (1173).
Counsel pointed out that
another judge
in the courthouse
had arranged for defendants to follow their trial on video. The
court responded that petitioner had "forfeited" his right to be
present and that summations were not a stage of trial where he
had the right to be present (1174) .
The judge again complained about petitioner's mother:
Go to the Court of Appeals and tell me that
I am wrong. Now I have to alter the entire
proceedings to the benefit of a destructive
individual that orchestrated the disruption
in
cahoots
with
his
mother
who
also
attempted to frustrate justice since day
one? It is not happening in front of me
(1174) .
Counsel,
referring
to
the
petitioner
that
arresting
officer's
testimony,
felt
he had no
choice but
that
judge's
having
to
that
testify
i
twice
he had to testify if he wanted to
explained
i
told
rebut
the
petitioner
now
(1171) .
The
judge
opined that this was "just a delaying,
stalling tactic on his
part."
record,
He
again
summed
up
for
the
alleging
that
petitioner had "refused to be properly dressed," "demanded that
his
family
bring
him
clothes,
regulations,"
"went
strip
naked
deliberately
delayed
his
transport
barber (1200-1201).
15
outside
during
to
the
rules
and
court
breaks"
and had
court
by
to
going
the
The judge had petitioner brought into the courtroom where
petitioner spoke with his attorney and took his advice not to
testify.
Petitioner did not say or do anything disruptive,
nor
did the judge inquire whether he was willing to conduct himself
properly. Instead, he immediately ordered petitioner to be taken
back
down
allowed
to
to
the
stay.
pens.
He
Counsel
argued
violently during trial,
again
that
requested
petitioner
had
that
he
be
never
acted
would not repeat the outburst and that
r
i
he had the fundamental constitutional right to be present
for
i
summations and the jury charge.
Counsel "respectfully beg[ged]"
the
fairness
court
"in
the
interest
of
and
justice"
to
let
petitioner stay.
The judge repeated that petitioner had forfeited his right
to be present by his
outburst.
Petitioner's
"delays"
and his
revisiting his decision whether to testify showed that he was
"disingenuous and not believable" (1203).
During deliberations, when the jurors sent notes asking for
exhibits
and
petitioner
readbacks,
had
given
defense
assurances
counsel
again
related
that
would
"play
he
that
like
a
gentleman" and asked that he be readmitted.
The
outburst
judge
repeated
that
petitioner
his
right
be
present
petitioner's
to
revisiting his
had
and
forfeited by his
again
opined
that
decision whether to testify was
a
"subterfuge" and an attempt to "manipulate this Court. And I'm
16
i
not going to let it happen.
Request denied"
(1350).
was
absent
for
summations,
court's
responses to their many notes,
consequently
deliberations,
the
testimony,
Petitioner
jury
and
the rendering of the verdict.
State Appellate Court Decision
The Appellate Division decision found that "even prior to
the
defendant's
outburst,
he
had
engaged
in
a
pattern
of
behavior that delayed and frustrated the proceedings," so that
i
he "knowingly, voluntarily and intelligently waived his right to
be present at the remainder of his trial." People v.
A.D.3d at 1052
Paige, 134
!
(emphasis added). These "circumstances," together
i
with
the
refusal
"profanity-ridden
to
readmit
him.
outburst,"
Id.
at
justified
1053.
the
Finally,
judge's
under
"the
particular circumstances," it was not an abuse of discretion to
■:
refuse to allow petitioner to watch his trial remotely. Id.
District Court Decision
The
District
"D.")
expressly
waives
the
Court
decision
(hereinafter
"Decision"
or
rejected
Allen's
definition
conduct
that
right
to
presence.
Rather,
of
"clearly
established
Supreme Court precedent holds that misconduct warrants removal,
not if that conduct
'makes it impossible to conduct the trial
with the defendant in the courtroom. r " Removal- is warranted by
any conduct that "permits our courts to be bullied,
and
humiliated
and
their
orderly
17
progress
insulted,
thwarted
and
obstructed
by
defendants"
(D.
25) (citing
Allen,
397
U.S.
at
holding
that
a
346)(emphasis added).
The
Decision
further
Allen's
rejected
i
defendant can "of course" reclaim his right by being willing or
promising to conduct himself properly.
Rather,
a defendant has
the "burden" to "satisfactorily demonstrate that he would not be
violent or disruptive" (D. 31) .
Having
dispensed
with
Allen's
holdings,
the
Decision
resolved the lack of record support for the judge's allegations
by asserting that he had "noticed these delays on multiple prior
occasions but did not place its observations on the record at
1
every occurrence." "This conclusion is supported," the Decision
explained,
times,
by
thereby
the
judge's
constituting
repeating
"a
the
substantial
allegations
several
record"
justify
to
refusing readmittance (D.26, 32).
The Decision listed four cases cited in petitioner's brief
where
the
Second
Circuit
held
meaningful
inquiry
into
reason
the
before proceeding with the trial.
18
that
for
a
judge
a
must
defendant's
make
a
absence
The Decision made no attempt
i
to
distinguish
them
from
petitioner's
case
where
the
record
showed no such inquiry (D. 29).7
The
Decision
sentencing,
where
perceived
partiality
concluded
he
that
protested
towards
in
the
petitioner's
remarks
earthy
the
terms
prosecution,
at
court's
retroactively
justified his not being readmitted (D.28, 32-33).
Second Circuit Decision
The Second Circuit decision began by mistaking petitioner's
argument, which.is not that he was improperly ejected after the
courtroom outburst, but that his permanent exclusion thereafter
violated his constitutional right to be present. 8
The decision recited Allen's holding but made no attempt to
apply it. The Circuit invoked the "doubly deferential lens" of
habeas review to find "no basis" for disputing the judge's
allegations that petitioner was late to court "several times."
7 See, e.g., U.S. v. Fontanez, 878 F.2d 33, 36 (2d Cir.
1989)(court must
conduct
inquiry into whether defendant's
absence is knowing and voluntary and whether he would soon be
present).
Fontanez further notes,
"we must not condone a
district court's findings, on which a decision of waiver is
based,
where
they
stand in direct
contradiction to the
evidence."
8
The Circuit cited dicta from Norde v. Keane, 294 F.3d 401, 413
(2d Cir. 2002) that a defendant's conduct need not be as
"egregious" as that of the defendant in Allen to warrant
ejection (Circuit at 3) . But the standard is not egregiousness,
but whether the conduct makes it impossible to proceed with the
defendant in the courtroom. Mr. Norde's "yelling" in court met
that standard. In contrast to the judge in petitioner's case,
however, the judge subsequently readmitted him. Norde, 294 F.3d
at 406-407.
19
Nor did the decision consider whether being late justified
refusing readmission for the rest of the trial (Circuit at 3)'.
The court similarly relied on the "deferential standard of
review" to uphold the judge's concluding without inquiry that
petitioner's being produced late from Rikers was a voluntary
absence (Circuit at 4).
The decision held that a defendant who has lost his right
to be present cannot reclaim it unless he "satisfactorily
demonstrates that he would not be violent or disruptive."
(Circuit at 3-4).
As for petitioner's not being allowed to follow his trial
remotely, the court treated it as a separate claim that required
petitioner to find a holding by this Court that such
accommodation is required (Circuit at 4).
Habeas Principles
The deferential standard of habeas review assumes that
state courts have made "good-faith attempts to honor
constitutional rights." Harrington v. Richter, 562 U.S. 86, 103
(2011). AEDPA "preserves authority to issue the writ in cases
where there is no possibility fairminded jurists could disagree
that the state court's decision conflicts with this Court's
precedents and "is so lacking in justification beyond any
possibility for fairminded agreement." Id. at 102-103.
20
Under
(AEDPA),
the
a
Antiterrorism
petitioner
is
and
Effective
entitled
to
Death
habeas
Penalty
relief
Act
when
the
state courts' denial of his constitutional claim is contrary to,
or an unreasonable application of,
law,
clearly established Federal
as determined by a holding of the U.S.
Supreme Court.
28
U.S.C. 2254(d)(1). A decision is contrary to established federal
law when it applies a rule that contradicts that law. A decision
is an unreasonable application of the law if it identifies the
correct governing legal principle but unreasonably applies it to
the facts of the petitioner's case.
Cullen v.
563
«
state
» ,
Pinholster,
U.S. 170, 182 (2011).
A
habeas
petition
may
also
be
granted
where
the
i
court's decision was based on an unreasonable determination of
the
facts.
2254(d)(2).
Factual
determinations
by
state
courts
i
are presumed correct unless shown to be incorrect by clear and
convincing evidence.
2254(e)(1).
"A federal court can disagree
with a state court's credibility determination and, when guided
by AEDPA,
conclude
the
decision was
unreasonable
or that
the
factual premise was incorrect by clear and convincing evidence."
Brumfield v.
demanding
but
Cain,
not
576 U.S.
305,
insatiable."
231, 240 (2005).
21
314
(2005).
Miller-El
v.
"The standard is
Dretke,
545
U.S.
REASONS FOR GRANTING THE PETITION
The Circuit Court's Deference to the State
Courts'
Unreasonable
Factual
and
Legal
Determinations Eviscerates the Holding of
Allen.
The
"doubly deferential
blindfold.
The
Second
lens"
Circuit
of
habeas
stands
review
is
virtually
not
alone
a
in
upholding the extreme and arbitrary deprivation of the right to
be present demonstrated in petitioner's case.
Petitioner knows
of no decision where a judge refused readmittance to a defendant
who
repeatedly
single,
promised
non-violent
summations,
to
conduct
outburst,
the jury charge,
himself
keeping
him
properly
out
for
after
a
testimony,
deliberations and the rendering of
the verdict,
even to the extent of refusing to let him follow
his
remotely.
trial
The
state
court's
factfindings
are
i
unsupported by the
record and its
application of Allen is
!
so
unreasonable as to eliminate its principles altogether.
Allen
unambiguously
holding beginning with,
U.S.
at
343.
It
held
announced a
constitutional
rule
in a
"we explicitly hold today." Allen,
that
the
right
to
presence
is
397
so
fundamental that courts must apply every reasonable presumption
against its waiver.
Therefore,
the "deplorable" act of removing
a man from his trial "even for a short time" is limited to when
it
is
that
specifically
obstructs
the
the
defendant's
trial.
Allen
22
presence
in
at
347.
343,
the
courtroom
Thus,
the
deprivation of a defendant's right to presence must correlate to
the disruptive effect of his presence. Exclusion may not be used
as an all-purpose disciplinary tool.
Moreover, so fundamental is the right to presence that even
when a defendant has caused a disruption making it impossible to
proceed with him in the courtroom,
he can "of course" reclaim
his right "as soon as" he is "willing" or "promises" to conduct
himself properly. Id. at 343, 344.
In petitioner's case, the trial judge openly used exclusion
as
punishment,
piling
on
indicative
of
afterthought,
connection
to
whether
made
impossible
it
allegations
are
allegations
but
which
that
were
not
only
even
if
true,
had
petitioner's
presence
in
the
courtroom
to
Notwithstanding
proceed.
contradicted
by
the
trial
no
that
the
transcript,
the
Appellate Division adopted them as fact and concluded that they
constituted a
outburst,
"pattern of behavior" whereby even prior to the
petitioner had already waived his
right
to presence
for the rest of the trial. People v. Paige,
134 A. D. 3d at 1052
{emphasis
on
added).
This
conclusion,
based
a
non-existent
"pattern" and impermissibly extending Allen's narrow definition
of
disruption
possibility
for
"is
so
lacking
fairminded
in
justification
agreement."
562 U.S. 86, 102-03 (2011).
23
Harrington
beyond
v.
any
Richter,
) ;
The Circuit Erroneously Deferred to Factual
Conclusions Unsupported by the Record.
No deference is due to a state court's factual conclusions
when unsupported by the record or based on clear factual error.
Brumfield v.
not
bound
Cain,
by
a
576 U.S.
lower
305,
court's
316-317
(2005).
unreasonable
This Court is
interpretation
or
mischaracterization of the facts. Miller-El v. Dretke,
545 U.S.
at
strained
265
(rejecting
lower
courts'
interpretation of petitioner's
of
peremptory
challenges).
"dismissive
and
evidence" of discriminatory use
A habeas
purportedly
factual
assertion
that
Miller-El v.
Dretke,
545 U.S.
at 241
acceptance
of
prosecutor's
court
need
not
accept
a
"reeks
of
afterthought."
(rejecting lower court's
explanation
for
peremptory
are
accorded
challenge).
Transcripts
of
state
court
proceedings
presumption of regularity. Bankhead v. LaVallee,
159 n.5
the
(E.D.N.Y.
transcript
finding,
that,
contrary
to
the
state
Here,
court's
there was no "pattern of behavior" whereby petitioner
knowingly
before
439 F.Supp 156,
1977)(collecting Second Circuit cases).
shows
a
and voluntarily waived his
the
Contrary
outburst.
to
the
People
trial
v.
right
Paige,
judge's
134
to
presence,
A.D.3d
retroactive
at
even
1052.
allegations,
petitioner was not "consistently late" nor did he ensure that
24
t
the proceedings started late "at all times" after lunch breaks
and adjournments.
The
record
shows
exactly
two
instances
of
petitioner's
being produced late prior to the outburst.
The first was after
Corrections
officials
petitioner's
deliver
clothes
his
had
to
refused
the
jail
to
let
facility where
he
family
was
being
held, but accepted them at the courthouse the following morning.
Thus,
contrary to the
judge's
allegation,
the
family had not
i
violated
the
rules.
Nor
was
it
petitioner's
desire
to
dress
a
reasonable
inference
that
well
for
murder
trial
his
demonstrated an intent to disrupt or frustrate the proceedings.
The second incident was when petitioner was produced 15-20
minutes late from a 10-minute break.
if he were late again,
The court threatened that
he would be excluded from his trial or
i
displayed to the
jury in handcuffs
(644).
Thus,
if there had
been any further lateness, it would appear in the transcript. No
such incident appears.
Nor does the transcript show any instance of petitioner's
defying
even
one
order,
much
less
"repeated"
orders
not
to
communicate with the audience, as the judge alleged.
In sum,
there was no pre-outburst "pattern" of disruption.
The state court's reliance on this non-existent pattern to find
that
petitioner
had permanently waived
25
his
right
to
presence
k
even before the outburst was
an unreasonable determination of
the facts.
The District Court speculated that the incidents alleged by
the judge must have occurred because he said so. Decision at 26.
But a judge may not make himself an unsworn witness against the
accused.
If the transcript did not record any such incidents,
the judge could not add them by fiat.
The
Second
Circuit
roundly
asserted
basis" to doubt the judge's allegations.
contrary,
that
there
was
Circuit at 4.
"no
On the
the basis is the absence of these incidents from the
presumptively correct trial transcript.
The
conduct
judge's
were
irrelevant
to
allegations
also
either
whether
about
i
petitioner's
contradicted
petitioner
should
post-outburst
by
the
record
or
be
readmitted.
If
petitioner showed an "all-around hostile demeanor," and was "in
cahoots with his mother," that may have been annoying conduct
but they are not
grounds
for
finding a
knowing and voluntary
waiver of the right to be present.
The
judge
mischaracterized
petitioner
"demand[ed]
courtroom
and
thereby
indicates
demonstrating
"manipulate
to
this
Court"
facts
he
doesn't
"subterfuge"
(1350).
As
in
then
testify.
that
a
the
comes
want
and
defense
alleging
to
an
counsel
into
that
the
testify,"
attempt
to
explained,
the judge had suggested to petitioner that he had to testify if
26
i
he
wanted
Petitioner
testify.
to
contradict
reasonably
the
arresting
inferred
that
he
officer's
had
no
testimony.
choice
but
to
It was only after consulting with his attorney in the
courtroom that he was persuaded not to do so. He did not speak
out of turn or demonstrate any disruptive behavior at that time.
Instead, he promised through his attorney that there would be no
further disruptions and begged to be allowed to stay.
The
judge's
conclusion
that
petitioner
was
voluntarily
i
absent when he was not timely produced from Rikers was based
entirely on what it was told off the record by an unidentified
member of its staff whose basis of knowledge was unknown.
Even
i .
i
after petitioner explained that he had simply not been put on
i
the early bus to court, the court made no inquiry.
No
deference
is
accorded
inadequate
factfinding
U.S.
954
930,
to
legal
procedures.
conclusions
Panetti
v.
based
Quarterman,
on
551
(2007){court's denial of competency hearing based
on ignoring procedures dictated by Supreme Court).
This Court and the federal and state courts require an onthe-record
determination
voluntary.
Taylor v.
of
U.S.,
whether
a
defendant's
absence
is
414 U.S.
17
(1973)(court determined
voluntariness of defendant's absence after inquiry of his wife);
U.S.
v.
Tureseo,
566
F.3d
77,
83
(2d
Cir.
2008) (court
must
conduct record inquiry to determine whether defendant's absence
is voluntary).
27
People v. Parker,
judge
relied,
57 N.Y.2d 136
similarly
does
not
(1982), on which the trial
permit
a
court
without inquiry when the defendant does not appear.
see also People v. Epps,
37 N.Y.2d 343
to
proceed
Id. at 142;
(1975)(when defendant in
custody fails to appear, court must conduct inquiry into whether
absence is voluntary).9
When state law mandates procedures to protect the rights of
the accused, a court's violation of them undermines any argument
that
it
was
Quarterman,
a
legitimate
551 U.S.
exercise
at 950-951.
of
discretion.
Panetti
In petitioner's case,
v.
contrary
to the Second Circuit's conclusion, the judge's disregard of the
procedures
mandated
deference
when
he
by
Parker
relied
on
and
Epps
nothing more
was
not
than
entitled
to
uncorroborated
rumor, unsupported by any inquiry.
In sum,
\
the record shows that the state court's
finding
that petitioner waived his
right
to presence by conduct
that
"delayed
court
proceedings"
being
and
frustrated
despite
"repeatedly warned," is unsupported by the record and based on
unreasonable
facts.
interpretations
and
mischaracterizations
of
the
Paige at 1052. No deference is due to these conclusions.
9 Contrary to the District Court's assertion, petitioner has
never argued that he had to be personally present for the
inquiry. But it is no answer that a court may dispense with the
inquiry when "the facts are clear and undisputed." Decision at
29 n.ll. Here,
petitioner expressly disputed that he had
deliberately caused himself to be produced late.
28
Brumfield v. Cain, 57 6 U.S. at 316-317; Miller-El v. Dretke, 545
U.S. at 265.
Finally,
contrary
to
the
Second
Circuit's
assumption,
petitioner has never argued that the refusal to let him follow
his trial remotely is a separate claim requiring him to find a
Supreme Court holding on point
(Circuit at 4) .
simply
the
additional
proof
that
judge
The refusal is
impermissibly
exclusion as punishment for annoying conduct and not
used
from any
concern for courtroom decorum.
i
The Circuit Erroneously Deferred to the State Court's
Ignoring the Holding of Allen.
i
No deference is owed to a state court's denial of habeas
relief when based on an unreasonable application of this Court's
holdings.
Court
Panetti v. Quarterman,
interprets
and
standards or procedures,
them.
Dickerson v.
federal
warnings) .
statute
No
U.S.,
applies
the
Constitution
to
require
no other authority may dispense with
530 U.S.
dispensing
deference
551 U.S. at 953-954. When this
is
428,
with
due
when
437
(2000)
requirement
a
state
(overturning
of
court
Miranda
fails
to
provide the procedures mandated by clearly established Supreme
Court
holdings.
(granting
habeas
Panetti
where
v.
Quarterman,
state
court's
551
U.S.
denial
of
at
948-959
competency
hearing based on flawed interpretation of mandates of Ford v.
Wainwright, 477 U.S. 399 (1986)).
29
i
i
Based on this principle, courts may not lower the threshold
requirements
or
of,
graft
additional
inquiries
constitutionally mandated standards or procedures.
onto,
For example,
where the Strickland test for ineffective assistance of counsel
requires a petitioner to show only that but for his attorney's
errors,
there
is
a
"reasonable
probability"
that
the
outcome
would have been different, it was an unreasonable application of
Strickland to
require
an
additional
inquiry
into
whether
the
errors rendered the proceeding "fundamentally unfair." Williams
v.
Taylor,
529 U.S.
362,
393,
397
(2000) (citing Strickland v.
Washington, 466 U.S. 668, 694 (1984)).
Similarly, a court may not add "its own restrictive gloss"
onto a constitutionally mandated procedure.
Tennard v.
Dretke,
542 U.S. 274, 283
(2004)(unreasonable application of established
federal
lower
law
for
court
to
add
"screening
test"
of
"constitutional relevance" to requirement that jury in capital
case be allowed to consider mitigating evidence).
Nor may a lower court impose a higher burden of proof on
defendants
than
California,
545
discrimination
in
required
by
the
U.S.
162,
168
jury
selection
Supreme
Court.
(2005)(defendant
may
not
be
held
standard of proof than required under Batson v.
U.S. 79 (1986) ) .
30
Johnson
v.
alleging
to
higher
Kentucky,
476
The state court here impermissibly extended Allen's narrow
definition
of
conduct
that
waives
the
right
to
presence
to
encompass conduct having nothing to do with whether petitioner's
presence in the courtroom made it impossible to proceed with the
trial. Petitioner knows of no decision holding that the right to
presence is permanently waived by being produced late' to court.
Even
assuming
for
the
sake
of
argument
that
petitioner
deliberately "frustrated the proceedings" by dawdling over his
clothing,
"Behavior
that
is merely disruptive
under Allen to justify removal."
1058
(8th
Cir.
2010) {citing
U.S.
Tatum
v.
v.
is
Ward,
insufficient
598
F.3d 1054,
United Statesr 703
A.2d
1218, 1223 (D.C.App.1997)).
The state court found that the "profanity-ridden outburst"
further
justified the
allow him to
1053.
That
judge's
follow his
is
directly
refusal
trial
to
remotely.
contrary
to
readmit
Paige,
Allen's
him or even
134 A.D.3d at
holding
that
a
defendant who loses his right to presence by disruptive conduct
can
"of
course"
reclaim
it
as.
soon
as
he
"promises" to conduct himself properly. Allen,
is
"willing"
or
397 U.S. at 343,
344 .
The Second Circuit's deference to this overt departure from
Allen
is
itself
an
unreasonable
application
of
Allen.
The
Circuit impermissibly grafts an additional requirement whereby a
defendant
must
not
only
promise
31
but
"satisfactorily
r
demonstrate," based his pre-disruption conduct, that he will not
disrupt again.
That
inquiry"
(Circuit at 4).
is
exactly
which
this
the
"restrictive
Court
has
held
gloss"
to
be
or
"additional
an
unreasonable
application of its holdings.
Far from imposing a burden,
holds
right
that
"of
course"
the
may
be
reclaimed
Allen
based
on
willingness or a promise. Allen at 434-344.10
The Denial of Petitioner's Right to Be
Present Was Not Harmless.
The state court, having found no error, did not reach the
question of whether it was harmless.
Accordingly,
there is no
determination on that point to which this Court must defer in
assessing whether petitioner has satisfied 2254(d). Brumfield v.
Cain, 576 U.S. at 324.
Even
assuming
petitioner's
right
structural,
point
of
grant
of
influence
to
be
this
present
sweeping
was
a
deprivation
trial
error
its sheer extent and unreasonableness,
not
"infect[ed]
that
letting
him
follow
his
trial
and
of
not
even to the
on
video,
so
the integrity of the proceeding as to warrant the
habeas
the
relief,
even
jury's verdict."
if
it
did
Brecht v.
10
not
substantially
TUcrahamson,
507
U.S.
Even assuming that a court may inquire into the defendant's
sincerity, the judge made no such inquiry here, where petitioner
was returned to the courtroom and gave assurances through his
attorney that there would be no further disruptions. The judge
had already decided once and for all that petitioner had
"waived" or "forfeited" his right to be present (1173, 1174).
32
619,
638 n.9
(1993)., Petitioner was kept out of the courtroom
for police testimony about his seizure and arrest,
the jury charge,
summations,
the court's responses to their notes and the
rendering of the verdict,
where his absence had "a substantial
effect on his ability to defend." Snyder v. Massachusetts,
291
U.S. 97, 105-106 (1934)
meet
Even
applying
its
burden
"substantial
Brecht
v.
and
harmless
error
analysis,
the
State
cannot
showing
that
the
did
not
have
of
injurious
Abrahamson,
507
effect
U.S.
error
influence
at
638;
on
see
the
also
a
verdict."
Glebe
v.
Frost, 135 S.Ct. 429, 429 (2014) (state has burden to prove error
not harmless).
A defendant's presence at trial enables him to assist in
his defense and enables the jury to observe his demeanor. "It is
a fundamental assumption of the adversary system that the trier
i
of
fact
observes
the
accused throughout
the
trial,
while
the
accused is either on the stand or sitting at the defense table.
u The right to presence applies "especially" to the rendition of
the verdict. Diaz v.
U.S.,
223 U.S.
442,
456
(1912). A
defendant's
presence
is
critical
"because
the
jury , in
deliberating towards a decision knows that it must tell the
defendant directly of its decision in the solemnity of the
courtroom." U.S. v. Canaday, 126 F3d 352, 362 (2d Cir. 1997);
see also U.S. v. Fontanez, 878 F2d 33 (2d Cir. 1989) (reversing
where defendant involuntarily absent from jury deliberations).
This right derives from the earliest traditions of AngloAmerican jurisprudence. See Gullie B. Goldin, Presence of the
Defendant at Rendition of Verdict in Felony Cases, 16 Columbia
L.Rev. 18 (1916).
33
At
all
stages
behavior, manner,
their
absence,
trier of fact,
of
the
proceedings,
facial expressions,
combine
to
make
an
the
defendant's
and emotional response or
overall
impression
on
the
an impression that can have a powerful influence
on the outcome of the trial." Riggins v. Nevada,
504 U.S.
127,
142 (1992)(Kennedy, J., concurring).
Here,
the
courtroom,
jury
saw petitioner
never to return.
forcibly
removed
from the
Not only were they deprived of the
opportunity to observe his demeanor during critical
stages
of
trial, they might well have wrongly surmised either that he was
too dangerous to be allowed back into the courtroom or that he
had decided not to cooperate in the trial.
Either way,
on
the
this could only have had a substantial effect
verdict.
The
evidence
was
not
overwhelming
that
petitioner was one of the two gunmen in the shooting, where the
conviction was largely based on the credibility of an accomplice
testifying to avoid being convicted of the murder himself.
The
right
of an accused to be present
is
the
oldest
of
trial rights, predating even the right to counsel. See People v.
Epps,
37
"rudiments
retreated
N.Y.2d
of
at
our
from its
348-349
(tracing
jurisprudence") .
holding
fifty years
right
This
to
presence
Court
has
never
trial
courts
ago that
to
must apply every reasonable presumption against a waiver. It has
never modified or compromised the procedures set forth in Allen.
34
i
The Second Circuit's upholding of the state court's extreme and
arbitrary deprivation of this right puts the principles of Allen
at risk. Petitioner requests that certiorari be granted.
»
CONCLUSION
For the reasons given above,
this Court
should grant the
application for a writ of habeas corpus and order Mr.
immediate
release
retrial before
from custody
a different
or,
in
the
judge of the
alternative,
Paige's
order
Supreme Court of the
State of New York, Kings County, within 120 days of such order,
and if the state fails to retry him,
he shall be released from
custody upon expiration of that 120-day period;
and grant any
other and further relief that this Court finds just and proper.
Dated:
I
New York, New York
August 2021
Richard Joselson
Lorca Morello
Attorney for Zaire Paige
The Legal Aid Society
199 Water Street
New York, NY 1008
212-577-3451
rjoselsonQlegal-aid.org
lmorello@legal-aid.org
35
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