Petition — Dawson v. New York

RECEIVED

MAR 8 1982

Orrive ur THE CLERK

22 2 2

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

RICHARD LEE DAWSON,

Petitioner,

vs-

STATE OF NEW YORK,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW YORK

APPELLATE DIVISION, FOURTH JUDICIAL DEPARTMENT

EDWARD JOHN NOWAK, ESQ.

Monree County Public Defender

36 West Main Street

Rochester, New York 14614

Attorney for Petitioner

QUESTIONS PRESENTED

Re Whether Section 4 of the Judiciary Law of the State of

New York, construed by the New York Courts to bestow unfettered

discretion upon trial judges to close portions of criminal trials

over the objections of defense counsel, is violative of the Sixth,

First and Fourteenth Amendments of the United States Constitution.

Bs Whether Section 4 of the Judiciary Law of the State of

New York, as applied to the facts of this case wherein the public,

including the petitioner's mother, was excluded in the absence of

any claim, demonstration or finding of necessity, is unconstitutional

in derogation of the Sixth, First and Fourteenth Amendments.

TABLE OF CONTENTS

Page

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Constitutional Provisions Involveec 2

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I: The questions presented in the context of the Sixth

Amendment are substantial, as evidencaiby the noting

of probable jurisdiction in Globe Newspaper Co. v.

Superior Court, Docket number 81-611, 1 16.

788775 which will address similar questions within

the parameters of the First Amendment 4

Il: There appears to be a significant diversity of

opinion on the questions presented in both the

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TABLE OF AUTHORITIES

Aaron v. Capps, 507 F2d 684 (Sth Cir. 197955... 8

Davis v. United States, 247 Fed. 394 (8th Cir. 1917)....... 8

Duncan v. Louisiana, 391 U.S. 145 (19686)))))0uꝛ ee eeeee, 5

Betes v. Texas, 31 U.S. 332 (1965) 66... .. 6n

Gannett Co. v. DePasquale, 443 U.S. 368 (1979)............. 7n

Globe Newspaper Co. v. Superior Court, 401 NE2d 3690

(19860) . jude. vacated 449 U.S 892 (1980), on remand 423 NE2d

772 (1981), cert granted U.S.___, docket numbers 81

Gli CHovember 16, 10% %% f ccccccccscccvcnsccscescesesess 4,4n,7,7n,8

A AAA 0

Ip _ ve Oliver, 333 U.S. 237 (1906 0 n)) 5

People v. Hartman, 103 Cal. 242 (1890 ů ᷑ F ꝙéœΑyumůU UU PP 9

People v. Jelke, 308 N.Y. 56 (1954)...... ccc eececererecceee 6n,9

People v. Kerrigan, 73 Cal. 222 (1867 ᷑ UUUUUU Un 9

People v. March, 419 NE2d 1212 (111. App. 1981)............ 5

People v. Yeager, 113 Mich. 226 (169ͥ 0 6n,9

Rhodes v. State, 102 Neb. 750 (1916). 8

Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980).. 5,7,7n,10

State v. Callahan, 100 Minn. 63 (1907 ꝶ P7777 9

Seana ©. Grogk, 367 Le. 92 %% %ùũ ii.. 9

State v. Hensley, 75 Ohio St. 255 (190où0ůu:/ 8

State v. Byhus, 19 B.D. 326 (1909)... .. ß 9

Seate v. Geboune, S46 Ore. 2 (%% ũær· U &

State v. Schmit, 139 wizd 800 (Minn. 1966)..............4... 6,7,8

Tanksley v. United States, 145 F2d 58 (9th Cir. 1944)...... 6,6n,8,10

United States v. Eisner, 533 F2d 987 (6th Cir. 1976),

e ,, ⁰¹wn 10

United States v. Kolbi, 172 F2d 919 (3rd Cir. 1949) en, 7.

United States ex rel. Bennett v. Rundle, 419 F2d 599

BS GOS. BPO Pe ccc cccsaccceseccsccccccsecesccecccoscccse 8

ited States ex rel. Lioyd v. Vincent, 520 F2d 1272

(ind Cir. 1975), cert. . . 10

iii

Constitutional and Statutory Provisions: Page

Michigan Act No. 408, Local Arts of 1893 §18........... 8n

Massachusetts General Laws c. 278 1644 4n

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United States Constitution

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Other Authorities

Annotation, Validity and Construction of Constitution

or Statute Authorizing Exclusion of Public In Sex

r Ui Cn MM. 5 cacécesesdeccvecetocess 6

Note, The Right to a Public Trial in Criminal

Cases, eee eee dn

6 J. Wigmore, Evidence 5163. (J. Chadbourn

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

RICHARD LEE DAWSON,

Petitioner,

*

STATE OF NEW YORK,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW YORK

APPELLATE DIVISION, FOURTH JUDICIAL DEPARTMENT

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment of the Appellate Division, Supreme

Court of New York, Fourth Judicial Department, affirming petitioner's

conviction for Rape, First Degree and Robbery, Second Degree.

OPINIONS BELOW

The order and majority memorandum opinion of the Appellate

Division are contained in the Appendix at A-? and A-3. The dissent-

ing opinion is contained in the Appendix from A-4 thru A-9. The

decision is published at 444 N.Y.S.2d 333, A. D. 24 (11/13/81)

By order of the Honorable Domenick L. Gabrielli, Associate Judge of

the New York State Court of Appeals, the petitioner was denied leave

to appeal to this state's highest court. (Appendix, A-1).

JURISDICTION

The judgment of conviction became final in all respects

when the Court of Appeals denied petitioner's application for leave

to appeal from the order of the Appellate Division, Fourth Department,

| which affirmed the conviction of the New York State Supreme Court,

Monroe County. The order of the Court of Appeals was entered on

January 7, 1982. Since the constitutionality of a statute of the

State of New York has been drawn in question, 28 U.S.C. §2403(b) may

be applicable and a copy of this petition for certiorari, as well as

the motion to proceed in forma pauperis and its supporting affidavit,

has been served on the Attorney General for the State of New York.

This Court's jurisdiction in invoked under 28 U.S.C. Section 1257(3).

STATUTE INVOLVED

The text of Judiciary Law §4 is as follows:

"The sittings of every court within this state shall be

| public, and every citizen may freely attend the same, except that

in all proceedings and trials in cases for divorce, seduction,

abortion, rape, assault with intent to commit rape, sodomy, bastardy

or filiation, the court may, in its discretion, exclude therefrom

all persons who are not directly interested therein, excepting

jurors, witnesses, and officers of the court.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment I

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press,

or the right of the people peaceably to assemble, and

to petition the Government for a recress of grievances.

Amendment VI

In all criminal prosecutions, the accused shall enjoy

the x to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been 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 against him; to have compulsory process

for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

2

rr

Amendment XIV §1

.. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the iuws.

STATEMENT OF THE CASE

The petitioner was convicted after a bench trial of rape,

first degree and robbery, second degree on December 3, 1976.

The primary witness against the petitioner was the com-

plainant, Miranda Haley. Prior to her testimony the prosecutor

asked the Court to exclude the spectators from the courtroom in

view of the fact that Ms. Haley was the victim in a rape case.

(Appendix, A-10) Defense counsel objected to the application for

closure (Appendix, A-10 and A-11). The trial court ruled that the

public, except for the press, would be excluded from the courtroom

during Ms. Haley's testimony. Included in the court's order of

exclusion was the petitioners mother. (Appendix, A-12)

Ms. Haley testified that on March 20, 1975, a man she

identified as the petitioner knocked on the door of the group home,

where she worked as a resident counselor, asking to use the telephone.

Ms. Haley allowed the man in and after using the phone, he refused

to leave. Instead, he threw Ms. Haley down the basement stairs,

causing a little bit of a cut“ and soreness, which lasted about a

week. The man asked her for some money, and she led him to a desk

from which he took about $20.00. Ms. Haley testified that she was

then taken upstairs to the bedroom of one of the residents of the

group home where she engaged in sexual intercourse out of fear that

resistance would result in her injury. She testified that the act

of intercourse lasted for only thirty seconds and that the man did

not ejaculate. After her testimony, the courtroom was open to tne

public and twelve other witnesses were called by the prosecution.

The defendant presented an alibi defense in an effort to

establish that he was with his father on his way to work at the

time this incident was alleged to have occurred.

The trial court found the defendant guilty of rape,

first degree; robbery, second degree; assault, second degree; and

petit larceny. The Court, sua sponte, dismissed the assault and

larceny counts as lesser included offenses.

The Court later senterced the petitioner on the rape

conviction to an indeterminate term of imprisonment having a minimum

of eight and one-third years and a maximum of twenty five years.

The Court imposed a lesser sentence on the robbery count to run

concurrently with the sentence for the rape conviction. These

sentences were ordered to run consecutively to a previously imposed

sentence of five to fifteen years.

REASONS FOR GRANTING THE WRIT

1. The questions presented in the context of the Sixth

Amendment are substantial, as evidenced by the noting of probable

jurisdiction in Globe Newspaper Co. v. Superior Court, Docket number

81-611, (November 16, 1981), which will address similar questions

within the parameters of the First Amendment.

11 There appears to be a significant diversity of opinion on

the questions presented in both the federal and state courts.

.

This Court has recent lu noted probable jurisdiction in

the case of Globe Newspaper Co. v. Superior Court, docket number

81-611, cert. granted November 16, 1981. A reading of the lower

court opinions! in that case indicate that the constitutionality

of a Massachusetts statute (Mass. G. L. c. 278, §16 a)? is being

1 401 NE2d 360 (1980); on remand 423 K. E 2d 772 (1981)

2 General Laws c. 279 fle A reads: At the trial of a

complaint or indictment for rape, incest, carnal abuse or other

crime involving sex, where a minor under 18 years of age is the

person upon, with or against whom the crime is alleged to have been

committec, or at the trial of a complaint or indictment for getting

@ woman with child out of wedlock, or for the non-support of an

illegitimate child, the presiding justice shall exclude the genere:

public from the courtroom, admitting only such persons as may have

a direct interest in the case."

challenged on First Amendment grounds because the statute requires

the closure of a court in certain specified cases during the testi-

mony of a complainant who is a minor. Petitioner contends that the

New York Statute (§4 Judiciary Law) which give the trial court un-

fettered discretion to close the courtroom for the trial of a rape

case, for no other reason than the fact it is a rape case, is

equally offensive to the Consititution.

In the case at bar, the courtroom was closed over the

objection of the petitioner which brings this case within the pro-

tection of the Sixth and Fourteenth Amendments of the United States

Constitution. '

The Supreme Court has already stated that the public trial

protection of the Sixth Amendment is applicable to the states through

the Due Process Clause of the Fourteenth Amendment (In re Oliver,

333 U.S. 257 (1948); Duncan v. Louisiana, 391 U.S. 145, 148 (1968)).

In Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980),

this Court dealt with the right of the press under the First Amendment

to a public trial when closure was ordered on request of the defendant

with the acquessence of the prosecutor. The Court held that where

the closure involved a criminal trial, the exclusion of the press

violated the First and Fourteenth Amendment where “the trial judge

made no findings to support closure"; failed to inquire into

“alternative solutions” which would have “ensured fairness"; and,

failed to “recognize any right under the Constitution for the public

or press to attend the trial." (Richmond Newspapers, Inc. v.

Virginia, supra, p. 580-581). Petitioner contends that an accused

is entitled to at least the same protection under the Sixth Amendment

as the press is under the First Amendment. Specifically, “absent an

overriding interest articulated in findings, the trial of a criminal

case must be open to the public” (Richmond Newspapers Inc. v.

Virginie, supra., at 561; Also see, People v. March, 419 NE2d 1212,

1216 (111, App. 1981)). Consequently, a statute which permits closed

criminal trial proceedings without a factual determination necessi-

tating closure, violates the Sixth ard Fourteenth Amendments to the

Constitution.

wr

The circumstances which resulted in the closure of

petitoner s trial are strickingly similar to those which existed

in Tanksley v. United States, 145 F2d 58 (9th Cir. 1944) and State

v. Schmit, 139 NW2d 800 (Minn. 1966). In both of those cases the

order of closure was held to have violated the defendant's right to

a public trial. However, petitioner's conviction has been affirmed

by a divided appellate court. It is extremely important to note

that th petitioner's mother was excluded from the courtroom during

the testimony of the complainant (Appendix, 4-12) 3 Various courts

have held, despite the existence of as atute or state constitutional

provision, that the exclusion of a defendant's family, relatives and

close friends violates the constitutional protection of the right to

a public trial (See, 39 ALR3d 853, Validity and Construction of

Constitution or Statute Authorizing Exclusion of Public in Sex

Offense Cases, §6 and cases cited therein). Petitioner is unaware

of any case where a trial court's exclusion of a family member was

upheld after appellate review.

Clearly, the Sixth Amendment right to a public trial is

designed to protect certain fundemental rights of an accused

separste and apart from the rights of the press which are protected

by the First Amendment. The protections or safeguards of the Sixth

Amendment are: to assure the accused a fair trial “that the public

may see he is fairly dealt with and not justly condemned", “ to aid

in assuring trustworthy testimony,” and, keep open the possibility

that a witness unknown to either party may attend the public trial.“

3 The record is unclear as to whether the defendant's

father was also excluded. However, since it is arguable that he

could be properly excluded since he was subsequently a witness on

petitioner's behalf, it is submitted that his absence or presence

is not as critical to this precise issue on which petition for

certiorari is based.

4 United States v. Kolbi, 172 F2d 919, 921 (rd Cir. 194%);

Estes v. Texas, 361 U.S. 532, 536-539 (1965); Also see, Cooley,

Constitutional Limitations 441 (7th ed. 1903).

5 People v. Jelke, 308 N.Y. 56, 62 (1954); Also see, 6

Wigmore, Evidence §1834 (J. Chadbourn rev. 1976).

© See, Tanksley v. United States, 145 F2d 48, 59 (9th Cir.

1944).

It should be noted that in the case at bar, the trial

court allowed members of the Gannett Press to be present during

the complainant's testimony. Therefore, the precise issue before

the Court in Globe Newspaper Co. is not duplicated in this case.’

The presence of the press does not mean that a defendant's trial

is public since courts have held that allowing the press to attend

a criminal trial is not sufficient to protect the Sixth Amendment

rights of the accused. (State v. Schmit, 139 NW2d 800, 806 (Minn.

1966); United States v. Kolbi, 172 F2d 919, 923 (3rd Cir. 1948)).

It would also appear that if the court was ordering the courtroom

closed to save the witness any embarrassment, the Court's order was

anomalous. Certainly one group of strangers to whom a person would

be reluctant to divulge personal and embarrassing information would

be the press.

This Court has recentiy ruled on the right of the press

under the First amendment to compe] attendance at pretrial hearings®

9

and trials. In view of the determination of probable jurisdiction

in Globe Newsraper Co. v. Superior Court, supra, the Court now

appears ready to assess the right of the press under the First

Amendment to challenge the temporary closure of a trial, a question

specifically left open in the Richmond News case. 0 Thus, the Court

will have an opportunity to rule of the propriety of limited closures

in certain types of cases in relation to the rights of the press under

the First Amendment. However, a major issue still remains unresolved

? In Globe Newspaper Co., the only issue before the Court

is the right of the press uncer the First and Fourteenth Amendments.

[See, Globe Newspaper Co. v. Superior Court, 423 N.E.2d 773, 775-

776 188775)

8 Gannett Co. v. de Pasquale 443 U.£. 368 (1979)

% Richmond Newspapers Inc. v. Virginia, supra.

10 In Richmond Newspapers Inc. v. Virginia. supra, at pp.

581-582 Fn 18 the Court stated, 2 have no occasion here to def ine

the circumstances in which all or parts of a criminal trial may be

closed to the public, ef. e.g., 6 J. Wigmore, Evidence §1834 (J.

Chadbourn rev. 1976), but our holding today does not mean that the

First Amendment rights of the public and representatives of the press

are absolute. ..., so may s trial judge, in the interest of the fair

= of justice impose reasonable limitations on access to

A trial. ...

regarding the defendant's right to a public trial under the Sixth

Amendment when he objects to a limited closure which was ordered

in reliance upon a state statute without a factual hearing or any

showing of necessity.

The First Amendment issue which is presently before this

Court in the Globe Newspaper Co. case is squarely presented in a

Sixth Amendment context by the facts of this case.

Il.

There appears to be widespread diversity among the federal

circuit courts with regard to the temporary closure of trials in

certain types of cases. Certain courts have ruled closures imper-

missible (Tanksley v. United States, 145 F2d 58 (9th Cir. 1944);

United States v. Kolbi, 172 F2d 919 (3rd Cir. 1948); Davis v.

United States, 247 Fed. 394 (8th Cir. 1917), also see, United States

ex rel. Bennett v. Rundle, 419 F2d 599 (3rd Cir. 1969)), while other

courts have held certain types of closures permissible (United States

ex rel. Latimore v. Sieiaff, 561 F2d 691 (7th Cir. 1977); Harris v.

Stephens, 36) 2d 858 (Sth Cir. 1966) cert. denied 386 U.S. 964

(1967); Aaron v. Capps, 507 F2d 684 (Sth Cir. 1975)).22 The stare

courts are also in disagreement over the issue of the temporary

closure of a criminal trial. Some state courts have found the order

of closure improper in the context of the case on appeal (State v.

Schmit, supra.; State v. Osborne, 54 Ore. 289 (1909); Rhodes v. State,

102 Neb. 750 (1918); State v. Hensley. 75 Ohio St. 255 (1906)), while

one state has gone so far as to declare their statute which provided

for closed criminal trials in certain types of cases unconstitutional!

11 See generally, Note, The Accused's Right to a Public

Trial, 42 Notre Dame Law. 499, 499-501 (1967); Note, The Right to

a@ Public Trial in Criminal Cases, 41 N v. b. L. Rev. 113 (13665. *

12 Act No. 408, Local Acts 1893, §18 which provided,

“Whenever it shall appear that, upon the trial of any

cause, evidence of licentious, lascivious, degrading, or peculiarly

immoral acts or conduct will probably be given, the judge presiding

at such trial may, in his discretion, require and cause every person,

except those necessarily in attendance thereon, to retire and absent

himself or herself from the courtroom during such trial or any portion

thereof." (See, People v. Yeager, supra., at p. 229)

(People v. Yeager, 113 Mich. 229 (1897)). Other state court

decisions have upheld the temporary closure of a criminal trial

over the defendant's objection (People v. Kerrigan, 73 Cal. 222

(1887), but see, People v. Hartman, 103 Cal. 242 (1894); State v.

Croak, 167 La. 92 (1928); State v. Callahan, 100 Minn. 63 (1907);

State v. Nyhus, 19 N.D. 326 (1909)).

Interestingly, despite the significance of the holding

in People v. Jelke, 308 N.Y. 56 (1954), the New York State Court

of Appeals has never ruled on the constitutionality of section 4

of the Judiciary Law. In Jelke, the court stated, concerned as

we here are only with cases not encompassed by the special provisions

of section 4 of the Judiciary Law, we need not now consider the scope

or extent of the rights of a defendant standing trial in one of the

cases listed in that statute." (People v. Jelke, supra. at p. 68,

emphasis supplied).

Petitioner asserts that the unfettered discretion given a

court to order closure because the charge is rape, for example,

violates the defendant's right to a public trial as guaranteed by

the Sixth, Fourteenth and First Amendments to our Constitution.

Here the record clearly demonstrates that the order for closure was

based totally on the discretion permitted by §4 of the Judiciary Law.

The record contains no assertion or evidence demonstrating the in-

ability of the complainant to testify because of fear or embarrass-

ment. Nor was the decision of the lower court based on such a

finding. In fact, the record clearly establishes that the determi-

nation of the lower court was based solely on the discretion afforded

the court by section 4 of the Judiciary Law. As the dissenting

opinion at the Appellate Division stated,

The testimony of the complainant in the

instant case, however, does not reveal the need

for closure. She was a 29 vear old married

woman of average intelligence who related the

incident without apparent difficulty. Nor were

the facts of such lurid character as to warrant

protection of the witness from emotional trauma

or of the public from salacious testimony (see

People v. Jelke, supra). That is not to say that

the complainant was not embarrassed or reluctant

to recount openly the facts pertaining to the

charge. That, however, is true in most rape

cases and is not a sufficiently compelling reason

to support a suspension of a constitutional right

over defendant's objection (see Tanksley v.

United States, 145 F2d 58; cf. United States ex

rel. Latimore, 561 F2d 691, supra). [Hon. N.

Dolores Denman, Appendix A-8]

The unlimited discretion provided by the New York Statute

to authorize the closure of a criminal trial without any type of

hearing or determination that closure is necessary, violates our

constitutional public trial protection. A number of courts, in-

cluding the Supreme Court, have suggested that hearings be conducted

to insure that a closure is necessary. (See, Richmond Newspapers

Inc. v. Virginia, 448 U.S. 555, 580-581 (1980); United States ex

rel. Lloyd v. Vincent, 520 F2d 1272, 1275 (2nd Cir. 1975), cert.

denied 423 U.S. 937 (1975); United States v. Eisner, 533 F2d 987,

994 (6th Cir. 1976), cert. denied 429 U.S. 919 (1976); United States

ex rel. Latimore v. Sielaff, supra, at p. 696).

As suggested by the dissenting opinion below, if the

decision of the majority is permitted to stand, “closure would be

permissible in any case enumerated in section 4 of the Judiciary

Law,..., without requiring the court to articulate the reasons for

such action. The mere fact that the case involves a charge of

rape, for instance, would trigger the exercise of the court's dis-

cretion to exclude the public. Thus, closure, not public trial,

would be the norm in such cases." (Appendix, A-7).

Petitioner respectfully submits that the New York

Statute as written and applied to his case violates his right to

a public trial as guaranteed by the Sixth and Fourteenth Amendments

to our Constitution.

10

CONCLUSION

For the reasons set forth above, it is respectfully

submitted that this petition for writ of certiorari should be

granted.

Respectfully submitted,

EDWARD JOHN NOWAK

Attorney for Petitioner

P.O. Address:

Monroe County Public Defender's Office

36 West Main Street

Rochester, New York 14614

APPENDIX

TABLE OF CONTENTS

Date

Order Denying Application for Leave to

Appeal to the Court of Appeais...... 6 6 6 „ 0 „„ 1/7/82

Order of Appellate Division Affirming

Petitioner's Judgment of Conviction........... 11/13/81

Majority Opinion of the Appellate Division....... 11/13/81

Dissenting Opinion of the Appellate

lbs e e e e ee e e eee ee eee 11/13/81

Portion of Trial Transcript Regarding

sse OF Goo 6 11/17/76

Portion of Trial Transcript Indicating

Closure Of The GGG „6 11/17/76

11