Petition — Douglas v. Wainwright

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3 3 i Gg 3 3 Office - Supreme Court, U.S

FILED

NO. DEC 16 1983

IN THE

SXANDER U. STEVAS.

Supreme Court of the United: States «

October Term, 1983

HOWARD VIRGIL LEE DOUGLAS,

Petitioners,

vs.

LOUIE L. WAINWRIGHT,

Secretary,

Florida Department of Corrections,

and DAYID H. BRIERTON,

Superintendent of Florida State Prison,

Respondent.

On Cross-Petition for a Writ of Certiorari

to the United States

Court of Appeals for the

Eleventh Circuit

BRIEF OF PETITIONERS ON JURISDICTION

ELLIOTT C. METCALFE, JR.

LARRY HELM SPALDING

STEVEN M. GOLDSTEIN

Office of the Public Defender

2070 Main Street

Sarasota, Florida 33577

QUESTIONS PRESENTED

1. WHETHER A CRIMINAL TRIAL MAY BE

CLOSED TO THE GENERAL PUBLIC UPON THE

REQUEST OF THE PROSECUTION OVER A

DEFENDANT'S OBJECTIONS WITHOUT ANY

DEMONSTRATION THAT CLOSURE WAS NECESSI-

TATED BY SOME OVERRIDING GOVERNMENTAL

INTEREST.

2. WHETHER A CRIMINAL TRIAL COURT MAY

NEGATE A UNANIMOUS JURY VERDICT AT THE

PENALTY PHASE OF A CAPITAL TRIAL BY

CONSIDERING INVALID PKIOR CONVICTIONS.

3. MAY A DEATH SENTENCE BE CONSTITU-

TIONALLY IMPOSED BY A CRIMINAL TRIAL

JUDGE AFTER A JURY HAS RENDERED A LIFE

VERDICT.

TABLE OF CONTENTS

TABLE OF AUTHORITIES......eeee0.

OPINIONS BELOW. eeeeeeeeeeeeeeeee

JURISDICTION. eeenweeeseeeeeeeeneeee

CONSTITUTIONAL AND STATUTORY

) 8 ot 000 FPP eae

STATEMENT OF CASE... .eseeee cers

BASIS OF FEDERAL JURISDICTION...

REASONS FOR GRANTING THE WRIT...

CONCLUSION... ccccccccscsscssces

APPENDIX

TABLE OF AUTHORITIES

Cases Page

Arizona v. Rumsey

COTt .granted.wccccccccsecscecse 32,43

Barclay v. Florida

462 U.S. pp) eer 39

Beck v. Alabama

S67 G.8. Bee Cases vctciscccs

Benton v. Maryland

395 U.S. 784 (1969)....... oe as

Bullington v. Missouri

451 U.S. 430 (1981)......... 32,40

Burch v. Florida

343 Go.a8 Osi CFIA. B97 ccs 28

Chambers v. Florida

339 So.2d 204 (Fla. 1976)... 28

Coker v. Georgia

433 U.S. 593 (1977) .cccccece 35

Cole v. Georgia

U.S. S.Ct. 83-321

Cert.granted...cccccccesseee 26,43

Davis v. United States

249 F. 394 (8th Cir. 1979)... 19

Douglas v. State

373 So.2d 895 (Fla. 1979)... 11,30

Cases

Douglas v. State

TABLE OF AUTHORITIES

328 So.2d 18

cert.den.

429 U.S.

CONTINUED

(Fla.

871

1976)

(1976) .cccccccccccccccvecccs

Douglas v. Wainwright

714 F.2d 1532 (llth Cir.

ROEn i. veo bets e660 b606 6h46e%8

Douglas v. Wainwright

521 F.Supp.

790

(M.D.Fla.

Duncan v.

1981)...

391 U.S.

455 U.S.

Louisiana

eeeeseieeeeeeeeeneneeneeee#e

145 C29GCl cccscccece

104

Enmund v.

458 U.

Estes v.

381 U.

Eddings v. Oklahoma

(1982)... ccceee

Florida

Ss.

Texas

Ss.

(1982) -cccecce

Furman v. Georgia

408 U.S. 238 (1972) ....eee0e

Gannett Co. v. DePasquale

443 U.

S. 368,

99 S.Ct.

Saab eveosesceusesece

2898,

61 L.Ed.2d 973 (1980).......

1,11,29

1,5-6,

10-13,17,

23-24

1,11,29

36,39

TABLE OF AUTHORITIES

CONTINUED

Cases Page

Globe Newspaper Co. v. Superior

Court

U.S. ,

102 S.ct. 2613,

73 L.Ed.2d 248 (1982)....... 15

Jones v. Florida

322 So.2d 615 (Fla. 1976)... 28

Kampff v. Florida

371 So.2d 1007 (Fla. 1979).. 28

Lockett v. Ohio

638 8.8. S06 (iS7Eb caccsncss Bean

McKeiver v. Pennsylvania

403 U.S. 528 ig. } 41

Palko v. Connecticut

BES O.8. BED FROST cccecesse ae

Pell v. Procanier

SAF B.8. ORF CaSRS) cccosevse

Proffitt v. Florida

428 U.S. 768 CASTOR ccc caceces 33,34,

Richmond Newspapers, Inc. v.

Virginia

448 U.S. 555

100 S.Ct. 2814

65 L.Ed 2d 973 (1980)....... 15,16

iii

TABLE OF AUTHORITIES

CONTINUED

Cases Page

Roberts v. Louisiana

B20 U.B. 32D CAS PSdicccecece BF

Saxbe v. Washington Post Co.

417 U.S. 843,

94 S.Ct. 2811,

41 L.Ed.2d 514 (1974)....... 19

Swisher v. Brady

438 U.S. 204 ol. 40

United States v. Martin Linen

Supply Co.

Sae Balle SEG CAST bccoccecsecs 39

United States v. Sisson

399 U.S. 267 (1970).......-. 40

Wainwright v. Douglas

U.S. s§.Ct. Dra 646s66eeeee* 3

Waller v. Georgia

U.S. S.Ct. 83-321

cert. Granted... ..ceecsevees 26,42

Woodson v. North Carolina

428 U.S. 280 }\ oo, | eee 39

TABLE OF AUTHORITIES

CONTINUED

Constitutional Provisions Page

Fifth Amendment to the Constitu-

tion of the United States... 3

Sixth Amendment to the Constitu-

tion of the United States... 4

Fourteenth Amendment to the Con-

stitution of the United

PG 62 66 ORAS SR SHSECK ORES OS 4

28 U.S.C. Sec. 2254 se eee *e @@eeee 3,5,12

Statutes:

Alabama S.B. 241 SS 8-9

Lan bos 66> 66.68 6e. 6.08 606 08 be 31

Fla. Stat. 921.141(5) (b)....... 27

Indiana Stat.Anno. SS 35-35-2-9

ST « 5b 8% 0664666 6666060 ¢ks 31

Treatises:

Gillers, Deciding Who Dies

129 U. Penn.L. ev ’ -74.. 38

Other:

American Law Institute, Model

Penal Code: Sec. 210.6, 133

(Preliminary Official Draft

0 a er a 38

TABLE OF AUTHORITIES

CONTINUED

ABA Standards, Sentencin

Alternatives and Procedures,

Sec. 1.1, 47-48, Commentary

(Approved Draft 1968).......

The President's Commission on

Law Enforcement and Adminis-

trative Justice: The

Challenge of Crime in a

Free Society, Task Force

Report, The Courts 26.......

OPINIONS BELOW

The opinion of the United States

Court of Appeals is reported at Douglas

v. Wainwright, 714 F.2d 1532 (llth Cir.

1983). (App. 1-125) That decision

reviewed the judgment of the district

court reported at Douglas v. Wainwright,

521 F.Supp. 790 (M.D. Fla. 1981).

Opinions of the Supreme Court of Florida

are reported at Douglas v. State, 328

So.2d 18 (Fla. 1976), cert. den. 429 U.S.

871 (1976), and Douglas v. State, 373

So.2d 895 (Fla. 1979).

JURISDICTION

The United States Court of Appeals

by a two-to-one decision, on September

19, 1983, affirmed in part and reversed

in part the United States District

Court's denial of the defendant's peti-

tion for writ of habeas corpus. The

State of Florida filed a petition for

rehearing and suggestion of en banc

consideration of that part of the deci-

sion reversing on the right to counsel

issue involving the Sixth Amendment. The

state also filed a Motion to stay mandate

so that it could seek certiorari review

in this Court.

On October 21, 1983, both the

petition for rehearing and suggestion for

rehearing en banc were denied and on

October 26, 1983, an order was entered

staying mandate until November 21, 1983,

and continuance thereof being conditioned

upon the Clerk of this Court notifying

the Clerk of the Eleventh Circuit Court

of Appeals of the state's petition for

writ of certiorari being filed.

On November 18, 1983, a copy of the

state's petition for writ of certiorari

to the Eleventh Circuit Court of Appeals

was received by cross-petitioner. The

state's petition in Wainwright v. Douglas

in Case No. 83-817 in the Supreme Court

of the United States has pending a motion

filed by the state to defer consideration

of the petition for writ of certiorari.

The jurisdiction of this Honorable

Court is invoked pursuant to Title 28

U.S.C. Sec. 1254.

III

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Amendment V of the Constitution of

the United States provides that:

"No person shall be held to

answer for a capital, or

otherwise infamous crime,

unless on a presentment or

indictment of a Grand Jury,

except in cases arising in the

land or naval forces, or in the

Militia, when in actual service

in time of War or public

danger; nor shall any person be

subject for the same offense to

be twice put in jeopardy of

life or limb; nor shall be

compelled in any criminal case

to be a witness against him-

self, nor be deprived of life,

liberty, or property, without

due process of law; nor shall

private property be taken for

public use, without just

compensation."

Amendment VI of the Constitution of

the United States provides that:

"In all criminal prosecutions,

the accused shall enjoy the

right 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 ascer-

tained 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."

Amendment XIV of the Constitution of

the United States provides inter alia,

that:

"All persons born or naturaliz-

ed in the United States, and

subject to the jurisdiction

thereof, are citizens of the

United States and of the state

wherein they reside. No state

shall make or enforce any law

which shall abridge the privi-

leges or immunities of the

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 law.”

Title 28 U.S.C. Sec. 2254 (a)

provides that:

"The Supreme Court, a justice

thereof, a circuit judge or a

District Court shall entertain

an application for a Writ of

Habeas Corpus in behalf of a

person in custody pursuant to

the judment of a State Court

only on the ground that he is

in custody in violation of the

Constitution or laws or trea-

ties of the United States.”

STATEMENT OF THE CASE

Douglas was convicted of the murder

of Jessie Atkins. Douglas v. Wainwright,

714 F.zd 1532 (llth Cir. 1983). In the

second portion of the bifurcated trial,

the jury unanimously recommended life

imprisonment, rejecting the death penal-

ty. The trial court, however, notwith-

standing the jury's recommendation

imposed the death penalty. Id. at 1535.

The apparent motive surrounding the

homicide was a classic "love triangle”

between Douglas and the wife of the

deceased, Helen Atkins. Helen Atkins had

lived with Douglas for a year prior to

her marriage to the victim. During

her marriage, periods of separation

occurred, in which she maintained contact

with Douglas. Id. On July 16, 1973,

while Helen Atkins and her husband were

driving their vehicle, they were confronted

by Douglas who forced them off the road and

ordered them to proceed to a wooded area

near Brewster, Florida. Id. at 1536. At

gunpoint, Douglas forced the victim and

Helen Atkins to perform sexual acts and

then struck Atkins over the head with his

rifle and shot the victim in the head.

Id. Douglas then proceeded to engage in

sexual activities with Helen Atkins. Id.

Helen Atkins and her children proceeded

to live with Douglas for some nine days

after the homicide until authorities

independently found the victim's body.

Id.

At the trial, Helen Atkins was the

sole eye witness to the alleged crime and

was the prosecution's key witness. Id.

Prior to her testimony, on the state's

motion and over objection of Douglas'

counsel, the trial judge excluded the

general public from the courtroom. Id.

The following exchange occurred:

MR. CAMPBELL: I am making a motion

that due to the nature of the

testimony of the next witness, Helen

Atkins, that the Court order that

the Courtroom be cleared of all

except necessary Court personnel.

MR. KIRKLAND: The Defense will

object, because she's not a person

of young and tender years. There

are ladies on the jury that are

going to have to hear this and I

think she should confront society

with her testimony as well.

I think the Defendant has a

right to a fair trial and to a

public trial.

MR. CAMPBELL: Your Honor, I think

that regardless of whether shc's a

person of young and tender years -

I'm not sure how far that goes ...

THE COURT: Let me see you gentlemen

up here. (Counsel approached the

bench.)

THE COURT: Do you feel that this is

so embarrassing to her...

MR. CAMPBELL: It could be, Your

Honor.

THE COURT: ...do you feel this is

embarrassing to her or are you

trying to save the women in...

MR. CAMPBELL: I think its not only

embarrassing to her, Your Honor, I

think that it's such that I don't

see any reason for some of the

people in the audience to sit and

listen to this sort of testimony, as

I've indicated to the jury.

I don't see any reason that

anybody ought to hear it unless it's

absolutely necessary.

THE COURT: Is [sic] there any

members of the Defendant's family in

the audience?

MR. CAMPBELL: Yes,Your Honor.

THE COURT: How many?

MR. KIRKLAND: One or two.

THE COURT: Is the Press here?

MR. KIRKLAND: I assume there are

members of the Press.

THE COURT: Ladies and gentlemen, a

motion has been made that the - due

to the nature of the testimony as

anticipated by the State to be

produced - that the Courtroom be

cleared of all personnel who are not

part of the official actions in this

case.

Our Constitution and laws

provide for a public trial and this

is the right of every individual. I

wish to assure the guarantee of a

public trial and I will permit

members of the Defendant here. ...

MR. CAMPBELL: Then you ought to

also permit the members of the

family of the deceased.

THE COURT: ...and the members of

the family of Jessie William Atkins,

Jr. *e ef

MR. CAMPBELL: ...and Helen Atkins.

THE COURT: ...and Helen Atkins and

the representatives of the Press.

Other than that, I would like

everyone else to leave and - until

this phase of the case has been

completed. (The spectators left the

Courtroom).

After the jury recommendation of

life imprisonment, the trial court took

the sentence under advisement and

requested and received a presentence

investigation report for the purposes of

possibly identifying any mitigating

circumstances. Id. at 1536. The

presentence report on which the court

relied identified several prior felony

and misdemeanor convictions. Id. All but

one of the felony convictions had

previously been invalidated because they

were secured in violation of Douglas'

Sixth Amendment right to counsel. Id.

The trial court then sentenced Douglas to

death.

The conviction was affirmed by the

Florida Supreme Court in Douglas v.

State, 328 So.2d.18 (Fla.) (Douglas I)

cert. denied, 429 U.S. 871, 97 S.Ct. 185,

50 L.Ed. 2d 151 (1976), reh. denied, 429

U.S. 1055, 97 S.Ct. 770, 50 L.Ed.2d 771

(1977). The Florida Supreme Court

affirmed the denial of a subsequent

motion for state post-conviction relief,

but issued a stay of execution. Douglas

v. State, 373 So.2d 895 (Fla. 1979)

(Douglas II). Douglas then petitioned

for federal habeas relief which was

denied in all respects. Douglas v.

Wainwright, 521 F.Supp.790 (M.D.Fla.

1981).

On appeal, the Eleventh Circuit

Court of Appeals affirmed the district

judge in rejecting all of Douglas' claims

except reversed on the Sixth Amendment

right to counsel claim which determined

that Douglas was deprived of effective

assistance of counsel in the sentencing

phase of the proceedings. Douglas v.

Wainwright, 714 F.2d at 1557.

BASIS OF FEDERAL JURISDICTION

The basis of federal jurisdiction in

the Court of first instance was a peti-

tion for writ of habeas corpus filed

pursuant to Title 28, Sec. 2254 U.S.C.

REASONS FOR GRANTING THE WRIT

Public Trial

The initial question presented by

this petition deals with an accused's

right to a public trial guaranteed by the

Sixth and Fourteenth Amendments to the

Constitution. The precise issue present-

ed here has not previously been before

this Court for decision: whether a

criminal trial may be closed to the

general public upon the request of the

prosecution over a defendant's objections

without any demonstration that closure

was necessitated by some overriding

governmental interest. The opinion of

the court below recognized that this

court “has never specified whose pre-

sence, at a minimum, must be allowed to

ensure a defendant a constitutionally

guaranteed public trial”, and "has not

spoken on the proper approach to issues

raised when a criminal defendant alleges

his Sixth Amendment right to a public

trial has been violated." Douglas v.

Wainwright, supra, at 1537, 1538.

The right to a public trial is one

of the most cherished liberties guaran-

teed us by the Bill of Rights. To take

that right from a man facing the ultimate

penalty - death - strikes at the very

heart of the awesome responsibility

citizens repose in our government. The

public trial right "is not one belonging

to the public, but one belonging to the

accused, and inhering in the institu-

tional process by which justice is

administered." Estes v. Texas, 381 U.S.

532, at 588, (Harlan, J., concurring).

A criminal trial by its nature is an

action brought by the people in the name

of the state against an individual who is

thought to have violated an act forbidden

as against the welfare of society. All

citizens have a vital interest in such a

trial. They desire a defendant to have a

fair and impartial trial; they also are

interested in the state getting a fair

and impartial trial; they are interested

in how the judges, the prosecutor, the

police and jurors discharge their duties;

and how witnesses testify. The citizens

should not be required to get their

information of these important matters

through an edited or incomplete or biased

account furnished by a press that might

lean sympathetically to one party or the

other.

More recently, this Court expressed

in both the majority and dissenting

opinions “that open trials were part of

the common-law tradition." Gannet Co.

v. DePasquale, 443 U.S. 368, 99 S.Ct.

2898, 61 L.Ed.2d 973 (1980). Hence, “the

Bill of Rights was enacted against the

backdrop of the history of trial being

presumptively opened." Richmond News-

papers, Inc. v. Virginia, 448 U.S. 555,

at 575, 100 S.Ct. 2814, 65 L.Ed.2d 973

(1980). This Court has consistently

defended the public character of the

trial process with respect to attendance

of the press and public as encompassed

within the First Amendment. Globe News-

paper Co. v. Superior Court, U.S.-

, 102 S.Ct. 2613, 73 L.Ed.2d 248

(1982); Richmond Newspapers, Inc. v.

Commonwealth of Virginia, supra.

It would be difficult to fathom that

an accused's right to a public trial

under the Sixth and Fourteenth Amendments

would take second place to the right of

access guaranteed the public and press to

a criminal trial within the First Amend-

ment context. The record is devoid of

any identifiable basis founded upon

competent evidence and articulated

findings to support the closure. The

record finds only the merely lugubrious

complaint of the prosecutor and nothing

more overrode the accused's public trial

guarantee. The trial court conducted no

hearing, no balancing of the interests and

articulated no findings. It matter-of-

factly barred the public from the testimony

of "the sole eyewitness to the murder and

the witness on whose testimony the judge

relied on in finding the one aggravating

circumstance used to justify imposition

of the death penalty.” Douglas v.

Wainwright, supra. at 1541. "[Hjer

testimony was crucial to say the least.”

At the heart of the purpose of

public trial is that "(o]peness in court

proceedings may improve the quality of

testimony, induce unknown witnesses to

come forward with relevant testimony,

cause all trial participants to perform

their duties more conscientiously...”

Gannet Co. v. DePasquale, supra at 382.

Further, witnesses have proven to be more

truthful under the gaze of the public.

What impressions impacted the jury from

partial closure in this case? Did they

believe that this testimony deserved special

protection, or undue emphasis, or more

credibility than other witnesses? Did

the jurors share a special anguish for

the victim's family who were allowed to

remain? These questions cannot be

answered.

It is obvious that a violation of an

accused's right to a public trial would

present many speculative dangers which

would be impossible to prove. For this

reason, the public trial right, to be

given meaningful effect, must necessarily

preclude closure unless the very founda-

tion of the trial is jeopardized.

l. ‘Federal courts have routinely

refused to require a defendant to prove

prejudice once a violation of the right

to a public trial is shown. See, United

States v. Hernandez, 608 F.2d 741,

t Fe ; rtineau v. Perrin, 601

F.2d 1196, 1198 (Ist Cir. 1975); United

States v. Eisner, 533 F.2d 987, 9

Cir. 1576), cert. denied. 429 U.S. 919;

United States v. Kobli, 172 F.2d 919 (3rd

r. ; Unite tates ex rel.

ae v. Rundle, 419 F.2d 599 (ard Cir.

avis v. United States, 249 F. 394

(8th or :

It is not contended that this case

was a "Star Chamber" proceeding but a

more subtle and insidious

a public trial. To allow

of a criminal trial to be

sponte by the trial judge

the term "public" to mean

deprivation of

the attendants

selected sua

deftly scalpels

something quite

different from public attendance. Stated

otherwise, "(i]t is not essential to the

right of attendance that a person be a

relative of the accused, an attorney, a

witness, or a reporter for the press, nor

can these classes be taken as the exclu-

sive representatives of the public."

Davis v. United States, supra at 395.

This Court has recognized

that the press

has no constitutional access superior to

those enjoyed by ordinary

citizens.

Saxbe v. Washington Post Co., 417 U.S.

843, 94 S.Ct. 2811, 41 L.Ed. 2d 514.

Pell v. Procunier, 417 U.S. 817, 94 S.Ct.

2800, 41 L.Ed. 2d 495. Nor can the

press, as the alter ego of the citizenry,

assure the purposes of the public trial

guarantee and elevate a closed proceeding

to the open judicial forum intended by

the Framers of the Sixth Amendment.

By allowing the type of closure

here, special attention is drawn to the

witness. Those allowed to remain after

exclusion could very well subvert the

alleged purpose of the closure. Surely,

the nervous or embarrassed witness is

better protected and shielded by the

public, many of whom would be the friends

of or in sympathy with the witness. On

the other hand, an exclusion order

limited to family could create a more

hostile atmosphere depending upon the

size and number of a defendant's family.

How is a court to determine who may

remain and who must leave? Should

attorneys not participating in the trial

be excluded? Should law students be

excluded? Should journalism students be

excluded? Members of the legislature

studying the judicial function? How and

on what basis can one draw a legal

distinction between members of the

public? A, B, and C may stay, but D may

not? The perils of this type of closure

become obvious.

It is not contended that the public

trial right of the Sixth Amendment is

absolute. It is submitted that openness

must prevail absent a manifest necessity

to some overriding societal interest.

2. For example, Stamicarbon, N.V. v.

American Cyanamid, ° n ir.

1574) to protect trade secrets; United

States v. Bell, 464 F.2d 667 (2nd Cir,

), cert. den. 409 U.S. 991, to

protect confidentiality of hijacker

[Footnote 2 Continued]

profile. United States ex rel. Lloyd v.

Vincent (2nd Cir. 1975), cert. den. 423

U.S. 937, preserving confidentiality of

undercover agents.

Further, when any closure is requested in

a criminal case, a trial court must hold

a hearing to balance the interest in

question and clearly articulate define-

able reasons for exclusion of the public.

With respect to the closure here, the

absence of a hearing and articulable

findings created confusion in reviewing

the public trial question. As the lower

court recognized "[{iJn the habeas

proceedings below, contrary to the state

court finding that the reason for the

exclusion was protection of public

morality, the district court proceeded on

the assumption that the purpose of the

partial closure was ‘avoiding additional

and unnecessary insult to the dignity of

the witness.'" Douglas v. Wainwright,

Supra at 1544.

Taking either of the reasons for

closure in this case or both it is

difficult to comprehend the overriding

societal interest that would allow a

carte blanche exclusion of the public.

The main concern of a criminal trial is

not the protection of public morality or

embarrassment of witnesses. Many cases

may concern testimony possibly offensive

to members of the public. Blanket

exclusion is not necessary to protect

this interest. Trial courts can, out of

the presence of the jury, warn trial

attendants of potentially offensive or

shocking testimony and let those of the

public choose between remaining or

leaving the courtroom. The lower court

doubted that protection of public morali-

ty could justify even a partial closure.

Douglas v. Wainwright, supra at 1545. It

is clear that the extent of closure

utilized on a public morality basis is

unjustified when countered by the

accused's public trial right.

Secondly, the arguable basis for

exclusion herein is founded on potential

embarrassment of the widow-witness.

Kindness and compassion are indeed worthy

aims to all parties to a criminal trial.

The witness was a mature women with two

children. Douglas v. Wainwright, supra

at 1536. A multitude of criminal trials

present embarrassing testimony on the

part of witnesses. The mere fact that

testimony could be embarrassing does not

limit itself to this case. Douglas v.

Wainwright, supra at 1537. If potential

testimony could be embarrassing to a

witness then public trials would soon be

unusual and mere history. The trial

court undoubtedly acted out of sympathy

for the witness, an objective that could

have been totally well motivated.

However, a capital trial or any criminal

trial does not have as its focal point

the comfort and insulation of potentially

embarrassing testimony at the sacrifice

of an accused's constitutional rights.

Without reasoned inquiry of the witness

and others, makes it impossible to determine

whether manifest necessity required the

parameters of closure in this case or a

need for any closure. And even if this

interest may sometimes allow partial

closure, the total absence of any reason-

ed findings prevents a founded justifica-

tion for the deprivation of the Sixth

Amendment guarantee.

Consideration of Prior

Invalid Convictions

Obviously the petitioner's crime

took place in the context of a love-

triangle relationship, was motivated by

the tension, sexual jealousy and romantic

rivalry in which petitioner found himself.

A rational jury could have viewed the

sequence of events as a classical instance

of a crime of passion and thereby recon-

ciled the tragedy of the homicide with

the evidence of emotional disturbance

arising from the jealousy and frustration

which irrationally motivated petitioner.

As such, the jury could have rationally

viewed this case as involving a situation

of compelling mitigation and reasonably

concluded that this was not one of the

most aggravated and unmitigated of

capital crimes.

The past valid criminal record of

the petitioner involved a single convic-

tion for forgery. However, even if the

prior uncounseled convictions were

considered, this homicide was the accused's

first violent offense. Accordingly,

Florida's aggravating circumstance of

prior violent felony, found in Section

921.141(5) (b), Florida Statutes, would at

most, involve a prior record of non-

violent felonies. Thus petitioner could

not have been viewed as a career-violent

criminal. Accordingly, the past perpetra-

tion of non-violent offenses were unrelat-

ed to the crime of passion involved in

this case. Here, the jury could have

quite correctly considered the evidence

and reached a common-sense decision

against imposition of the death sentence.

When viewed in this way, as the jury

could have viewed it, the offense was not

without mitigation of the kind which has

been recognized to warrant imposition of

a life sentence under Florida law. See,

e.g., Burch v. State, 343 So.2d 831 (Fla.

1977) (frenzied attack upon victim found

to have been caused in part by defen-

dant's mental disturbance, sentence

reduced to life); Chambers v. State, 339

So.2d 204 (Fla. 1976) (heinous or atro-

cious nature of the crime explained by

mental or emotional disturbance, sentence

reduced to life); Jones v. State, 332

So.2d 615 (Fla. 1976) (aggravation

outweighed by mental deficiency, sentence

reduced to life); Kampff v. State, 371

So.2d 1007 (Fla. 1979) (obsession with

marriage and and brooding over impending

divorce found to be mitigating, sentence

reduced to life).

Thus the facts of this murder do not

significantly exceed the "norm" of

capital homicides as far as the cruelty

of the homicide itself. The murder may

well have been “unplanned” until the

sexual confrontation which resulted from

the factors of jealousy and emotional

disturbance noted above. Thus this crime

was not a premeditated murder, nor was it

the depraved killing during commission or

a felony for gain such as during a

robbery.

In this case the facts support a

unanimous jury's finding of mitigation in

accordance with this court's decision in

Lockett v. Ohio, 438 U.S. 586 (1978).

Both the trial court and the Florida

Supreme Court rejected the jury verdict

at the penalty phase as a direct result

of “considering” the prior invalid

convictions or “buttressing" the decision

based upon them. Douglas I, 328 So.2d at

22 and Douglas v. Wainwright,, 521

F.Supp. at 793.

This court should thus grant certio-

rari to review the consititutional issues

raised in the use of these prior invalid

convictions to negate a jury's finding of

mitigation in a capital case.

Imposition of Death Sentence

After Jury Recommendation

of Life Imprisonment

This court should grant certiorari

to review the constitutional question

present here regarding the use of the

death penalty in cases where the jury,

sitting as a penalty jury at trial, made

a determination that a life sentence

should be imposed. Petitioner submits

that the imposition of the deéeth sentence

in this circumstance violates the right

not to be twice placed in jeopardy of

life under the Fifth Amendment. This

issue was passed upon by the Florida

Supreme Court in its decision in this

case in Douglas v. State, 373 So.2d 895,

at 897 (Fla. 1979).

For a time Florida was alone among

jurisdictions providing by state law that

a trial judge may override a jury's

penalty recommendation for life or death.

Florida has been joined by Alabama and

Indiana which have recently enacted

statutes similarly providing that a trial

judge is empowered to impose a death

sentence when the trial jury has recom-

mended a sentence of life imprisonment.

Alabama S.B. 241, SS 8-9 (1981); Indiana

Stat's Anno. SS 35=-50-2-9 (1979).

A. The practice of imposing death

sentences where the jury, has found for

life after trying the facts under instruc-

tions of law, and using the reasonable

doubt standard, raises an issue unprece-

dented in over 700 years of Anglo-

American jurisprudence. The practice

involves an automatic appeal by the state

to the trial judge from a jury's verdict

for the defendant on the question of the

death penalty. In this case the jury was

presented with but two possible alterna-

tives, life imprisonment or the death

sentence.

The issue presented here under the

Fifth Amendment double jeopardy clause is

Similar to the issue presented to this

court in Arizona v. Rumsey, No. 83-226,

cert. granted, in which the Arizona

Supreme Court thought a similar question

had been decided by this court in

Bullington v. Missouri, 451 U.S. 430

(1981). This court held that the double

jeopardy clause of the Fifth Amendment

barred imposition of a death sentence on

retrial once the first trial jury had

determined that the defendant's life

should be spared. Id. Missouri permitted

retrial of the penalty issues upon a new

trial being granted at the behest of the

defendant, Florida's procedure permits

the jury's life recommendation to be

retried automatically when no new trial

is granted to the defendant on either

guilt or penalty issues. The practice of

allowing an appeal by the state from a

favorable jury decision for the accused

was disapproved in Benton v. Maryland,

395 U.S. 784 (1969), overruling Palko v.

Connecticut, 302 U.S. 319 (1937).

B. This court could not have

considered the constitutionality of this

practice in Proffitt v. Florida, 428 U.S.

242 (1976), where a jury recommendation

for death was involved and where the

court considered whether the statute's

procedure as a whole was capable of

producing consistent and rational results.

Note the statement of petitioner, State

of Florida, in petitioner's brief in

Proffitt v. Florida, page 78, that:

In this particular case, we are

not confronted with an over-

riding of a recommendation of

mercy, but rather unanimity as

between the jury and the trial

judge in concluding that death

was the appropriate sentence.

Not only was the issue not decided in

Proffit, but important considerations to

the determination of the issue could not

have been reviewed at that time as shown

by the following. The Court could not

have considered the substantial national

practice with regard to the legislative

response to Furman v. Georgia, 408 U.S.

238 (1972), in 1976. By now such national

consensus is apparent. Of thirty-two

jurisdictions including federal which

have adopted guided discretion death

penalty laws since Furman only three

permit death sentences after the trial

jury finds that the life of the defendant

should be spared. Under Duncan v.

Louisiana, 391 U.S. 145 (1968), the

national practice with respect to funda-

mental fairness in jury proceedings must

be based upon the common-law system as it

has developed "contemporaneously in

England and in this country." Id. at

145-150 n.14. A scheme of justice which

utilizes a jury fully on the issue of the

life or death of the defendant providing

for a full trial akin to that afforded on

issues of guilt or innocence, yet treats

the jury's decision for the defendant as

non-binding is alien to our system. See

United States v. Martin Linen Supply Co.,

430 U.S. 564 (1977), declaring that such

a practice would be totally alien to our

system.

Reference to the national practice

with reviewing death penalty procedures

has been an important criteria in deter-

mining the constitutional scope of the

death penalty. In Coker v. Georgia, 433

U.S. 593-597 (1977), this court surveyed

the national practice in determining

whether use of the death penalty was

unconstitutional for the rape of an adult

where homicide was not involved. In

Roberts v. Louisiana, 428 U.S. 325, at

366 (1976), the court reviewed national

legislative actions in determining that a

mandatory death penalty was unconstitu-

tional. In Enmund v. Florida, 458

U.S. ss (1982), an analysis of the

national experience in actual use of the

death penalty was considered in determin-

ing that the death penalty was unconsti-

tutional where applied to a defendant who

only abets an underlying felony. In

Beck v. Alabama, 447 U.S. 626, at 635-637

(1980), the national practice was utilized

in determining that a rule prohibiting

instructions on lesser-included offenses

in a trial of capital cases was unconsti-

tutional.

National scholarly and professional

legal opinion is also properly considered

in determination of due process questions

under the Fourteenth Amendment regarding

the constitutional scope of application

of the death penalty. Two sources

directly reviewed by this court in

Proffit, 428 U.S. at 252 n. 10 support

judicial sentencing in capital cases

limited by jury consent, or jury-judge

concurrence, that death is the appro-

priate sentence. See The American Bar

Association Project on Standards for

Criminal Sentencing, Sentencing Alterna-

tives and Procedures, Section l.l,

commentary (approved draft 1968) at

47-48, stating that strong reasons exist

for requiring jury consent for any death

penalty. See also The President's

Commission on Law Enforcement and Adminis-

tration of Justice: The Challenge of

Crime in a Free Society, Task Force

Report, The Courts 26, approving jury

discretion in capital sentencing but

distinguishing non-capital sentencing.

The Model Penal Code adopts, as the

proper relationship of judge and jury in

Capital penalty decisions, a system where

the trial judge is the final arbiter of

sentence but where a jury's decision

against death is final. American Law

Institute, Model Penal Code Section 210.6,

and Commentary at 133 (Preliminary Offi-

cial Draft 1962). See also, Gillers,

Deciding Who Dies, 129 U.Penn.L.Rev. 1,

at 39-74 (1980), concluding that jury

consent for use of the death penalty

should be required.

C. As it has done in other cases

raising significant questions recarding

the scope of the constitutional appli-

cation of a death penalty, this Court

should review this question on the

merits. The issue is one raising a

substantial and unresolved constitu-

tional question concerning the appli-

cation of the death penalty in circum-

stances involving (1) a mandatory death

sentence for first degree murder in

Woodson v. North Carolina, 428 U.S. 280

‘1976); (2) its use for a crime committed

against an adult where no homicide

occurs in Coker v. Georgia, supra; (3)

use of the death penalty where one

neither takes life nor intends that life

be taken in Enmund v. Florida, supra (4)

its use as punishment for those under 18

years of age; in Eddings v. Oklahoma, 455

U.S. 104 (1982), involving a 16 year old

defendant; (5) its use under a system

which precluded full consideration of

mitigating factors by the sentencing

authorities in Lockett v. Ohio, supra,

and most recently (6) its use where a

non-authorized factor is considered

together with sufficient authorized

factors to determine the crime to be

aggravated, in Barclay v. Florida, 462

U.S. (1983).

D. The role of the jury distin-.

guishes the present issue from those

involving findings or recommendations

made by a referee or master acting as an

assistant to the court in cases such as

Swisher v. Brady, 438 U.S. 204 (1978),

where this court concluded that where a

special master acted merely as a deputy

to the court there was but one continuing

jeopardy and no violation of the consti-

tution where tentative findings could be

rejected by the court. See United States

v. Sisson, 399 U.S. 267, at 334 (1970)

(dissenting opinion of Chief Justice

Burger) ("the Constitution gives an

accused the benefit of any mistakes in

his favor of the first jury he encoun-

ters” but does not extend this finality

to mistakes by judges.) As explained in

Bullington v. Missouri, supra, the

provision of a jury trial on issues

determinative of the death penalty, using

the reasonable doubt standard, with

instructions to the jury on the criteria

to be followed, held like a trial on

guilt or innocence, requires application

of the double jeopardy clause to bar

retrial of the penalty issues when the

jury has decided that the defendant does

not deserve to die.

Therefore, the petitioner need not

demonstrate that a jury is constitu-

tionally requird to pass upon the issue

of penalty in a capital case in order for

the decision of his jury favorable to him

on the question of life or death to be

constitutionally final. However, compare

McKeiver v. Pennsylvania, 403 U.S. 528

(1971), holding no right to jury trial

exists in juvenile delinquency proceed-

ings due to the fact that such proceed-

ings are designed to be rehabilitative,

and are ameliorative in that errors can

be corrected and the treatment or commit-

ment of the juvenile modified at any

time. Contrast the utter rejection of

rehabilitation where the death penalty is

involved.

Wherefore, the petitioner presents

an urgent and compelling question of

constitutional law which only this court

can resolve. The imposition of a death

penalty where the unanimous jury acting

as the conscience of the community has

decided that the life of the defendant

should be spared is a result which should

"shock the conscience" of the court under

the due process clause of the Fourteenth

Amendment. This cross-petition for

certiorari should be granted.

VII

CONCLUSION

For the same reasons that this

court granted certiorari review in

Waller v. Georgia, Case No. 83-321, and

Cole v. Georgia, Case No. 83-322, the

court should accept and decide the

important issues of the right to a

public trial under the Sixth and

Fourteenth Amendments.

Likewise, this court should accept

and decide the important issues of miti-

gation in capital cases and imposition

of the death sentence after a jury life

verdict. Cf. Arizona v. Rumsey , No.

83-226.

port

APPENDIX

TABLE OF CONTENTS

Decision of the Eleventh Circuit

Court of Appeals.........Pages 1 = 125

Howard Virgil Lee DOUGLAS

Petitioner-Appellant,

Vv.

Louie L. WAINRIGHT, Secretary, Florida

Department of Offender Rehabilitation,

and David H. Brierton, Superintendent of

Florida State Prison at Starke, Florida,

Respondents~-Appellees

No. 81-5927.

United States Court of Appeals,

Eleventh Circuit.

Sept. 19, 1983.

Before RONEY and KRAVITCH, Circuit

Judges and TUTTLE, Senior Circuit

Judge.

KRAVITCH, Circuit Judge:

Howard Virgil Lee Douglas was

convicted by Florida state court of

murder in the first degree. In the

second phase of a bifurcated trial, the

jury unanimously recommended life

imprisonment, rejecting imposition of

the death penalty. The trial judge,

however, found that the murder was

"especially heinous, atrocious and

cruel," that "no evidence of mitigating

circumstances was produced," and

imposed the death penalty. The con-

viction was affirmed by the Florida

Supreme Court in Douglas v. State,

328 So.2d 18 (Fla.) (Douglas I), cert.

denied, 429 U.S. 871, 97 S.Ct. 185, 50

L.Ed.2d 151 (1976), reh. denied, 429

U.S. 1055, 97 S.Ct. 770, 50

L.Ed.2d 771 (1977). The Florida

Supreme Court affirmed the denial of a

subsequent motion for state post-con-

viction relief but issued a stay of

execution. Douglas v. State, 373 So.2d

895 (Fla.1979) (Douglas II). Douglas

then petitioned for federal habeas

relief pursuant to 28 U.S.C. Sec. 2254.

The federal district court denied the

habeas corpus petition in all respects.

Douglas v. Wainwright, 521 F.Supp. 790,

807-08 (M.D. Fla.1981).

We affirm in part and reverse in

part and remand.

I. Background

Appellant was convicted of murder

of Jesse Atkins. The motive apparently

arose from a classic “love triangle” in

which Helen Atkins ("Atkins"), wife of

the deceased, had been romantically

involved with appellant, having lived

with him for a year prior to her

marriage to Mr. Atkins. She and her

husband were frequently separated and

Atkins and Douglas maintained contact

during that period.

On the afternoon of July 16, 1973,

twenty year old Atkins and her husband

drove to Bowling Green, Florida to

collect belongings from a trailer

Atkins rented and from which her

eviction was threatened. On the return

trip to Fort Green, appellant drove up

beside the Atkins and ordered them to

pull to the side of the road. Appel-

lant, armed with a rifle, got into

their car and ordered them to proceed

according to his directions. During

this trip the car became stuck on a

back road. All three walked to a

nearby mining operation where a man was

found who returned with a truck to

extricate the car. The three then

drove to a wooded area near Brewster,

Florida.

Appellant at gun point forced the

victim and Atkins to undress and

perform sexual acts, and then struck

Mr. Atkins on the head with his rifle,

shattering the rifle stock. Appellant

next fired multiple shots into the

victim's head.

tet,

abe

According to Atkins, she and

appellant drove away in the Atkins' car

until it again stalled. Appellant then

directed Atkins to engage in sexual

activities with him. Following this

they walked several miles to where

appellant's truck was parked and drove

to the trailer home of Atkins' mother-

in-law to pick up her two children.

Atkins testified that she did not tell

her deceased husband's parents about

the murder because of appellant's

threats to kill them all. Atkins,

Douglas and the children all returned

to the scene of the murder where Atkins

and Douglas dragged the body into some

underbrush and covered it. They then

started the Atkins' automobile which

Atkins drove away. Douglas followed

driving his own truck. Atkins and her

children lived with Douglas at her

trailer for nine days following the

murder, until authorities independently

discovered Mr. Atkins' body.

Douglas was indicted on charges of

first degree murder, tried by a jury

and convicted. At trial, Atkins, as

the only eyewitness to the crime, was

the prosecution's key witness. During

her testimony, on motion by the state

and over the objection of defense

counsel, the judge excluded the general

public from the courtroom. The fami-

lies of the defendant, the witness, and

the decedent and members of the press

were allowed to remain.

At the sentencing phase of the

bifurcated trial, the jury recommended

imposition of a life sentence. After

taking the sentence under advisement

for ten weeks, the trial judge issued

an order of Judgment and Sentence,

adjudging appellant guilty and imposing

the death penalty. Before imposing

sentence the trial judge requested and

received a presentence investigation

report to be used to identify any

mitigating circumstances. The pre-

sentence report on which the court

relied identified several prior felony

and misdemeanor convictions of appel-

lant. All but one of the felony

convictions previously had been invali-

dated because they were "uncounseled

convictions" imposed in disregard of

Appellant's right to counsel.

II. Public Trial Issue

Douglas contends that his Sixth

and Fourteenth amendment right to a

public trial, as applied to the states

through the Fourteenth amendment,

Duncan v. Louisiana, 391 U.S. 145, 88

S.Ct. 1444, 20 L.Ed.2d 491 (1968); In

re Oliver, 333 U.S. 257, 68 S.Ct. 499,

92 L.Ed. 682 (1948), was violated by

the exclusion of members of the general

public from the courtroom during the

testimony of Atkins, who was the prose-

cution's key and only eye witness to

the crime. Conceding that the right to

a public trial is not absolute and that

it must, in some instances be balanced

against other competing societal

interests, appellant argues alterna-

tively that even if the exclusion did

not violate his public trial right per

se, the trial judge's failure to hold a

hearing on the exclusion motion or to

make findings as to the necessity for

the closure violated appellant's sixth

amendment right.

Immediately prior to Atkins'

testimony concerning the events leading

up to and following the death of her

husband, the state moved for the

exclusion from the courtroom "of all

except necessary Court personnel.”

Douglas v. Wainwright, 521 F.Supp. 790,

795 (M.D. Fla. 1981). The colloquy

between the parties was as follows:

MR. CAMPBELL: I am making a

motion that due to the nature of

the testimony of the next witness,

Helen Atkins, that the Court order

that the Courtroom be cleared of

all except necessary Court per-

sonnel.

MR. KIRKLAND: The Defense will

object, because she's not a person

of young and tender years. There

are ladies on the jury that are

going to have to hear this and I

think she should confront society

with her testimony as well.

I think the Defendant has a

right to a fair trial and to a

public trial.

MR. CAMPBELL: Your Honor, I think

that regardless of whether she's a

person of young and tender years -

I'm not sure how far that

goes

THE COURT: Let me see you gentle-

men up here. (Counsel approached

the bench.)

THE COURT: Do you feel that this

is so embarrassing to her

MR. CAMPBELL: It could be, Your

Honor.

THE COURT: —__ do you feel this

is embarrassing to her or are you

trying to save the women in

MR. CAMPBELL: I think its not

only embarrassing to her, Your

Honor, I think that it's such that

I don't see any reason for some of

the people in the audience to sit

and listen to this sort of testi-

mony, as I've indicated to the

jury.

I don't see any reason that

anybody ought to hear it unless

it's absolutely necessary.

THE COURT: Is [sic] there any

members of the Defendant's family

in the audience?

MR. CAMPBELL: Yes, Your Honor.

THE COURT: How many?

MR. KIRKLAND: One or two.

THE COURT: Is the Press here?

MR. KIRKLAND: I assume there are

members of the Press.

Id. at 795, quoting II Trial Tran-

script 213-14. The judge then in-

structed the jury:

THE COURT: Ladies and gentlemen,

a motion has been made that the -

due to the nature of the testimony

as anticipated by the State to be

produced - that the Courtroom be

cleared of all personnel who are

not part of the official actions

in this case.

Our Constitution and laws

provide for a public trial and

this is the right of every indi-

vidual. I wish to assure the

guarantee of a public trial and I

will permit members of the family

of the Defendant here.

MR. CAMPBELL: Then you ought to

also permit the members of the

family of the deceased.

THE COURT: —_ and the members

of the family of Jessie William

Atkins, Jr.

MR. CAMPBELL: and Helen

Atkins.

THE COURT: and Helen Atkins

and the representatives of the

Press. Other than that, I would

like everyone else to leave and -

until this phase of the case has

been completed. (The spectators

left the Courtroom.)

Id. at 793-94, quoting II Trial Trans-

cript 214-15.

The United States Supreme Court

has never specified whose presence, at

a minimum, must be allowed to ensure a

defendant a constitutionally guaranteed

public trial. But see In re Oliver,

333 U.S. 257, 259, 68 S.Ct.499, 500, 92

L.Ed. 682 (1948) (conviction for

contempt with only judges and perhaps

staff members and prosecution present

violates right to public trial).

However, Justice Harlan, in his con-

curring opinion in Estes v. Texas, 381

U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543

(1965), stated:

Essentially, the public trial

guarantee embodies a view of human

nature, true as a general rule,

that judges, lawyers, witnesses,

and jurors will perform their

respective functions more respon-

T. “In all criminal prosecutions, the

accused shall enjoy the right to a speedy

and public trial ...." Amendment VI,

United States Constitution.

sibly in an open court than in secret

proceedings. A fair trial is the

objective, and "public trial" is an

institutional safeguard for attaining

it.

Thus, the right of "public trial"

is not one belonging to the public, but

one belonging to the accused and

inhering in the institutional process

by which justice is administered.

Obviously, the public trial guarantee

is not violatec if an individual member

of the public cannot gain admittance to

a courtroom because there are no

available seats. The guarantee will

already have been met, for the “public”

will be present in the form of those

persons who did gain admission. Even

the actual presence of the public is

not guaranteed. A public trial implies

only that the court must be open to

those who wish to come, sit in the

available seats, conduct themselves

with decorum, and observe the trial

process.

Id. at 588-89, 85 S.Ct. at 1662-63

(citations omitted).

Beyond this, even though the

Supreme Court has in several cases

addressed the contours of the first

amendment right of the public and press

to attend criminal proceedings, Globe

Newspaper Co. v. Superior Court,

U.S. , 102 S.Ct. 2613, 73

L.Ed. 2d 248 (1982); Richmond News-

paper, Inc. v. Commonwealth of

Virginia, 448 U.S. 555, 100 S.Ct. 2814

65 L.Ed.2d 973 (1980); Gannett Co. v.

DePasgquale, 443 U.S. 368, 99 S.Ct.

2898, 61 L.Ed.2d 608 (1979), the Court

has not spoken on the proper approach

to issues raised when a criminal

defendant alleges his sixth amendment

right to a public trial has been

violated. We interpret the Court's

analysis in the first amendment

right of access cases, however, as

helpful to the analysis of a claim of

deprivation of a sixth amendment right

to a public trial. See Globe Newspaper

Co. v. Superior Court, supra; Richmond

Newspapers, Inc. v. Virginia, supra;

Gannett Co. v. DePasquale, supra.

In Aaron v. Capps,, 507 F.2d 685,

687-88 (5th Cir. 1975), the only

binding precedent in this circuit on

the issue before us,” the court's

2. in Bonner v. City of Prichard

661 F.2d 2306 (llth <= 1961) (enbanc)

this circuit adopted as precedent the

decisions of the former Fifth Circuit.

decision that the defendant was not

deprived of a public trial was based

primarily on the fact that, in the

particular circumstances, the presence

of certain persons sufficed to preserve

the public nature of the proceedings.

In the words of the court: "([T)he fact

that some members of the public were

barred from the courtroom does not

necessarily mean that a denial of a

public trial has occurred; the ‘'deci-

sion must turn on the particular

circumstances of the case, and not upon

a question-begging because abstract and

absolute right to a ‘public trial'."

Id. at 687, quoting Levine v. United

States, 362 U.S. 610, 616-17, 80 S.Ct.

1038, 1042-43, 4 L.Ed.2d 989 (1960).

In Aaron, the general public was

3 The

excluded during a rape trial.

relatives of both the defendant and the

victim, the defendant's clergyman,

courtroom personnel, all attorneys and

the press were allowed in the court-

room. Id. The court held there was no

violation of the public trial right

because: “some members of the public

were admitted; the courtroom was at

least three-fourths full; the tran-

script of the trial became public

record. Particularly important is the

fact that the news media were admitted.

The published reports of the trial were

3. The exclusion order was made pursuant

to Article VI, Section 169 of the Alabama

Constitution of 1901, which was repealed

in 1973, and read: "In all prosecutions

for rape and assault with intent

to ravish, the court may, in its dis-

cretion, exclude from the courtroom all

persons, except such as may be necessary

to the conduct of the trial.”

lengthy and complete. The defendant's

relatives and clergymen were present to

provide moral support and comfort to

the accused." Id. at 687-88. The

court determined that the presence of

these persons, combined with the actual

press coverage of the trial, adequately

served the purposes underlying the

public trial right, id., and the ”

‘defendant received[(d] every safeguard

insured by a trial open to the general

public.' " Id, at 688, quoting Note, 45

Mich.L.Rev. 474, 479 (1937).

Relying on Aaron v. Capps, there-

fore, we should consider whether in the

proceedings in question the purposes

underlying the constitutional mandate

of a “public” trial are met, even

though certain persons are not present

or allowed to be present. In other

words, the practical impact of the

partial closure must be evaluated. Id.

{1) Prior to the recent Supreme

Court decisions on the first amendment

right of access, several of the United

States Courts of Appeals decided that a

defendant's right to a public trial was

not violated when the closure was

partial, in tat family members and/or

the press were allowed to remain, and

the exclusion of the public was

narrowly limited in scope to a legiti-

mate purpose for which it is ordered.

United States ex rel. Latimore v.

Sielaff, 561 F.2d 691, 694-96 (7th Cir.

1977) (to protect dignity of witness in

rape trial); United States v. Eisner,

533 F.2d 987, 993-94 (6th Cir.),

cert denied, 429 U.S. 919, 97 S.Ct. 314,

50 L.Ed.2d 286 (1976) (to protect witness

with fear of testifying in public);

United States ex rel. Bruno v. Herold,

408 F.2d 125 (2d Cir. 1969) (to protect

witness afraid of testifying); United

States ex rel. Orlando v. Fay, 350

F.2d 967 (2d Cir. 1965), cert. denied

sub nom. Orlando v. Follette, 384 U.S.

1008, 86 S.Ct. 1961, 16 L.Ed.2d 1021

(1966) (to protect witnesses from intimi-

dation); Geise v. United States, 262 F.2d

151, 155 (9th Cir. 1958), cert. denied,

361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80

(1959) (to protect child witnesses in

rape trial from embarrassment). Others

held that even where the closure is

total and the press and family members,

as well as the general public, are

excluded, but only for a limited,

justifiable purpose and period of time,

the public trial guarantee is honored.

United States v. Hernandez, 608 F.2d

741, 747-48 (9th Cir. 1979) (to protect

witness and his family where safety

threatened); United States ex rel.

Lloyd v. Vincent, 520 F.2d 1272, 1274

(2d Cir.), cert. denied. 423 U.S. 937,

96 S.Ct. 296, 46 L.Ed.2d 269 (1975) (to

preserve confidentiality of undercover

agents in narcotics case);

Stamicarbon, N.V. v. American

Cyanamid Co., 506 F.2d 532, 539-42 (2d

Cir. 1974) (to protect from disclosure

of trade secrets). But see United

States ex rel. Bennett v. Rundle 419

F.2d 599, 607-08 (3d Cir. 1969) (writ

of habeas granted because exclusion of

public did not meet "standard of strict

and inescapable necessity” where jury

had retired from courtroom for hearing

on suppression of evidence and only

purpose of exclusion was to protect the

defendant); United States v. Kobli,

172 F.2d 919 (3d Cir. 1949) (conviction

reversed where exclusion of public for

protection of public morals swept too

broadly; exclusion of only youthful

spectators would have been

appropriate); Tanksley v. United

States, 145 F.2d 58 (9th Cir. 1944)

(conviction reversed where only press,

necessary courtroom personnel and

family members allowed throughout the

trial).

Thus the law is clear that the

right to a public trial is not absolute

and must in some instances give way to

other substantial interests essential

to the fair administration of justice.

United States v. Hernandez, 608 F.2d at

747; United States ex rel. Latimore

v. Sielaff, 561 F.2d at 694; United

States v. Eisner, 533 F.2d at 993;

United States ex rel. Lloyd v Vincent,

520 F.2d at 1274; Geise v. United

States, 262 F.2d at 155-57. See Aaron

v. Capps, 507 F.2d at 687; Lacaze v.

United States, 391 F.2d 516, 521 (5th

Cir. 1968). See also Note, The

Accused's Right to a Public Trial,

42 Notre Dame Lawyer 499, 503-04 (1967);

Note, The Right to a Public Trial in

Criminal Cases, 41 N.Y.U.L.Rev. 1138,

1144-47 (1966)

[2] The recent Supreme Court

right of access cases make equally

clear, however, that one who seeks to

justify closure of a criminal trial

carries a heavy burden. Globe News-

paper Co. v. Superior Court, U.S.

at __, 102 S.Ct. at 2620 (where the

state obtains exclusion of the public

and the press and press asserts a first

and fourteenth amendment right of

access to criminal trials, closure must

be justified by "a compelling govern-

mental interest, and [be] narrowly

tailored to serve that interest");

Richmond Newspaper, Inc v. Virginia,

448 U.S. at 581, 100 S.Ct. at 2829

(opinion of Burger, C.J., White &

Stevens, JJ.) (where court, without

objection from prosecutor or defendant,

seeks closure and press asserts first

and fourteenth amendment right of

access, closure is unjustified

"{a)bsent on overriding interest

articulated in findings"); Id. at 598,

100 S.Ct. at 2839 (Brennan & Marshall,

JJ., concurring in judgement); Id. at

600 & n. 5, 100 S.Ct. at 2840 & n. 5

(Stewart, J., concurring in judgement).