I have added a case to the Pending Second Circuit cases page. This oversight actually kind of bugs me a little because it is my own oversight. I previously wrote about the COA grant here. But then I lost track of it. And I am happy that it's now back on my radar since it's an interesting case.
Downs v. Lape, 09-4723-pr
- Argument Date: 3/15/11
- Lower Ct Info: 08-CV-0092, 2009 WL 3698134 (EDNY Oct. 30, 2009) (RJD)
- In Circuit: Dist Ct COA
- Issues: Procedural Default/Right to a public trial
Here is what I said about the case previously:
An odd little case. Issue concerns the exclusion of a 12-year-old member of petitioner's family from the courtroom. The Appellate Division held that the claim was unpreserved. DJ goes through an in-depth analysis as to whether the claim is procedurally defaulted. DJ points out that, while defense counsel did mention something about the right to a public trial during his argument, it wasn't really enough to move the trial court to create a record as to why the family member is being excluded. Since the defense failed to make the adequate record, then DJ was forced to say that the claim was procedurally defaulted.
Nevertheless, DJ goes on to discuss the state of the law as to the exclusion of family members from the courtroom. DJ points out that Waller is the controlling law and Waller only analyzes establishes the four-part test, but does not specifically relate to family members. The Supreme Court has, in dicta, mentioned a sort of heightened protection for family members in a case called Oliver. However, the Second Circuit has recently stated that it's not a part of the AEDPA deference cases since it's dicta. Despite that case, DJ does say that a court can't ignore the "uncompromising tone" of the language in Oliver and the Second Circuit has been "steadfast[ly] loyal" to the decision. On the other hand, there is some Second Circuit authority that suggests that the exclusion of family members for a limited time period is "trivial." DJ suggests that there could be two standards here that could lead to different results: (1) Waller; or (2) Waller plus Oliver minus triviality.
Due to the competing precedents and the openness of these questions, DJ says that the court shouldn't resolve them and it should be left up to the Circuit. So grants COA on these broad questions. Of course, the Second Circuit may never go anywhere near these questions if it should agree with the DJ that the claim is procedurally defaulted. It's not the cleanest context in which to send a case up to the Second Circuit. But I have been complaining about the stinginess of COA's, so I am just happy to see that one was granted.
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