The essential facts are simple. To support the closure sought by the prosecution, the undercover claimed that he continued to work undercover in the Bushwick area of Brooklyn (where the alleged sale occurred), had several long-term investigations, had several "lost subjects" (i.e., persons from whom he purchased drugs but who have not yet been apprehended), and had been threatened by drug dealers in the past. He claimed that closure of the courtroom was necessary because disclosure of his identity would compromise his safety as well as his future effectiveness as an undercover drug buyer.
The undercover also claimed that he feared the presence of Rodriguez's relatives in the courtroom, since they may retaliate against him or disclose his identity if they saw him working in the neighborhood in the future (the record showed that Rodriguez's mother lived within a few blocks of where the alleged sale occurred, and that his brother lived in a nearby neighborhood). No evidence supported these fears, however. And the undercover admitted that he did not know Rodriguez's relatives and had no particular reason to believe that they would harm him or disclose his identity.
On this record, the Circuit held, the state court acted unreasonably in excluding Rodriguez's family. Principally, the Court pointed to its cases holding that exclusion of the defendant's family is a particularly serious matter that "requires stricter scrutiny than exclusion of the public" and will be upheld only if "the exclusion of that particular relative is necessary to protect the overriding interest at stake." Op. 7 (citing Yung v. Walker, 341 F.3d 104, 111 (2d Cir. 2003)); see also Carson v. Fischer, 421 F.3d 83, 91 (2d Cir. 2005) (same); Guzman v. Scully, 80 F.3d 772, 776 (2d Cir. 1996); Vidal v. Williams, 31 F.3d 67, 69 (2d Cir. 1994). Relying on these cases, the Court held that while the undercover's testimony supported the exclusion of the general public, it was insufficient to justify the exclusion of Rodriguez's family.
As the Court explained, "any alleged threat posed by a family member to an undercover's safety or effectiveness must be established by more than mere speculation. Instead, the trial court must make a particularized inquiry into whether exclusion of the family member was necessary to advance an overriding interest." Op. 13 (emphasis in original). And in this case, "there was no particularized inquiry into whether Rodriguez's family posed any threat to the undercover's safety or effectiveness beyond the conclusory statements of the undercover." Op. 13. "In fact, the trial court made no findings with respect to the mother or brother. . . . And there was no indication that either [family member] was dangerous, knew of [the defendant's] criminal activity, or was familiar with any of his associates." Id. (emphasis in original).
The Court rejected the state's attempt to rely on the fact that Rodriguez's mother and brother lived near the location of the alleged sale, concluding that "[m]ere proximity is not enough to establish a threat to the undercover's safety or efficacy." Op. 14. And the Court quickly dismissed the trial court's alternative proposal of a screen, explaining that "our ruling that any type of closure excluding Rodriguez's family was improper here makes it unnecessary to address 'alternatives to closure' under Waller's third prong." Op. 17.