United States of America Ex Rel. Robert W. Lloyd v. Leon J. Vincent, Superintendent, Green Haven Correctional Facility,respondent-Appellant

LUMBARD, Circuit Judge

(concurring):

I concur.’

Any judge of a court which is concerned with the prosecution of offenses against the narcotics laws knows all too well the great dangers and difficulties which face law enforcement officers who seek to get evidence and who appear as witnesses before grand juries and in courts of law. In no area of law en-; forcement have murder, mayhem and terror been more frequently used against disclosure and testimony. Against this background of judicial knowledge and notice, the undisputed assertion of the district attorney that the two witnesses were then “actively undercover agents with the Narcotics Squad of the Nassau County Police Department” was sufficient reason for the county judge’s action in closing the court to spectators during their testimony.¹

Moreover, the defendant gave the county judge no reason to believe that in this case such action would in any way prejudice the defense. Counsel’s only argument in opposing the state’s motion was to assert the right to a public trial.

Chief Judge Mishler in granting the writ relied largely on the failure of the state to make any showing, beyond the prosecutor’s unsworn assertion, that the confidentiality of the agents would be jeopardized and that their lives would be endangered. In most cases such a showing must be made, preferably by witnesses under oath, regarding the particular dangers and considerations in view of the circumstances of the particular case and the witnesses whose identity the state seeks to safeguard. Indeed, as Judge Hays points out, the better course would have been to hold an evidentiary hearing in this case.

1 . The subsequent testimony of the agents under oath confirmed the prosecutor’s assertion that they continued to be active undercover agents in Narcotics Squad of the Nassau County Police Department.