Bell v. Jarvis

Rehearing en banc granted by order
filed 2/23/00; published opinion
filed 12/2/99 is vacated
Filed: January 4, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7002
(CA-97-232-5-H)
Ernest Sutton Bell,
Petitioner - Appellant,
versus
Mack Jarvis, et al,
Respondents - Appellees.
O R D E R
The court amends its opinion filed December 2, 1999, as
follows:
On page 10, line 3 of second indented quotation -- the phrase
“factors to be considered” is corrected to read “factors to be
weighed.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ERNEST SUTTON BELL,
Petitioner-Appellant,
v. No. 98-7002
MACK JARVIS; ROBERT SMITH,
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-97-232-5-H)
Argued: June 11, 1999
Decided: December 2, 1999
Before MURNAGHAN and TRAXLER, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Reversed and remanded by published opinion. Senior Judge Butzner
wrote the majority opinion, in which Judge Murnaghan joined. Judge
Traxler wrote a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Kathryn L. VandenBerg, NORTH CAROLINA PRIS-
ONER LEGAL SERVICES, INC., Raleigh, North Carolina, for
Appellant. Ellen Bradshaw Scouten, Special Deputy Attorney Gen-
eral, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellees. ON BRIEF: Michael F. Easley, Attor-
ney General of North Carolina, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
_________________________________________________________________
OPINION
BUTZNER, Senior Circuit Judge:
Ernest Sutton Bell appeals the district court's dismissal of his peti-
tion for habeas corpus. Bell challenges his convictions for rape and
other sexual offenses on the ground that his appellate counsel failed
to argue that the trial court, despite an objection, improperly closed
the courtroom. Because Bell's appellate counsel was constitutionally
ineffective, we reverse and remand the case for conditional issuance
of the writ of habeas corpus.
I
Bell was indicted for raping and otherwise sexually assaulting his
step-granddaughter, Wendy Harris, between March 1990 and May
1992. Following a jury trial, Bell was convicted in the Pitt County,
North Carolina, Superior Court on January 14, 1994, of eight counts
of first-degree rape, four counts of first-degree sexual offense, nine-
teen counts of second-degree rape, and twenty-seven counts of taking
indecent liberties with a minor. The trial court sentenced Bell to two
life terms plus seventy years.
Bell frames the issue on appeal before this court as follows:
"Whether the District Court erred in denying the petition for writ of
habeas corpus based on ineffective assistance of appellate counsel,
where appellate counsel failed to raise on direct appeal the issue that
Petitioner's right to public trial was violated." Appellant Br. at 2.
Bell raised numerous claims on direct appeal. Although Bell's
counsel assigned error to the closing of the courtroom, she did not
brief the issue before the state intermediate appellate court, the Court
of Appeals. Deeming the claim abandoned, the Court of Appeals did
not discuss it. The Court of Appeals found no merit in the contentions
2
counsel had briefed on appeal. See State v. Bell, 117 N.C. App. 732,
453 S.E.2d 877 (1995) (table).
Bell subsequently filed a motion for appropriate relief in the Pitt
County Superior Court, in which he contended that his counsel on
direct appeal was ineffective for failing to raise the public trial claim.
The Superior Court summarily denied Bell's motion, State v. Bell,
No. 92 CRS 12536 et al. (N.C. Sup. Ct. Pitt County, Nov. 8, 1996),
and the North Carolina Court of Appeals rejected Bell's petition for
certiorari. State v. Bell, No. COAP96-591 (N.C. Ct. App. Dec. 31,
1996).
On April 9, 1997, Bell filed the instant petition in the District Court
for the Eastern District of North Carolina. The magistrate judge con-
cluded that Bell's counsel had provided ineffective assistance for fail-
ing to present a meritorious public trial claim. The magistrate judge
recommended that Bell be granted a new direct state appeal. The dis-
trict court rejected the magistrate judge's recommendation, holding
that appellate counsel was not ineffective because the trial court did
not err in closing the courtroom, and it granted summary judgment in
favor of the State, dismissing Bell's habeas petition. Bell v. Jarvis, 7
F. Supp. 2d 699 (E.D.N.C. 1998).
II
Bell must exhaust his state court remedies before this court may
examine the merits of his claims. See 28 U.S.C.A. § 2254(b)(1) (West
Supp. 1999). Bell raised his ineffective assistance claim in his petition
for state postconviction relief and his subsequently denied petition for
certiorari before the North Carolina Court of Appeals.
Recently, the Supreme Court held that the exhaustion doctrine
requires that state prisoners "file petitions for discretionary review
when that review is part of the ordinary appellate procedure in the
State." O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1733 (1999). The
Court explained: "The particular question posed by this case is
whether a prisoner must seek review in a state court of last resort
when that court has discretionary control over its docket." Id. at 1731.
The Court held that an Illinois state prisoner seeking federal habeas
relief had not exhausted his state remedies when he failed to present
3
certain claims, on direct appeal, in a petition for certiorari before the
Supreme Court of Illinois. Id.Bell did not petition the North Carolina Supreme Court for discre-
tionary review of the Court of Appeals' decision on direct appeal.
North Carolina prisoners who are convicted at trial and lose their
direct appeal before the Court of Appeals may petition the state
Supreme Court for discretionary review. See N.C. Gen. Stat. § 7A-
31(a) (1995).
Bell, however, fully litigated his ineffective assistance claim in
state postconviction proceedings. North Carolina provides, by statute,
that state prisoners seeking postconviction relief may petition the
Court of Appeals for a writ of certiorari. See § 15A-1422(c)(3)
(1997). Decisions of the Court of Appeals concerning postconviction
motions are final and may not be reviewed by the North Carolina
Supreme Court. See §§ 7A-28(a) (1995), 15A-1422(f) (1997). Bell
has given the North Carolina courts "one full opportunity to resolve
any constitutional issues by invoking one complete round of the
State's established appellate review process." O'Sullivan, 119 S. Ct.
at 1732.
The exhaustion doctrine is premised on notions of comity and is
not jurisdictional. Rose v. Lundy, 455 U.S. 509, 515 (1982). The state
may concede exhaustion by unconditionally waiving the requirement.
Sweezy v. Garrison, 694 F.2d 331 (4th Cir. 1982). The State did so
before the district court, expressly conceding:
Petitioner has raised the substance of his present claims in
the courts of North Carolina as required by 28 U.S.C.
2254(b)(1)(A) (1996). He has thereby exhausted state reme-
dies.
J.A. 102-03.
Procedural default is not an issue in this case; the state courts did
not decide, and the State does not claim, that Bell is procedurally
barred from raising the issue that is the subject of this appeal.
4
III
The Antiterrorism and Effective Death Penalty Act of 1996 estab-
lishes the applicable standard of review. See Lindh v. Murphy, 521
U.S. 320, 336 (1997). The Act provides that the writ may issue if the
adjudication of petitioner's claim on the merits by state courts "re-
sulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1) (West
Supp. 1999). If the state court decision is in "square conflict" with a
Supreme Court precedent that is controlling as to law and fact, the
writ should issue. Green v. French, 143 F.3d 865, 870 (4th Cir. 1998).
In the absence of controlling precedent, section 2254(d)(1) is satisfied
"only when the state courts have decided the question by interpreting
or applying the relevant precedent in a manner that reasonable jurists
would all agree is unreasonable." Id.IV
The First Amendment to the United States Constitution prohibits
any law "abridging the freedom of speech, or of the press." U.S.
Const. amend. I. The Sixth Amendment provides that "[i]n all crimi-
nal prosecutions, the accused shall enjoy the right to a speedy and
public trial." U.S. Const. amend. VI. As Chief Justice Burger
explained in an opinion for the Court, "[t]he right to a public trial is
a shared right of the accused and the public, the common concern
being the assurance of fairness." Press-Enterprise Co. v. Superior
Court of California, 478 U.S. 1, 7 (1986) (Press-Enterprise II). The
Supreme Court in Waller v. Georgia, 467 U.S. 39 (1984), held that
"the explicit Sixth Amendment right of the accused is no less protec-
tive of a public trial than the implicit First Amendment right of the
press and public." Id. at 46. When analyzing the propriety of trial clo-
sure under either the First or Sixth Amendment, a court is required to
conduct the same searching inquiry. See id. at 47-48 (holding that sat-
isfaction of the Sixth Amendment requires meeting the First Amend-
ment "tests set out in Press-Enterprise [Co. v. Superior Court of
California, 464 U.S. 501 (1984) (Press-Enterprise I)] and its pre-
decessors").
By guaranteeing that criminal trials shall be open and public, the
Constitution affirms an adjudicative tradition originating before the
5
Norman Conquest. See Press-Enterprise I, 464 U.S. at 505. An open
courtroom promotes honest testimony, the appearance of witnesses
otherwise unknown, and conscientious performance by all trial partic-
ipants. See Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979).
With the knowledge that "every criminal trial is subject to contempo-
raneous review in the forum of public opinion," a defendant's triers
are kept "`keenly alive to a sense of responsibility and to the impor-
tance of their functions.'" In re Oliver, 333 U.S. 257, 270 and n.25
(1948) (citation omitted). In this manner, a public trial operates "as
a safeguard against any attempt to employ our courts as instruments
of persecution." Id. at 270.
Although the public trial guarantee was created for the defendant's
benefit, see Waller, 467 U.S. at 46, the right also serves a broader pur-
pose: securing public confidence in the criminal justice system gener-
ally, and in a trial verdict particularly. See Globe Newspaper Co. v.
Superior Court, 457 U.S. 596, 602-06 (1982) (confirming that the
public has a First Amendment right of access to a courtroom). A pub-
lic trial gives citizens information necessary to understand and discuss
their justice system. Id. at 604-05. Just as importantly, "people not
actually attending trials can have confidence that standards of fairness
are being observed; the sure knowledge that anyone is free to attend
gives assurance that established procedures are being followed and
that deviations will become known." Press-Enterprise I, 464 U.S. at
508. As this court has recognized, visible standards of fairness benefit
the defendant and the public:
The right to a public trial is not only to protect the accused
but to protect as much the public's right to know what goes
on when men's lives and liberty are at stake, for a secret
trial can result in favor to as well as unjust prosecution of
a defendant.
Lewis v. Peyton, 352 F.2d 791, 792 (4th Cir. 1965). Additionally, an
open trial can ameliorate the emotions and reactions engendered by
criminal acts. See Press-Enterprise I, 464 U.S. at 508-09. This thera-
peutic benefit will be especially important where a defendant stands
accused of violent acts. See id.The Sixth Amendment establishes a strong presumption in favor of
a public criminal trial. This right, however, is not absolute. See Globe
6
Newspaper Co., 457 U.S. at 606. "[T]he right to an open trial may
give way in certain cases to other rights or interests, such as the
defendant's right to a fair trial or the government's interest in inhibit-
ing disclosure of sensitive information." Waller, 467 U.S. at 45. In
Press-Enterprise I, the Court stated that the strong presumption in
favor of openness may be overcome "only by an overriding interest
based on findings that closure is essential." 464 U.S. at 510. "Such
circumstances will be rare." Waller, 467 U.S. at 45.
Before a trial court may close a courtroom, four conditions must
be satisfied: (1) the party seeking closure must advance an overriding
interest likely to be prejudiced if the courtroom remains open; (2) clo-
sure must be no broader than necessary to meet that interest; (3) the
trial court must consider reasonable alternatives to closure; and (4) the
court must make "findings adequate to support the closure." Waller,
467 U.S. at 48.
Before Bell's trial, the prosecution moved that the courtroom be
closed during testimony of the minor prosecuting witness. In its
entirety, this discussion ran as follows:
Prosecutor: . . . And Judge, we have an outstanding
motion I forgot to bring up earlier that the State had about
closing the courtroom when at least Wendy testifies or all
of the children testify at the appropriate time.
The Court: Is there any objection to that motion?
Counsel for Bell: Yes, sir, we would object to closing the
courtroom. We believe that would impact on our client's
constitutional right to a public trial. We would oppose it.
The Court: Well --
Prosecutor: I would argue that that is contrary to case law
in this state. [Apparently the prosecutor was referring to
N.C. Gen. Stat. § 15-166 (1983), which permits the trial
court to exclude bystanders from sex offense trials.]
7
The Court: The Court is going to allow that motion and
we'll do it in the most discreet way possible so the jury
doesn't even notice it unless someone else calls it to their
attention. We can take a short recess, and I can excuse the
jury and I can then tell the others--other people in the court-
room that this is testimony of an apparent delicate nature. I
don't see anything wrong with that. I am going to allow that
motion.
J.A. at 280-81.
The trial court, at the suggestion of the prosecutor, closed the
courtroom during the empaneling of the jury, the court's introductory
statements to the jury, the attorneys' opening statements, and the testi-
mony of the prosecutrix. The trial court permitted family members
and friends of the prosecutrix to remain, but other persons were
excluded from the courtroom. At one point during the testimony of
the prosecutrix, the court admonished the remaining spectators to stop
nodding and otherwise encouraging the witness. The record does not
indicate conclusively whether the courtroom was closed during the
testimony of the other two minor witnesses. There is no record
whether members of the press, if present at trial, were excluded, but
the trial court excluded "other people" in the courtroom and its order
was broad enough to exclude the press.
The North Carolina Court of Appeals outlined testimony in the
case:
The sixteen-year-old prosecuting witness, hereinafter
referred to as Jane Doe, testified that in March of 1990,
while spending the weekend with defendant, who is her
step-grandfather, and her grandmother, she awoke to find
defendant lying naked on her bed. Defendant rubbed her
"butt," put his finger in her vagina, rubbed her breasts,
"french kissed" her, put his penis inside her vagina and rec-
tum, and put his tongue in her vagina. Defendant also put
her hand on his penis and told her to rub it back and forth.
Thereafter, whenever she spent the weekend at defendant's
house, approximately once or twice per month, defendant
would "put his penis in [her] vagina." Defendant would also
8
come to her house and engage in sexual intercourse with her
after school about two times per week. Jane Doe never told
anyone except a friend, Vicki M., about these incidents
because defendant threatened "not to love her" if she told.
She eventually told her mother and aunt about defendant's
activities with her in late May of 1992.
Vicki M. testified that she spent a Saturday night with
Jane Doe at defendant's house in 1990 and that as the two
girls played on the floor with a dog, defendant joined them
and touched Vicki's breasts, vagina and butt. The next day,
she asked Jane Doe whether defendant had touched her pri-
vate parts. Jane Doe told her defendant had touched her and
had sex with her. Jane Doe told her all of the details. In May
of 1992, Vicki M. spent the night with Jane Doe at the
defendant's residence. During the night, defendant came in
and put his hand under her clothes, and touched her breasts,
vagina and butt.
Toni A. testified that she sometimes spent the weekend
with Jane Doe, defendant and his wife. While defendant's
wife was away, defendant touched [Toni A.'s] vagina,
breasts and butt with his hand and penis. Defendant also put
his penis and fingers in her vagina. Defendant threatened to
hurt her sister if she told. On one occasion, she and Jane
Doe were staying at defendant's house when she heard Jane
Doe, who was alone with defendant, cry for help. Toni A.
went inside and found Jane Doe crying.
Jane Doe's mother, Jane Doe's aunt and a detective testi-
fied regarding statements made to them by Jane Doe about
the incidents. A pediatrician testified that he examined Jane
Doe on 3 June 1992 and observed that her vagina appeared
to be wider than usual for a child her age, and that he could
not find a hymen. He testified that "if there was a hymen
there originally, then in order for it to become as flattened
and nonapparent as it was it would take repeated stretching
and repeated penetration."
9
Defendant testified and denied molesting Jane Doe.
Defendant's wife testified that defendant shared a bed with
her and that she would know if he got out of bed.
State v. Bell, 117 N.C. App. 732, 453 S.E.2d 877 (1995) (table).
(Reproduced in J.A. 57-59).
Bell argues that none of the four conditions of the test in Waller
were met in the present case.
We first must consider whether the prosecution advanced an inter-
est justifying the courtroom closure. Courts cannot close a courtroom
for the sole reason that a young victim of a sex crime will testify:
A trial court can determine on a case-by-case basis whether
closure is necessary to protect the welfare of a minor victim.
Among the factors to be weighed are the minor victim's
age, psychological maturity and understanding, the nature of
the crime, the desires of the victim, and the interests of par-
ents and relatives.
Globe Newspaper Co., 457 U.S. at 608 (footnotes omitted). See also
Davis v. Reynolds, 890 F.2d 1105, 1110 (10th Cir. 1989)
("Considerations of a victim's age and the nature of the offense
involved support a closure only when they form part of a careful case-
by-case analysis of each individual situation.").
In the instant case, the trial court knew before trial that the prosecu-
tion intended to elicit testimony from the minor witnesses that might
be embarrassing. But the court made no attempt to determine, on a
case-by-case basis, the necessity of closing the courtroom during the
testimony of the minor witnesses. The court failed to inquire, for
example, about the maturity and understanding of the prosecuting wit-
ness or about her willingness to testify. Moreover, the court made no
inquiry about the other minor witnesses. Indeed, at trial, the pro-
secutrix, who was then 16 years old, directly answered the questions
put before her, including those of a distressing nature. The trial court
knew before trial that one of the minor witnesses was reluctant to dis-
cuss a physical examination. But the prosecutor never asked her about
10
this subject at trial. Because the trial court failed to inquire about the
minor witnesses' ability to testify and failed to make relevant find-
ings, we cannot conclude in this case that the government advanced
an interest sufficient to justify closing the courtroom.
The second prong of the Waller test requires that the closure be
only as broad as necessary to meet the interest at stake. The nonexis-
tence of factual findings renders us unable to determine the impor-
tance of the interest at stake. Therefore, we cannot agree with the
prosecutor that closure was sufficiently tailored to meet that interest.
For instance, nothing in the record suggests that the trial court had
information allowing it to decide whether it was necessary to close
the courtroom during the testimony of just one of the minor witnesses
or for all three.
Nor are we persuaded that the trial court satisfied the third prong,
which requires that the trial court consider alternatives to closing the
courtroom. Waller, 467 U.S. at 48. Nothing in the record suggests that
the trial court considered any alternatives to closure.
The fourth prong requires that the trial court make findings ade-
quate to support closing the courtroom. Waller, 467 U.S. at 48. The
trial judge indicated that he was closing the courtroom during "testi-
mony of an apparent delicate nature." J.A. 281. This fact alone is
insufficient to warrant closure: "Where . . . the State attempts to deny
the right of access in order to inhibit the disclosure of sensitive
information, it must be shown that the denial is necessitated by a
compelling governmental interest, and is narrowly tailored to serve
that interest." Globe Newspaper Co., 457 U.S. at 606-07 (emphasis
supplied). We conclude that there is a reasonable probability that the
trial judge's statement was insufficient to satisfy the requirements of
the Sixth Amendment.
The Supreme Court has consistently and clearly required that trial
courts make specific, on-the-record findings in support of closure. See
Press-Enterprise II, 478 U.S. at 13-14 ("proceedings cannot be closed
unless specific, on the record findings are made" demonstrating that
closure is essential and narrowly tailored); Waller, 467 U.S. at 45, 48(findings must be adequate to support closure, and may not be "broad
and general"); Press-Enterprise I, 464 U.S. at 510 (findings must be
11
sufficiently specific for appellate review); Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 581 (1980) ("Absent an overriding
interest articulated in findings, the trial of a criminal case must be
open to the public.") (plurality opinion).
The Fourth Circuit also has emphasized the necessity of findings
that justify closure. See, e.g., In re South Carolina Press Ass'n, 946
F.2d 1037, 1040-44 (4th Cir. 1991) (relying upon Press-Enterprise I);
In re Charlotte Observer, 882 F.2d 850, 852-56 (4th Cir. 1989) (clo-
sure order reversed because of lack of judicial findings); In re Knight
Publ'g Co., 743 F.2d 231, 234-35 (4th Cir. 1984) ("If the district
court believes it necessary to close the courtroom after hearing the
objections [to closure], it must state its reasons on the record, sup-
ported by specific findings.").
In Waller, the trial judge closed the courtroom during a suppression
hearing after ruling that some evidence was related to alleged offend-
ers not yet on trial. 467 U.S. at 42. The state's proffer failed specifi-
cally to identify whose privacy rights would be violated, how those
rights would be violated, and which portions of taped evidence would
infringe other's rights. Id. at 48. The Supreme Court held that as a
result the trial court's findings were "broad and general" and failed to
satisfy the public trial guarantee of the Sixth Amendment. Id.We decline to accept the State's invitation to search the record for
facts supporting closure. Some of the concerns cited by the State--the
age of the victims, the traumatic nature of the assaults, the distress of
testifying--while understandable, are present when any young victim
of sexual assault testifies in court. If a reviewing court relied upon
these factors, it would, in effect, be adopting a rule permitting closure
whenever a young victim of sexual assaults testifies. The Supreme
Court has rejected such a rule. See Globe Newspaper Co., 457 U.S.
at 607-08. We do not hold that such factors are irrelevant to a trial
court considering a motion to close the courtroom. But the Sixth
Amendment requires that consideration of these concerns be on the
record and occur in the context of a case-by-case examination of the
competing interests at stake. See Waller, 467 U.S. at 48; Press-
Enterprise II, 478 U.S. at 13-14; In re Knight Publ'g Co., 743 F.2d
at 234-35. Moreover, we may not rely on after-the-fact concerns par-
ticular to the present case, such as the prosecution's pretrial proffer
12
that a witness was reluctant to discuss her physical examination.
Actually, the proffer was not apt because during the trial the prosecu-
tor did not ask the witness to testify about the physical examination.
The requirement of specific, on-the-record findings is intended to
give appellate courts a basis for determining the propriety of closure.
See Press-Enterprise I, 464 U.S. at 510. This function is nullified if
reviewing courts, on habeas appeal, must search the record to under-
stand why the trial court closed the courtroom.
We do not consider that an affidavit, filed pursuant to 28 U.S.C.A.
§ 2245 (West 1994), providing findings of fact submitted to the dis-
trict court by the Pitt County trial judge four years after trial conclu-
sively justifies closure. Posttrial assertions "cannot satisfy the
deficiencies in the trial court's record." Waller, 467 U.S. at 49 n.8.
Even if we did consider the affidavit, it would be of little help. As the
magistrate judge found, the trial judge's affidavit "says little more
than he knew the child was young, the attacker was old, and the
crimes alleged were heinous." J.A. 185. The district court paid scant
heed to the affidavit.
Our holding is consistent with that of other courts of appeals that
have considered the issue of closure. See English v. Artuz, 164 F.3d
105, 109 (2d Cir. 1998) (the trial court made insufficient findings
when it concluded only that closure was warranted by "the totality of
the evidence and in particular the sworn testimony of [a] witness.");
Guzman v. Scully, 80 F.3d 772, 776 (2d Cir. 1996) ("conclusory" jus-
tifications are insufficient). In Davis v. Reynolds, 890 F.2d 1105 (10th
Cir. 1989), the defendant was accused of raping a 16-year-old girl. Id.
at 1107. Asserting that the victim's psychological and emotional con-
dition warranted closure, the prosecution moved that the public be
excluded from the courtroom during the victim's testimony. The trial
court granted the prosecution's motion, citing only the girl's age. Id.
at 1108-09. The Tenth Circuit held that Davis' right to an open trial
was violated because the trial court failed to inquire into the factual
basis for the government's assertions and because the court failed to
make factual findings in support of closure. Id. at 1110. The Tenth
Circuit went on to note that without specific findings except the vic-
tim's age, the trial court's order was "essentially equivalent to the
blanket legislative closure rejected in Globe Newspaper." Id. at 1111.
13
The State argues that the Fifth and Eighth Circuits have found no
Sixth Amendment violation where trial courts have closed courtrooms
without detailed findings. See United States v. Osborne, 68 F.3d 94,
99 (5th Cir. 1995); United States v. Farmer, 32 F.3d 369, 371 (8th
Cir. 1994). In Osborne, the court upheld the closure on the facts pre-
sented, which included specific supporting details offered by the pros-
ecutor at the time of the motion. 68 F.3d at 99. Nevertheless, the Fifth
Circuit admonished courts to "take care to develop a record of the
issues, and make detailed factual findings." Id. In another case, the
Eighth Circuit upheld a closure on facts that it had gleaned from the
record. Farmer, 32 F.3d at 371. Because the Supreme Court and this
court have mandated that trial courts make specific, on-the-record
findings in support of closure, we decline to follow this holding.
In Osborne, the Fifth Circuit also adopted a standard allowing a
"partial closure" of trial proceedings upon a showing that there was
a "`substantial reason' for the closure." 68 F.3d at 98-99 (citing other
courts that have adopted the same standard). The Supreme Court,
however, has never contemplated a less rigorous constitutional
requirement for trial closures, and neither has the Fourth Circuit. We
therefore adhere to the standard articulated by the Court in Waller.
Moreover, the trial judge never articulated the basis of even a substan-
tial reason for closure other than "testimony of an apparent delicate
nature." J.A. 281.
V
In Waller, the Court explained that a "defendant should not be
required to prove specific prejudice in order to obtain relief for a vio-
lation of the public-trial guarantee." 467 U.S. at 49. Relying on courts
of appeal and state opinions, the Court emphasized that prejudice
"must necessarily be implied." 467 U.S. at 49 n.9 (citations and inter-
nal quotation marks omitted).
Waller is among the few cases designated as an example of struc-
tural error. See Johnson v. United States, 520 U.S. 461, 469 (1997)
(citing Waller). A structural error is a "defect affecting the framework
within which the trial proceeds, rather than simply an error in the trial
process itself." 520 U.S. at 468 (internal quotation marks and citation
omitted).
14
In Neder v. United States, 119 S. Ct. 1827 (1999), the Court again
recognized that denial of the right to a public trial as depicted in
Waller was a structural error and held that "[e]rrors of this type are
so intrinsically harmful as to require automatic reversal (i.e., `affect
substantial rights') without regard to their effect on the outcome."
Such errors "defy analysis by harmless error standards." Id. at 1833(citation and internal quotations omitted).
VI
Claims of ineffective assistance of counsel are mixed questions of
law and fact, Strickland v. Washington, 466 U.S. 668, 698 (1984),
reviewable de novo. Becton v. Barnett, 920 F.2d 1190, 1192 (4th Cir.
1990). "The benchmark for judging any claim of ineffectiveness must
be whether counsel's conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied upon as hav-
ing produced a just result." Strickland, 466 U.S. at 686. An ineffective
assistance claim has two components: counsel's performance must
have been deficient, and the defendant must have been prejudiced by
counsel's conduct. Id. at 687. The right to effective assistance of
counsel extends to criminal defendants on their first appeal of right,
and the same standards apply to counsel at trial and on appeal. See
Evitts v. Lucey, 469 U.S. 387, 396 (1985).
In order to establish that counsel's performance was deficient, the
defendant "must show that counsel's representation fell below an
objective standard of reasonableness." Strickland, 466 U.S. at 688. In
order to make a fair assessment of attorney performance, a reviewing
court must make every effort "to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from the counsel's perspective
at the time." Id. at 689. Under the Strickland standard, therefore,
counsel's competence is presumed, and "the defendant must rebut this
presumption by proving that his attorney's representation was unrea-
sonable under prevailing professional norms and that the challenged
action was not sound strategy." Kimmelman v. Morrison, 477 U.S.
365, 384 (1986).
The particular error alleged by Bell is that his counsel failed to pur-
sue his Sixth Amendment public trial claim on direct appeal. In mak-
15
ing such decisions, appellate counsel need not raise every colorable
claim but may, instead, select the most promising issues for appeal.
Jones v. Barnes, 463 U.S. 745, 752, 754 (1983). Nevertheless, when
counsel fails to brief "significant and obvious" issues on appeal for no
apparent reason, "while pursuing issues that were clearly and signifi-
cantly weaker," the competence of counsel is called into question.
Mayo v. Henderson, 13 F.2d 528, 533 (2d Cir. 1994); accord Gray
v. Greer, 800 F.2d 644, 646 (7th Cir. 1986). In Matire v. Wainwright,
811 F.2d 1430, 1438-39 (11th Cir. 1987), for example, the Eleventh
Circuit found ineffective assistance of counsel when appellate counsel
ignored "a substantial, meritorious Fifth Amendment issue" that was
"obvious on the record" and on which trial counsel had expressly
objected. Id. at 1438. Similarly, Bell's appellate counsel omitted to
brief a significant meritorious issue that was obvious on the record
and instead pursued issues that the appellate court found lacked merit.
Cf. Gray, 800 F.2d at 646.
At the time of Bell's appellate counsel's conduct in late 1994 and
early 1995, the mandate of the Supreme Court that trial courts make
specific, on-the-record findings before closing a courtroom was well
established. See, e.g., Press-Enterprise II, 478 U.S. at 13 (1985);
Waller, 467 U.S. at 48 (1984); Press-Enterprise I, 464 U.S. at 510(1984).
In addition, during the pendency of Bell's appeal, the North Caro-
lina Court of Appeals relied upon Waller to reverse a rape and kid-
naping conviction. State v. Jenkins, 115 N.C. App. 520, 525-26, 445
S.E.2d 622, 625 (1994). As in the instant case, the trial court in
Jenkins had failed to make findings of fact supporting closure during
the testimony of the prosecuting witness. Id. The Court of Appeals
decided Jenkins in June 1994, five months after Bell was convicted
and seven months before argument in his direct appeal. Bell's appel-
late counsel certainly would have been able to rely on Jenkins, even
if it was handed down after she filed the appellate brief. See N.C. R.
App. P. 27, 37 (allowing parties to file motions at any time before the
case is called for oral argument).
As in Matire, the Sixth Amendment claim here was obvious on the
record, which shows that trial counsel explicitly objected to the clo-
sure on the grounds that it would "impact" on his "client's constitu-
16
tional right to a public trial." J.A. 280-81. In view of the controlling
Supreme Court and North Carolina precedent and the paucity of find-
ings of fact made by the trial court, it was unreasonable of counsel
to fail to argue the public trial claim on appeal.
The preliminary presumption that counsel was competent has been
rebutted, and there is no evidence that counsel's failure to pursue the
claim was sound strategy. The record provides no strategic explana-
tion for appellate counsel's decision to drop the public trial claim.
Bell's appellate counsel did not testify, nor did she supply an affida-
vit, that she made a tactical decision not to brief the public trial claim.
Precedent bars us from "conjur[ing] up tactical decisions an attorney
could have made, but plainly did not . . . . Tolerance of tactical mis-
calculations is one thing; fabrication of tactical excuses is quite
another." Griffin v. Warden, 970 F.2d 1355, 1358-59 (4th Cir. 1992).
We hold that Bell's appellate counsel provided assistance that fell
outside "`the range of competence demanded of attorneys in criminal
cases.'" Strickland, 466 U.S. at 687 (citation omitted).
The second component of an ineffective assistance claim is preju-
dice. Bell must prove that his counsel's unprofessional errors resulted
in an unfair or unreliable proceeding. Lockhart v. Fretwell, 506 U.S.
364, 368-72 (1993). Application of controlling precedent establishes
that Bell's right to a public trial was violated. See supra Section IV.
On direct appeal, Bell's counsel could have shown, but did not, that
the violation of his Sixth Amendment right to a public trial was not
amenable to harmless error analysis and instead required automatic
reversal. See Neder, 119 S. Ct. at 1833; Waller, 467 U.S. at 49. Omis-
sion of the public trial claim from the appellate brief thereby rendered
the proceeding unreliable. For this reason, we hold that Bell was prej-
udiced by appellate counsel's failure to pursue the public trial claim.
VII
We turn finally to the question of the appropriate remedy. Congress
has directed federal courts to dispose of habeas petitions "as law and
justice require." 28 U.S.C.A. § 2243 (West 1994). This provision
grants courts wide latitude in affording habeas relief. See, e.g.,
Carafas v. LaVallee, 391 U.S. 234, 239 (1968) ("[The habeas stat-
17
ute's] mandate is broad with respect to the relief that may be
granted.").
The Supreme Court has directed that the remedy should be appro-
priate to the Sixth Amendment violation. See Waller, 467 U.S. at 50.
The Court has also counseled that in the habeas context, state courts
should be given an opportunity to remedy errors that occurred at the
state level. See, e.g., Hilton v. Braunskill, 481 U.S. 770, 775 (1987).
We direct that the writ should issue and Bell be released, unless North
Carolina elects to afford him within 180 days a new appeal or a new
trial. Accord Mayo, 13 F.3d at 537.
REVERSED AND REMANDED
TRAXLER, Circuit Judge, dissenting:
With respect, I dissent. In this case, Wendy was called upon to tes-
tify that Bell, her 58-year-old step-grandfather, sexually molested her
by vaginal and anal intercourse, oral sex, and other indecent sexual
touchings, approximately twice a week for two years, beginning when
she was 12 years old. The state trial judge, presented with indictments
comprised of over 80 counts of alleged sexual misconduct by Bell
towards Wendy, conducted a pre-trial hearing, during which he was
made aware of the heinous nature of the alleged crimes, the child's
long silence, and her forecasted testimony. He concluded that tempo-
rarily closing the courtroom during Wendy's difficult testimony
would be appropriate. His concern was justified; her testimony was
lurid.
The Supreme Court has specifically recognized that trial judges
may, in their discretion, exclude the press and general public from the
courtroom during the testimony of a child victim of a sexual crime,
without running afoul of a defendant's Sixth Amendment right to a
public trial, so long as such closure orders are made on a "case-by-
case basis." Globe Newspaper Co. v. Superior Court, 457 U.S. 596,
608 (1982). However, unlike the majority, I do not believe that trial
courts are required to state the obvious in order for us to "determine
whether [a] closure order was properly entered," Waller v. Georgia,
467 U.S. 39, 45 (1984) (internal quotation marks omitted), or that the
absence of explicit findings mandates a presumption on our part that
18
the state trial court did not consider the individual circumstances of
the case before it. Requiring us to evaluate the closure based solely
on explicit findings by the trial court, even where the record readily
supports the result, places form over substance and, here at least,
results in federal habeas relief for a defendant who has obviously not
been deprived of his Sixth Amendment right to a public trial. Accord-
ingly, were de novo review appropriate in this case, I would not hold
that Bell's Sixth Amendment right to a public trial was violated, nor
would I deem Bell's appellate counsel deficient for not arguing the
public trial claim on direct appeal.
Of course, our standard of review is not de novo. The crux of my
dissent, therefore, lies not in how I or other members of this court
would resolve the matter on de novo review, but in the recognition
that we are not empowered to do so. Rather, we are limited to a deter-
mination of whether the North Carolina court has rendered a "deci-
sion that [is] contrary to, or involve[s] an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States." 28 U.S.C.A. § 2254(d)(1) (West Supp. 1998);
see Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998) (holding
that writ may not issue unless, "after an independent review of the
applicable law," we conclude that the state court decision was con-
trary to or involved an unreasonable application of those legal princi-
ples).
Accordingly, our precedents are helpful, but not dispositive. And,
the relevant inquiry is not whether "there is a reasonable probability
that the trial judge's statement was insufficient to satisfy the require-
ments of the Sixth Amendment," Majority Op. at 11, or whether we
should decline to follow, as the majority has done, the holdings of
other circuits which have approved of a limited or temporary closure
in the absence of detailed findings if sufficient support for the closure
can be gleaned from the record. Instead, the question is whether in
light of these precedents we can really say that the decision of the
North Carolina court was an unreasonable application of clearly
established federal law. Because other circuits have applied Supreme
Court precedent in a manner consistent with North Carolina's denial
of Bell's Sixth Amendment claim, and in a manner which I find to
be reasonable, I cannot conclude that North Carolina's denial of
Bell's claim was an unreasonable application of clearly established
19
federal law and would affirm the district court's denial of habeas
relief.
I.
In order to determine whether North Carolina's denial of Bell's
claim is contrary to or involves an unreasonable application of clearly
established federal law, I begin with a recitation of the facts as they
were presented at the state trial court level.
In January 1994, Bell was convicted of 58 counts of sexual miscon-
duct committed against his minor step-granddaughter Wendy -- 8
counts of first degree rape, 4 counts of first degree sexual offense, 19
counts of second degree rape, and 27 counts of taking indecent liber-
ties with a minor.1 The offenses spanned a two-year period, beginning
in March 1990, when Wendy was awakened on a Saturday morning
by Bell, who proceeded to rape her while she begged him to stop.
Afterwards, Bell told Wendy that he would stop loving her if she told
anyone what he had done. Wendy was 12 years old and in the sixth
grade. Bell was 55 years old, a family member and trusted adult fig-
ure in Wendy's life, known to her since birth.
The threat was effective. For the next two years, Bell, who lived
nearby, molested Wendy once or twice each month in his home, while
his wife was sleeping or at work, and approximately twice a week at
Wendy's home, and in her bed, during her after-school hours. Wendy,
too frightened to tell her parents about the abuse, began to withdraw
from others and to sleep on the floor instead of in her bed. In addition,
Wendy's schoolwork, already made difficult by her learning disabil-
ity, began to deteriorate.
Evidence at trial revealed that, in addition to Wendy, Bell had sex-
ually molested two other adolescent girls, both of whom lived nearby
and were friends of Wendy. The first, Toni, testified that Bell had
repeatedly molested her by vaginal and anal intercourse, over the
course of approximately one year, and that Bell utilized threats of
hurting her sister to keep her from telling anyone. Toni also testified
_________________________________________________________________
1 The record indicates that 27 additional counts were dismissed during
the course of the trial.
20
that she was present at Bell's home on one occasion when he sexually
molested Wendy. Locked outside of the house, Toni testified that she
could overhear Wendy's screams. Toni was 11 years old when the
abuse began.
The third minor, Vicki, testified that while visiting Bell with
Wendy in the fall of 1990, Bell touched her breasts, anus, and vagina
through her clothing. At the time, Bell's wife was cooking dinner and
Vicki, unsure of what had occurred, got up from the floor where she
had been playing with a puppy and sat on the couch. The next day,
Vicki asked Wendy if Bell had done anything like this to her, prompt-
ing Wendy to confide in her young friend. At the time, Vicki was 12
years old. Afterwards, Wendy continued to confide in Vicki about
Bell's actions, but Vicki kept silent. She also refused Wendy's
requests that Vicki go with her to Bell's home. In May 1992, how-
ever, Vicki finally agreed to again accompany Wendy to Bell's home,
hoping Bell would leave Wendy alone if Vicki was present. Instead,
Bell turned his attention to Vicki. While Bell's wife and Wendy slept,
Bell again touched Vicki in the same places, although this time he did
so beneath her clothing. Vicki was able to temporarily avoid further
assault, first by telling Bell she needed to go to the restroom, and later
by the stirrings of Bell's sleeping wife. Undaunted, Bell repeated
these actions the following day, while swimming with Vicki and
Wendy. Like her friends, Vicki continued her silence.
In fact, each of the girls kept quiet until June 1992, when Wendy
and Vicki attended a slumber party together and saw a television
show about rape and the sexual molestation of children. Vicki told
Wendy that she "couldn't take it anymore, [and] was telling [her] par-
ents the next day when [she] got home." J.A. 451. Wendy agreed to
do the same. The following afternoon, Wendy told her mother and
aunt about Bell's sexual abuse, and law enforcement officers were
contacted. Shortly thereafter, Wendy was examined by a pediatrician
who found physical evidence consistent with repeated sexual penetra-
tion.
The day before Bell's trial began, the state trial judge held a pre-
trial hearing to address several evidentiary issues, Bell's motion to
sequester the minor witnesses, which was granted, and the state's
motion to consolidate the charges involving Wendy with those
21
involving Toni and Vicki, which was denied. The state also moved to
close the courtroom during the testimony of each girl, but at least as
to Wendy. Bell objected, on Sixth Amendment public trial grounds,
but offered no alternative to the temporary closure request proposed
by the state. The trial judge, noting that the testimony would be "of
an apparent delicate nature," J.A. 281, agreed that a temporary closure
would be appropriate, but ruled that it would be carried out as dis-
creetly as possible so as not to call it to the jury's attention.
The next day, the courtroom was closed to the public during
Wendy's testimony.2 At a minimum, however, the court reporter,
court personnel, the jury, the prosecutor, Bell's attorney, and the fam-
ily members and friends of the minor witnesses were allowed to remain.3
Also, a transcript of the testimony was taken and available to the pub-
lic. Of the 700-plus page trial transcript, approximately 44 pages com-
prise the testimony of Wendy.
At the conclusion of Wendy's testimony, the courtroom was imme-
diately reopened.4 At that time, the trial court specifically inquired as
_________________________________________________________________
2 Before the jury entered the courtroom, the state informed the judge
that Wendy would be the first witness. This resulted in the closure being
implemented for a short time before Wendy actually testified -- specifi-
cally, during the swearing of the jury and the very brief openings, all of
which comprised five pages of transcript. By doing so, the trial judge
eliminated the need to return the jury to the jury room after openings and
served the goal of carrying out the closure as discreetly as possible.
Although technically beyond the scope of the original closure order,
Bell's trial counsel lodged no objection to the closure being handled in
this manner.
3 The state contends that the press was permitted to stay, but Bell con-
tends that this is unclear. It is indeed unclear. The transcript does not
indicate whether the press was present in the courtroom or whether any
member of the press wanted to be present. Although there was pre-trial
publicity associated with the trial, there is no indication that the press
objected to the closure.
4 Although the state originally asked for closure of the courtroom dur-
ing the testimony of Toni and Vicki, it is also unclear as to whether the
courtroom was ever closed again -- a fact which the majority and Bell
do not dispute. Bell's petition for habeas relief complains that "the trial
22
to whether Bell wanted his wife to return to the courtroom. Bell's
counsel refused, indicating that they did not want her to return, after
which the trial judge stressed that Bell was entitled to have anyone
he wanted in the courtroom with him.5
Bell was ultimately convicted by the jury and sentenced to two life
terms plus seventy years. On direct appeal, counsel selected six
assignments of error to pursue. The convictions and sentence were
affirmed on direct appeal and Bell's state application for post-
conviction relief was subsequently dismissed.
II.
In his federal habeas petition, Bell raises the sole claim that he
received ineffective assistance of counsel on direct appeal, in viola-
_________________________________________________________________
judge closed the courtroom during the complainant's testimony," J.A. 92,
and, in any event, if Bell cannot show that the courtroom was closed dur-
ing the testimony of Toni and Vicki, he obviously cannot show a viola-
tion of his right to a public trial on that basis. Accordingly, my
discussion is limited to the closure of the courtroom during Wendy's tes-
timony. However, even if Bell had shown that the courtroom was closed
during the testimony of the other two girls, my opinion would be the
same. When the trial judge granted the motion to close the courtroom,
he also possessed substantial information about Bell's alleged assaults
upon them.
5 With the exception of his wife, Bell points to no one who was actually
excluded by the trial court's order. The specific colloquy regarding her
return was as follows:
THE COURT: All right.
Do you want Mrs. Bell to come in here?
MR. O'KELLEY: Your Honor, I don't actually. We'll just
leave her out of the courtroom, that will be
fine.
THE COURT:Well, you are welcome to have anybody in
here you want now.
MR. O'KELLEY: Yes, sir, I understand.
J.A. 339.
23
tion of his Sixth Amendment right to counsel, because his appellate
counsel did not pursue a claim that his Sixth Amendment right to a
public trial was violated by the trial court's temporary closure of the
courtroom during Wendy's testimony. The state court reasonably
rejected this claim, and we should as well.
In order to establish a claim that appellate counsel was ineffective
for failing to pursue a claim on direct appeal, Bell must show that (1)
his "counsel's representation fell below an objective standard of rea-
sonableness" in light of the prevailing professional norms, Strickland
v. Washington, 466 U.S. 668, 688 (1984), and (2) "there is a reason-
able probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different," id. at 694. In
applying this test, we accord appellate counsel the "presumption that
[they] decided which issues were most likely to afford relief on
appeal." Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993).
We do not obligate counsel to assert all non-frivolous issues on
appeal. Rather, "`[w]innowing out weaker arguments on appeal and
focusing on those more likely to prevail, far from evidence of incom-
petence, is the hallmark of effective appellate advocacy.'" Smith v.
South Carolina, 882 F.2d 895, 899 (4th Cir. 1989) (quoting Smith v.
Murray, 477 U.S. 527, 536 (1986)).
Also, we do not review Bell's claim de novo. Because Bell's claim
was adjudicated on the merits by the North Carolina state court, our
review is limited by section 2254(d), under which we may not grant
federal habeas relief unless, after conducting an independent review
of the law and facts, see Wright, 151 F.3d at 157, we conclude that
North Carolina's adjudication of the claim "resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States," 28 U.S.C.A. § 2254(d)(1). Under section 2254(d)(1),
federal habeas relief is authorized only when the "state court decision
is in square conflict with a precedent (supreme court) which is con-
trolling as to law and fact." Green v. French, 143 F.3d 865, 870 (4th
Cir. 1998), cert. denied, 119 S. Ct. 844 (1999). In the absence of such
a controlling precedent, the applicant must demonstrate that "the state
court's resolution of a question of pure law rests upon an objectively
unreasonable derivation of legal principles from the relevant supreme
court precedents, or . . . upon an objectively unreasonable application
24
of established principles to new facts." Id. In essence, "habeas relief
is authorized only when the state courts have decided the question by
interpreting or applying the relevant precedent in a manner that rea-
sonable jurists would all agree is unreasonable." Id.Accordingly, Bell must clear a high hurdle to obtain federal habeas
relief. He must establish that North Carolina's rejection of his ineffec-
tive assistance of counsel claim in state post-conviction proceedings
was directly contrary to controlling Supreme Court precedent or
involved an unreasonable application of such precedent. In my opin-
ion, Bell has not met this burden.
Bell's sole contention is that counsel on direct appeal was ineffec-
tive for failing to argue that Bell's Sixth Amendment right to a public
trial was violated by the trial court's temporary closure of the court-
room during Wendy's testimony. Having made an independent
review of the law and facts, I agree with the district court's conclu-
sion that Bell's appellate counsel was not ineffective. At a minimum,
the relevant public trial precedents reveal that reasonable jurists can
disagree, and indeed have disagreed, on whether existing Supreme
Court precedent dictates the conclusion that the public trial right has
been violated under similar circumstances. Accordingly, I believe that
North Carolina could have reasonably concluded that Bell's appellate
counsel's representation did not fall below an objective standard of
reasonableness simply because counsel did not pursue, on direct
appeal, a claim that Bell's right to a public trial was violated by the
temporary closure. And, of course, a determination that Bell's right
to a public trial was not violated would compel the conclusion that
there was no reasonable probability that the outcome of Bell's appeal
would have been different even if counsel had raised the claim. For
these reasons, I believe that section 2254(d) commands that we deny
Bell federal habeas relief.
III.
The Sixth Amendment provides that an individual accused of a
criminal offense has "the right to a speedy and public trial." U.S.
Const. amend. VI; see Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 574 (1980). Finding its roots in English common law, "the
guarantee has always been recognized as a safeguard against any
25
attempt to employ our courts as instruments of persecution." In re
Oliver, 333 U.S. 257, 270 (1948).6 Today, the right remains grounded
in the belief that "`judges, lawyers, witnesses, and jurors will perform
their respective functions more responsibly in an open court than in
secret proceedings,'" Waller v. Georgia, 467 U.S. 39, 46 n.4 (1984)
(quoting Estes v. Texas, 381 U.S. 532, 588 (1965) (Harlan, J., concur-
ring)), and that "`the forum of public opinion is an effective restraint
on possible abuse of judicial power,'" id. (quoting In re Oliver, 333
U.S. at 270). "The central aim of a criminal proceeding [is] to try the
accused fairly" and the public trial guarantee serves the purpose of
"ensuring that judge and prosecutor carry out their duties responsibly
. . ., encourag[ing] witnesses to come forward[,] and discourag[ing]
perjury." Id. at 46.
In light of these general principles, the Supreme Court has held that
there is a presumption in favor of open trials. Yet the right is not
absolute, and trial judges have discretion to impose reasonable limita-
tions on access to a trial where overriding interests are likely to go
unprotected if closure is not employed. See Waller, 467 U.S. at 45.
Specifically, in the context of a Sixth Amendment challenge to the
complete closure of a courtroom, the defendant's right to a public trial
may give way if:
(1) the party seeking to close the hearing advances an
overriding interest that is likely to be prejudiced,
(2) the closure is no broader than necessary to protect that
interest,
(3) reasonable alternatives to closing the proceeding are
considered by the trial court, and
(4) findings adequate to support the closure are made by
the trial court.
_________________________________________________________________
6 The origin of the "traditional Anglo-American distrust for secret trials
has been variously ascribed to the notorious use of this practice by the
Spanish Inquisition, to the excesses of the English Court of Star Cham-
ber, and to the French monarchy's abuse of the lettre de cachet." In re
Oliver, 333 U.S. 257, 268-69 (1948) (internal footnotes omitted).
26
See Waller, 467 U.S. at 48.
The magistrate judge and district judge agreed that the temporary
closure in this case complied with Waller's first three requirements,
but disagreed as to whether the trial court's findings were adequate,
i.e., whether there were "`findings specific enough that a reviewing
court can determine whether the closure order was properly entered.'"
Id. at 45 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S.
501, 510 (1984)). The majority, on the other hand, has concluded that
the temporary closure satisfied no requirement of the Waller test.
Accordingly, I address each factor in turn, keeping in mind, of course,
that I do so only to determine whether the state court's determination
was an unreasonable one.
A.
The initial inquiry is whether the state advanced an overriding
interest justifying a temporary closure of the courtroom. I have no
hesitancy in concluding that this requirement was met.
1.
Initially, I note that the majority appears to unnecessarily place our
circuit at odds with others that have relaxed the Waller requirements
where a temporary or partial closure of a proceeding is at issue. Spe-
cifically, these circuits have required only that the state advance a
"substantial reason" for closing the proceeding because, unlike those
situations involving a complete closure, a partial closure does not
threaten as acutely the historical concerns sought to be addressed by
the Sixth Amendment. See United States v. Osborne, 68 F.3d 94, 98-
99 (5th Cir. 1995); United States v. Farmer, 32 F.3d 369, 371 (8th
Cir. 1994); United States v. Sherlock, 962 F.2d 1349, 1356-57 (9th
Cir. 1992); Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir. 1989);
Douglas v. Wainwright, 739 F.2d 531, 532-33 (11th Cir. 1984) (per
curiam). Similarly, where a partial closure is involved, courts have
"`look[ed] to the particular circumstances to see if the defendant still
received the safeguards of the public trial guarantee.'" Sherlock, 962
F.2d at 1357 (quoting Douglas, 739 F.2d at 532).
27
The majority has rejected the reasoning of these circuits, opining
that because the Supreme Court has never set forth a less rigorous
standard for partial closures, we should also decline to do so. How-
ever, neither the Supreme Court nor this court has been required to
consider whether Waller's stringent test for complete closures applies
equally in the context of a temporary or partial closure such as that
before us today. Therefore, I would not so readily dismiss the opin-
ions of our sister circuits, particularly when it is unnecessary to either
embrace or reject them. Whether treated as a complete or partial clo-
sure, I believe the trial judge's temporary closure of the courtroom
during Wendy's testimony advanced a compelling interest.
2.
The state obviously had a compelling interest in protecting Wendy
from further emotional trauma, including minimizing the humiliation
associated with relating the details of Bell's vile behavior in open
court. In Globe, the Supreme Court rejected, on First Amendment
grounds, a Massachusetts statute which required trial judges to close
the courtroom during the testimony of minor victims of specified sex-
ual offenses, but made clear that "safeguarding the physical and psy-
chological well-being of a minor" victim of sex crimes, including
protecting them from further trauma and embarrassment, is precisely
the type of compelling interest which can overcome the presumption
in favor of an open trial. 457 U.S. at 607. Thus, closing the courtroom
is appropriate, provided the trial court "determine[s] on a case-by-
case basis [that] the State's legitimate concern for the well-being of
the minor victim necessitates closure," id. at 609, taking into account
such factors as "the minor victim's age, psychological maturity and
understanding, the nature of the crime, the desires of the victim, and
the interests of parents and relatives," id. at 608.7 See also Press-
_________________________________________________________________
7 The Court took care to explicitly point out the limited nature of its
holding:
We emphasize that our holding is a narrow one: that a rule of
mandatory closure respecting the testimony of minor sex victims
is constitutionally infirm. In individual cases, and under appro-
priate circumstances, the First Amendment does not necessarily
stand as a bar to the exclusion from the courtroom of the press
and general public during the testimony of minor sex-offense
victims. But a mandatory rule, requiring no particularized deter-
minations in individual cases, is unconstitutional.
Globe, 457 U.S. at 611, n. 27.
28
Enterprise Co. v. Superior Court, 478 U.S. 1, 9 n.2 (1986) ("The pro-
tection of victims of sex crimes from the trauma and embarrassment
of public scrutiny may justify closing certain aspects of a criminal
proceeding.").
The majority concludes that the first requirement of Waller was
unsatisfied because the trial court did not make a case-by-case deter-
mination and, instead, applied a per se rule of closure of the type con-
demned in Globe. In particular, the majority faults the trial court for
not directly inquiring about the maturity, understanding, and willing-
ness of the victim to testify.8
While Globe does set forth factors which a trial court should con-
sider when determining the propriety of closing a courtroom during
the testimony of a minor, sex crime victim, the Court did not pre-
scribe any that were determinative and, in fact, recognized that trial
courts would necessarily need to exercise discretion in weighing these
factors, as well as others not yet defined. I have no basis upon which
to conclude that the state trial judge failed to carefully consider the
individual facts of this case before making his decision, or that he oth-
erwise shirked his duty in this regard. On the contrary, when the trial
judge granted the state's motion for a temporary closure, North Caro-
lina state law provided that "[i]n the trial of cases for rape or sex
offense . . ., the trial judge may, during the taking of the testimony
of the prosecutrix, exclude from the courtroom all persons except the
officers of the court, the defendant and those engaged in the trial of
the case." N.C. Gen. Stat. § 15-166 (1983) (emphasis added). Hence,
unlike the statute in Globe, North Carolina imposed no per se rule of
closure. Rather, the trial judge was vested with the discretion to eval-
uate the propriety of a temporary closure. And he clearly possessed
_________________________________________________________________
8 Actually, the majority's conclusion appears to rest upon the absence
of explicit factual findings in this regard, rather than upon a determina-
tion that no compelling interest was at stake or that temporary closure of
the courtroom was not the least restrictive means of serving a compelling
interest. Indeed, the majority expressly concludes that, due to insufficient
findings, the second requirement of Waller was also not met. Thus, at the
outset, I disagree with the majority's implicit engrafting of the fourth
Waller requirement upon the other three, thereby rendering the lack of
detailed factual findings outcome-determinative.
29
knowledge sufficient to exercise this discretion. Prior to ruling on the
state's motion to close the courtroom, the trial judge had substantial
information before him disclosing the number of the charged crimes,
the heinous nature of the crimes, the age of the victim, the long dura-
tion of her silence, and her expected testimony. With this knowledge,
the trial court made the quite reasonable determination that a tempo-
rary and discrete closure was appropriate. The graphic nature of
Wendy's ultimate testimony only serves to bolster my conclusion that
the trial judge followed an acceptable, indeed proper, course in tem-
porarily closing the courtroom.9
Thus, I agree with the district court's determination that the state
demonstrated an overriding interest in protecting a child victim of
multiple rapes and sexual molestation by a family member and that
the first Waller requirement was met. Indeed, if the facts underlying
this case are insufficient to establish an "overriding interest," I can
think of none.
B.
For similar reasons, I cannot agree that the temporary closure failed
to meet Waller's requirement that a closure be no broader than neces-
sary to protect the interest at stake. Because the compelling interest
for closing the courtroom was the protection of Wendy during her tes-
timony, limiting the closure to her testimony was imminently tailored
to serve that interest. Additionally, the courtroom was not unnecessar-
ily restricted. Court personnel, the attorneys, and the court reporter
remained and, of course, the jury, comprised of the public, was pres-
ent. The entire proceedings were recorded, the recorded transcript was
made available to the public, and there is no claim that anything
occurred which is not reflected in the transcript. See Ayala v.
Speckard, 131 F.3d 62, 72 (2d Cir. 1997) (en banc), cert. den., 118
S.Ct. 2380 (1998) (noting availability of transcript as a consideration
_________________________________________________________________
9 The majority appears to place some reliance upon the fact that
Wendy, "who was then 16 years old, directly answered the questions put
before her, including those of a distressing nature." Majority Op. at 10.
Of course, it was necessary for Wendy to do so in order for the state to
convict Bell. But the transcript certainly does not indicate that Wendy
did so stress-free.
30
in deciding whether a limited closure designed to protect a single wit-
ness during his testimony was violative of the Sixth Amendment right
to a public trial); cf. Press-Enterprise, 464 U.S. at 512 (noting, as a
consideration in a First Amendment challenge to the limited closure
of jury voir dire, that "the constitutional values sought to be protected
by holding open proceedings may be satisfied later by making a tran-
script of the closed proceedings available within a reasonable time, if
the judge determines that disclosure can be accomplished while safe-
guarding the juror's valid privacy interests").
Obviously, this was not a situation where the purposes behind the
public trial guarantee were in jeopardy. Bell was not subjected to a
"secret trial" or to the "persecution" sought to be prevented by the
public trial guarantee, nor does he contend that he has been. Rather,
the limited and temporary nature of the closure was fully consistent
with protecting Wendy during her testimony. Accordingly, I am satis-
fied that the closure was properly limited and narrowly tailored to
achieve the intended purpose of protecting this young girl while she
was being asked to discuss the details of Bell's repeated sexual
assaults upon her.
C.
Next, Waller provides that trial courts are to consider reasonable
alternatives to closing the courtroom. I likewise find no deficiency in
this regard.
First, I cannot conclude that the trial judge failed to consider any
alternatives to the one proposed by the state simply because he did not
discuss them in open court. Rather, the limited nature of the closure
directed by the trial judge, and his concern that it be carried out in the
most discreet way possible, suggests that he did consider the situation
and determine the most appropriate means to balance the goal of pro-
tecting Wendy with Bell's constitutional right to a public trial.
Second, even had the trial judge not considered alternatives, I can-
not conclude that this rendered his decision violative of Bell's right
to a public trial. In response to the state's motion for a temporary clo-
sure, Bell's counsel objected on the basis of the Sixth Amendment
public trial provision but provided nothing in the way of argument.
31
Once the trial judge determined that the interest in protecting Wendy
outweighed Bell's interest in an open courtroom, Bell again proposed
no alternative to the limited closure.10 Waller does not, in my opinion,
require trial courts to invent and reject alternatives to a temporary or
partial courtroom closure where none are requested. The closure
extended only to the testimony of a single witness for her protection,
and it would seem utterly pointless to require the trial judge to conjure
up alternative methods of protecting the witness only to reject his own
proposals. Obviously, the trial judge is not in a superior position to
suggest alternatives which may be more acceptable to the defendant
and his counsel.
Finally, I am not alone in my belief that the trial judge's failure to
articulate alternatives is not fatal to the propriety of the closure. In
Ayala, the Second Circuit, sitting en banc, held "that once a trial
judge has determined that limited closure [to protect a single witness
during his testimony] is warranted as an alternative to complete clo-
sure, the judge [need not] sua sponte consider further alternatives to
the alternative deemed appropriate." 131 F.3d at 71. At a minimum,
reasonable jurists could conclude that the failure to articulate alterna-
tives to the limited closure did not transform the closure into a viola-
tion of Bell's constitutional right to a public trial, and I cannot
conclude that North Carolina was unreasonable in its adjudication of
Bell's claim on this basis.
D.
Finally, Waller requires trial courts to make factual "findings ade-
quate to support the closure." Waller, 467 U.S. at 48. Like the district
court, I believe it reasonable to conclude that the temporary closure
of Bell's trial did not fall short of this requirement.
_________________________________________________________________
10 Bell now asserts that possible alternatives included allowing the
press to remain, using a screen or privacy device to block Wendy's view
of the audience, or using a closed-circuit television. Of course, Bell did
not propose these alternatives at trial. Also, the latter two alternatives
would not serve the purpose of carrying out the closure in a discreet
manner and, again, it is far from clear that the press was excluded.
32
In Waller, the Court addressed the propriety of the complete clo-
sure of a 7-day hearing, held to address the admissibility of wiretap
and other evidence in a proceeding brought under the Georgia Racke-
teer Influenced and Corrupt Organizations Act and other commercial
gambling statutes. Although the stated basis for the closure was to
protect the privacy of non-parties and the admissibility of the evi-
dence under state law, the evidence sought to be protected comprised
less than 2 hours of tape and the state was not specific as to whose
privacy interests might be infringed. Thus, the trial court's findings
were deemed too broad and general to justify a complete closure of
the hearing. See id. at 48-49.
In determining whether the defendants' Sixth Amendment right to
a public trial had been violated, the Waller Court applied the tests pre-
viously developed for First Amendment challenges to courtroom clo-
sures and, in doing so, set forth a requirement that the trial court
"make findings adequate to support the closure." Id. at 48. Our circuit,
also in the context of First Amendment challenges to complete court-
room closures, has reiterated this requirement. See In re South Caro-
lina Press Ass'n, 946 F.2d 1037, 1041 (4th Cir. 1991) (instructing that
we apply a three-prong test for determining the propriety of closing
a courtroom, provided the district court has made specific judicial
findings on each of the three prongs); In re Charlotte Observer, 882
F.2d 850, 853 (4th Cir. 1989) (noting that "[w]e have required such
specific reasons and findings on the record to facilitate the de novo
review of such closure orders"); In re Knight Publ'g Co., 743 F.2d
231, 235 (4th Cir. 1984) (explaining that "[t]he court's findings must
be specific enough to enable a reviewing court to determine whether
the closure order was proper").
By holding, in effect, that the Sixth Amendment right to a public
trial hinges upon the sufficiency of the trial court's findings, even
where a partial or temporary closure has been ordered for quite obvi-
ous reasons, I believe the majority has placed undue emphasis upon
Waller's requirement that the trial judge "make findings adequate to
support the closure." Waller, 467 U.S. at 48. Waller prescribed no
particular format to which a trial judge must adhere to satisfy its ade-
quate findings requirement. Rather, the Court's reference to the need
for adequate findings stems directly from its previous recognition that
trial courts need to make "findings specific enough that a reviewing
33
court can determine whether the closure order was properly entered."
Id. at 45 (internal quotation marks omitted). In this case, I am able to
do so, and I read nothing in Waller which would require me to review
the state trial court's closure order solely on the basis of its explicit
factual findings and, thereby, ignore facts of record which fully sup-
port the decision. Furthermore, neither Waller nor our cases addressed
a temporary closure of courtroom proceedings during the testimony
of a minor victim of sexual molestation, which would surely require
findings different from those necessary to review a complete closure.
Two other Circuit Courts of Appeal would appear to agree that a
Sixth Amendment violation does not occur, when a partial or tempo-
rary closure is involved, merely because the trial court fails to make
detailed and explicit findings to support the exercise of his discretion.
In United States v. Farmer, 32 F.3d 369 (8th Cir. 1994), which
involved the aggravated sexual abuse and kidnapping of a 17-year-old
girl, the trial court excluded all spectators other than the members of
the victim's family during a portion of the victim's testimony.
Although recognizing the lack of "explicit findings" by the trial court,
the Eighth Circuit noted that, unlike the complete closure at issue in
Waller, it was faced with a partial closure which did not "`implicate
the same secrecy and fairness concerns that a total closure does,'" id.
at 371 (quoting Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992),
and rejected defendant's Sixth Amendment public trial challenge on
direct appeal because "specific findings by the district court are not
necessary if we can glean sufficient support for a partial temporary
closure from the record," id. at 371.
The Fifth Circuit endorsed a similar approach in United States v.
Osborne, 68 F.3d 94 (5th Cir. 1995), in which the trial court partially
closed the courtroom while a 12-year-old victim of sexual assault tes-
tified. Despite the paucity of the trial court's explicit findings, the
court rejected the defendant's Sixth Amendment public trial challenge
because it was able to "infer that [the trial court] eventually ordered
the partial closure" to protect the young victim from the trauma and
intimidation that her public testimony would produce. Id. at 99.
Hence, the Fifth Circuit, while admonishing trial courts to "take care
to develop a record of the issues, and make detailed factual findings,"
was also unwilling to place form over substance when there was in
fact no violation of the defendant's right to a public trial. Id.; see also
34
Brown v. Kuhlmann, 142 F.3d 529, 538 (2d Cir. 1998) (refusing to
grant habeas relief for an alleged Sixth Amendment public trial viola-
tion, holding that even where the reasons given are "neither entirely
accurate nor particularly compelling, the strength of the judge's find-
ings must be evaluated by reference to the very limited scope of the
closure that they support [and that] by that standard, the trial court's
findings were adequate"); Woods v. Kuhlmann , 977 F.2d 74, 77-78
(2d Cir. 1992) (holding that, despite the lack of specific findings of
fact, where the "information gleaned [from the record] . . . [was] suf-
ficient to support the partial, temporary closure of petitioner's trial,"
the fourth Waller factor was satisfied).
Before ruling on the motion to close the courtroom, the trial judge
in this case was aware of the nature of the charges before him, includ-
ing the extraordinary number of counts and the span of time over
which they were committed, the age of the victim, and the defen-
dant's familial relationship to the victim. Specifically, he was aware
that Bell had been indicted for over 80 counts of sexual misconduct,
including multiple counts for first degree statutory rape of a minor
under the age of 13, second degree rape, and taking indecent liberties
with a minor. During the pre-trial hearing, he had the opportunity to
become familiar with the graphic nature of the allegations and to
observe the minor witnesses, as well as Bell, in the courtroom. He
was made aware that the case involved the alleged sexual molestation
of three minor children, and that the principal victim was the minor
step-granddaughter of the 58-year-old defendant, who starting at age
12 suffered multiple instances of sexual abuse over a two-year period.
He was aware that Bell's victims were friends with one another,
neighbors of Bell and his wife, and that on at least one occasion, one
of the girls was present at Bell's home while Wendy was being
molested. He had also been provided, in the context of the state's
motion to consolidate the offenses, with a summary of when and how
the abuse occurred, including the repeated sexual abuse of both
Wendy and Toni. Additionally, the trial judge was aware that Wendy
had kept quiet about the abuse from the time that she was 12 years
old until, two years later, she and Vicki were prompted to come for-
ward by the television show on child molestation and rape. Also,
when the courtroom was closed, the trial judge was aware that
Wendy's performance at school was lagging significantly.
35
Accordingly, the trial judge's order that the courtroom be tempo-
rarily closed during Wendy's testimony was obviously not a per se
closure made in isolation of the particular facts before him. The trial
judge possessed substantial information which enabled him to evalu-
ate and determine, on a case-specific basis, that temporary closure
was appropriate. And he was certainly correct when he concluded that
the delicate nature of the testimony was "apparent."
Furthermore, written, detailed findings that Wendy's testimony
would be embarrassing or humiliating are unnecessary for us to deter-
mine that closure of the courtroom was an appropriate exercise of the
trial judge's discretion. Supreme Court precedents do not require trial
courts to recite exhaustively every fact and inference which justifies
the obvious, nor do they command that we review closure orders in
isolation of the record. Indeed, this court has previously declined, in
the context of a section 2254 petition, to place such undue emphasis
on the explicit findings made by a state trial court where the facts of
record supported the trial court's challenged ruling. See Fields v.
Murray, 49 F.3d 1024, 1036-37 (4th Cir. 1995) (en banc).
In Fields, the state court defendant alleged that his Sixth Amend-
ment right to self-representation had been violated by the state trial
judge's refusal to allow him to personally cross-examine minor vic-
tims of his alleged sexual abuse. Noting that the state's interest in pro-
tecting child abuse victims from emotional trauma was sufficiently
important to outweigh the defendant's right to cross-examine them
personally, we declined to find a Sixth Amendment violation simply
because the trial court failed to make "a more elaborate finding," id.
at 1036, to support his decision where sufficient support was present
in the record:
We think it reasonable for the trial court to have concluded
on the basis of the facts before it that the[ ] eleven through
thirteen-year-old girls who had experienced repeated sexual
abuse would be emotionally harmed if they were personally
cross-examined in open court by [defendant], their alleged
abuser. We therefore find adequate the trial court's determi-
nation that denial of this personal cross-examination was
necessary to prevent emotional trauma to the girls.
36
Id. at 1036; cf. Arizona v. Washington, 434 U.S. 497, 517 (1978)
(when "[t]he basis for the [state] trial judge's mistrial order [was] ade-
quately disclosed by the record," habeas relief was not warranted by
the court's failure "to articulate on the record all the factors which
informed the deliberate exercise of his discretion"). The record and
factual findings underlying the state trial judge's decision to close the
courtroom during Wendy's testimony are sufficient for me to deter-
mine that the closure order was properly entered, and therefore, I can-
not conclude that the state court unreasonably rejected Bell's claim
that the temporary closure, or the limited nature of the trial court's
findings, violated his Sixth Amendment right to a public trial.11
IV.
Having independently reviewed the applicable precedents, I turn
now to the ultimate issue before us: whether North Carolina's rejec-
tion of Bell's claim was the result of an unreasonable application of
those precedents. The majority, while initially acknowledging this
limited standard of review, makes little reference to it in rendering its
ultimate determination that habeas relief is appropriate, concluding
instead "that there is a reasonable probability that the trial judge's
statement was insufficient to satisfy the requirements of the Sixth
Amendment," Majority Op. at 11, and that we should decline to fol-
low the holdings of those circuits which have applied Waller in a
manner consistent with my views and with North Carolina's rejection
of Bell's post-conviction claim. Yet this is not our ultimate task.
_________________________________________________________________
11 I recognize, of course, that the Tenth Circuit found a public trial vio-
lation in a case involving a minor sex crime victim, in large part because
the trial judge made no "specific, reviewable findings adequate to sup-
port the general closure." Davis v. Reynolds, 890 F.2d 1105, 1112 (10th
Cir. 1989). In so ruling, the court appears to have drawn no distinction
between the findings necessary to justify the complete closure of the 7-
day suppression hearing in Waller and those necessary to justify tempo-
rary closure of a courtroom while the minor victim of a sex crime testi-
fies. But, in any event, any difference of opinion on this point merely
highlights the fact that reasonable jurists can disagree on the proper
application of Supreme Court precedent in this type of case and, there-
fore, that the AEDPA amendments to section 2254(d) would now pre-
clude federal habeas relief.
37
North Carolina rejected Bell's claim that his appellate counsel was
ineffective for failing to argue, on direct appeal, that his right to a
public trial was violated by the temporary closure of the courtroom
during Wendy's testimony.12 At a minimum, reasonable jurists can
and have disagreed as to how Waller should be applied to a temporary
courtroom closure such as this. Because North Carolina's determina-
tion is neither contrary to nor an unreasonable application of clearly
established federal law, see 28 U.S.C.A. § 2254(d), I would affirm the
district court's denial of Bell's habeas petition.
_________________________________________________________________
12 In concluding otherwise, the majority has in part relied upon State v.
Jenkins, 445 S.E.2d 622, 625 (N.C. App. 1994), decided after Bell's con-
viction but before his appeal, which held that the trial court erred in clos-
ing the courtroom during the testimony of an adult victim of a sexual
offense without making sufficient findings in support. The facts, which
involved an adult woman alleged to have been raped by her former live-
in boyfriend, are distinguishable from the ones we consider today, and
Jenkins obviously had no effect upon the state appellate court's subse-
quent disposition of Bell's application for post-conviction relief. Further-
more, the question before us is whether North Carolina's rejection of
Bell's claim is unreasonable in light of Supreme Court precedent, not
whether the state court properly applied its own precedent.
38