Court denies appeal of man who wanted brother at robbery trial

Reuters News
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Posted: Sep 14, 2011 6:23 PM
Court denies appeal of man who wanted brother at robbery trial

By Basil Katz

NEW YORK (Reuters) - A New York man cannot claim his right to a public trial was violated when a state judge prevented the man's 12-year-old brother from attending his robbery trial, a U.S. appeals court ruled on Wednesday.

In a 2-1 split opinion, the 2nd U.S. Circuit Court of Appeals in New York agreed with a district court judge that the man, Everett Downs, lost his right to complain because he did not formally object to his brother's exclusion at the start of the trial.

Downs was sentenced in 2005 to eight years in prison after a New York State Supreme court jury convicted him of robbing an auto body store, court documents said.

At the start of the trial, Downs' attorney noted in open court that the judge had refused to allow Downs' younger brother, Nathaniel Clarke, to attend the trial. The brother was 12 at the time, and the issue was never again brought up in the record of trial proceedings.

Downs later appealed his conviction, arguing that because his brother was not allowed to attend, he had been denied a public trial in violation of his sixth amendment rights.

Wednesday's majority opinion, written by circuit judge Raymond Lohier, did not address the merits of Downs' claim and declined to take up his petition. Instead, it took its cue from the state appeals court, which concluded that Downs did not properly object to his brother being barred.

"The sparse record in this case prevents us from saying definitively that defense counsel properly objected or requested that Clarke remain in court," Lohier, joined by judge Richard Wesley, wrote.

Judge Denny Chin, writing in dissent, found that Downs had in fact marked his objection and preserved his claim for appeal and that the district court should hear his habeas petition.

"Downs has suffered the loss of an important constitutional right solely on the grounds the claim was 'unpreserved'," Chin said.

"Such an important right should not be deemed forfeited, however, merely because the magic words 'I object' were not woven into what was already clearly an objection."

(Reporting by Basil Katz; Editing by Cynthia Johnston)