By Nate Raymond
NEW YORK, Nov 13 (Reuters) - A U.S. appeals court has
reversed the conviction of a disbarred lawyer after finding his
rights to a public trial were violated when the public was
prevented from attending jury selection in his case.
The 2nd U.S. Circuit Court of Appeals said Friday the trial
court violated Raghubir Gupta's Sixth Amendment rights by
intentionally excluding the public from voir dire. The
three-judge panel called the closure "unjustified" and "not
trivial."
"Most voir dire proceedings are uncontroversial," Circuit
Judge Peter Hall wrote. "But the public trial right is not
implicated solely in discordant situations."
A spokeswoman for the Manhattan U.S. Attorney's office,
which prosecuted the case, declined to comment.
Gupta, a Brooklyn resident, was arrested in 2006 on charges
relating to his alleged preparation of fraudulent immigration
applications for clients applying for amnesty.
Following a seven-day trial before U.S. District Judge
Deborah Batts in Manhattan, a jury found him guilty in April
2008. He was sentenced to 51 months in prison in October 2009.
Gupta appealed. In a January 2010 letter to the 2nd Circuit,
he complained that his Sixth Amendment rights had been violated
due to a decision by Batts to close voir dire to the public.
Gupta again complained about the closed-door jury selection
process after the 2nd Circuit sent the case back to Batts for
further fact-finding in April 2010.
Gupta's arguments were based on a January 2010 U.S. Supreme
Court case, Presley v. Georgia, where it was decided that jury
selection must be open to the public.
A lawyer for Gupta attested that he learned for the first
time that month that a courtroom deputy had asked Gupta's
brother and girlfriend to leave the court during voir dire.
The deputy backed up this account, stating that at Batts's
direction he asked non-jurors to leave the courtroom to make
space for the 70 prospective jurors.
In 2011, the 2nd Circuit initially held that the public
should not have been excluded but that Gupta's rights had not
been violated.
On petition from Gupta, the full 2nd Circuit then took the
case up.
"TREMENDOUS SIGNIFICANCE"
In Friday's opinion, the court said it had voted to dissolve
the en banc panel. The original three-judge panel then withdrew
its 2011 decision and replaced it with a new one, the court
said.
In the past, according to the opinion, the 2nd Circuit had
said that unjustified court closures, in "certain and limited
circumstances," don't in themselves justify a conviction's
reversal.
But Hall said Batts's reasons to close the court to the
public were unjustified.
Hall also rejected the government's argument that the
public's exclusion was trivial. The openness of the proceedings,
rather than what happens in them, is what provides an appearance
of fairness, he wrote.
Joining Hall in the decision were Circuit Judges John Walker
and Barrington Daniels Parker.
Susan Wolfe, a lawyer for Gupta at Hoffman & Pollok, said
she has received calls from attorneys across the country who
were facing similar issues in their cases and waiting for the
2nd Circuit's decision.
She said the 2nd Circuit had originally carved out the
triviality exception for court closure cases and that the latest
decision would influence how other courts apply the exception.
"It's going to have tremendous significance," she said.
The case is U.S. v. Gupta, 2nd U.S. Circuit Court of
Appeals, No. 09-4738-cr.
For Gupta: Susan Wolfe, Hoffman & Pollok.
For the U.S.: Lee Renzin, U.S. Attorney's Office in
Manhattan.
(Additional reporting by Terry Baynes)
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