Kalodner, Freedman and Seitz, Circuit Judges. Hastie, Chief Judge, and Kalodner, Freedman, Seitz, Aldisert, Stahl and Adams, Circuit Judges. Stahl, Circuit Judge (concurring). Kalodner, Circuit Judge (dissenting). Aldisert, Circuit Judge (dissenting).
Relator was found guilty in a Pennsylvania court of second degree murder, aggravated robbery and conspiracy and was sentenced to imprisonment for consecutive terms aggregating not less than 21 nor more than 42 years. The District Court denied his petition for habeas corpus, and his appeal, on which we granted a certificate of probable cause, is now before us.
It is clear that relator has exhausted his state remedies. He appealed from his conviction to the Supreme Court of Pennsylvania and there made the contentions which he has presented to the District Court. The Supreme Court of Pennsylvania affirmed his conviction in a per curiam opinion, Eagen and Roberts, JJ., dissenting. Commonwealth v. Bennett, 424 Pa. 650, 227 A.2d 823, cert. denied 389 U.S. 863, 88 S. Ct. 122, 19 L. Ed. 2d 132 (1967). Since the claims now presented to us were made on direct appeal there has been an exhaustion of state remedies under 28 U.S.C. § 2254, even if relator theoretically has the right to seek collateral relief in the state courts on the same contentions. See Brown v. Allen, 344 U.S. 443, 447, 73 S. Ct. 397, 97 L. Ed. 469 (1953); United States ex rel. Fletcher v. Maroney, 413 F.2d 16 (3 Cir. 1969); United States ex rel. Howard v. Russell, 405 F.2d 169, 171 (3 Cir. 1969). In fact, however, under Pennsylvania's Post-Conviction Hearing Act relator is not eligible for collateral relief because the State Supreme Court already has ruled on the issues presented.*fn1 The District Court therefore was correct in reaching the merits of the petition.
Relator makes three claims:
(1) His trial was barred by a Pennsylvania statute which requires that an imprisoned defendant who requests the final disposition of an outstanding indictment must be tried within 180 days;
(2) His confession should not have been introduced into evidence because it was involuntary and was obtained in violation of his right to counsel; and
(3) His right to a public trial was violated by the trial judge's exclusion of all persons other than relator, the lawyers, the witnesses and court officers from the portion of the trial at which a Jackson v. Denno*fn2 hearing was held.
Relator's contention that his state trial was held too late is founded on the Act of June 28, 1957, P.L. 428,*fn3 providing for the disposition of detainers lodged against prisoners. The statute provides that whenever an untried indictment is pending in the Commonwealth against a person imprisoned in a correctional institution of Pennsylvania, "he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the District Attorney of the County in which the indictment is pending and the appropriate court written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment * * *. The request of the prisoner shall be accompanied by a certificate of the warden * * * or other official having custody of the prisoner," giving the terms of his commitment, the time served and to be served and certain other relevant facts.*fn4 The prisoner's demand for trial "shall be given or sent by the prisoner to the warden * * * or other official having custody of him, who shall promptly forward it (together with the certificate) to the appropriate District Attorney and the court * * *."*fn5 The Act then provides: "In the event that the action is not brought to trial within the period of time as herein provided, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment be of any further force or effect, and the court shall enter an order dismissing the same with prejudice."*fn6
Relator delivered his request for trial to the prison authorities on Friday, March 26, 1965. It was forwarded and delivered to the District Attorney on Monday, March 29, 1965.*fn7 Relator's trial began on September 23, 1965, which was 181 days after he delivered his request to the prison authorities but 178 days from the time it was delivered to the District Attorney. The state trial court held that the 180 day period was to be computed from the date of the delivery of the notice to the District Attorney. The Pennsylvania Supreme Court's per curiam affirmance implicitly approved this conclusion. Relator's claim on this interesting question of statutory construction amounts to no more than a disagreement with the state courts' resolution of a state law problem. It does not present a federal question, for there is no claim that relator is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). We therefore would not have authority to grant relief even if we disagreed with the state courts' construction of the statute.
Relator belatedly seeks to place a federal cast on his claim by asserting on appeal that the failure to try him within 180 days from the delivery of his notice to the warden amounted to a denial of his right to a "speedy trial" guaranteed him by the Sixth Amendment as incorporated into the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). However, Pennsylvania's statute providing for a 180 day period does not create a constitutional rule of thumb which measures the time boundary for a "speedy trial." In the first place, the statute itself contains a provision that for good cause the court may grant any necessary or reasonable continuance,*fn8 and this, of course, would extend the 180 day period. Moreover, the 180 day period does not even begin to run until a prisoner elects to make the statutory request. In any event, whether the constitutional right to a speedy trial on an outstanding indictment has been violated depends on all the facts and circumstances of the individual case.*fn9 It cannot be said, therefore, that the state courts' construction of the statute is so unreasonable that a federal court should interpose a contrary interpretation in order to enforce the speedy trial guarantee of the Sixth Amendment.
Relator claims that the exclusion of all persons other than himself, the attorneys, the witnesses and court officials during the Jackson v. Denno hearing on his motion to suppress his confession denied him the right under the Sixth Amendment to a "public trial."*fn10
At the outset it must be acknowledged that in Gaines v. Washington, 277 U.S. 81, 48 S. Ct. 468, 72 L. Ed. 793 (1928), the Supreme Court held that the public trial provision of the Sixth Amendment did not apply to state proceedings, although it did not decide the extent to which the due process provision of the Fourteenth Amendment would affect a demand for public trial in the state courts. Gaines has never been overruled explicitly,*fn11 but it is now clear that the provision is applicable to the states by virtue of the due process clause of the Fourteenth Amendment.*fn12 Indeed, the Supreme Court has recently held the companion "speedy trial" provision of the Sixth Amendment applicable to the states by incorporation into the Fourteenth Amendment.*fn13
Holding as we do that the public trial requirement of the Sixth Amendment is applicable in state criminal proceedings, a number of problems must be considered. The first is whether, regardless of the merits, relator waived his right to claim the constitutional protection. The second is whether the Jackson v. Denno hearing falls within the constitutional guarantee as part of a criminal "trial." The third is whether the right to a public trial is violated where the exclusion of the public is the result of an effort to prevent the prejudice to a defendant which would result from public knowledge of the existence of his confession before it has been determined to be legally admissible against him. The fourth is whether a defendant must show specific prejudice resulting from the denial of a public trial.
1. We turn first to the question of waiver. Here it is necessary to review the state court proceedings which dealt with relator's motion to suppress his confession.
Relator's case originally was listed for trial on September 17, 1965, but when he filed a motion to suppress the confession, the trial was postponed pending a decision on the motion. On September 22, 1965, a pre-trial hearing was held on the motion to suppress. After testimony had been presented and the judge announced that he would take the motion under advisement, relator withdrew the motion against the advice of counsel because relator feared that otherwise the trial would be postponed pending decision on the motion and this might constitute a waiver of his claim under the "180 day rule."
On the next day, September 23, 1965, the case was called for trial before another judge. After selection of the jury was completed on October 1, the trial judge, apparently after discussion, permitted relator to renew the motion to suppress despite its withdrawal on September 22. The jury was sent out and the courtroom was cleared so that the only persons present were the relator, his counsel, the Assistant District Attorney, the witnesses and the court officers. At the proceeding on September 22, the Assistant District Attorney had called the attention of the hearing judge to the newly adopted Rules 323 and 324 of the Pennsylvania Rules of Criminal Procedure, 19 P.S.Appendix which had become effective one week before and which required that the courtroom be cleared. Although the hearing judge expressed doubt regarding the constitutionality of the rules, he noted that no spectators were present and apparently issued no exclusionary order. Relator's counsel said nothing regarding this problem at that time. Before the trial judge, however, when the courtroom was cleared, relator's counsel addressed the court as follows: "Counsel for the defendant * * * sees the possibility that at some time the question may be raised that this was a denial of the defendant's right to a public hearing at every stage of the proceedings, and this is an important stage of the proceedings, and we wish the record to note that we are not waiving such right if it should be found at a later date that such a right does exist. * * * We feel there is a possibility that the rule itself may be construed at some time in the future to be a denial of the defendant's right to a public hearing."
Although this statement was made in terms of understandable dubiety regarding the ultimate constitutional decision, it clearly served as an objection to the action. It certainly did not constitute acquiescence in the exclusion of the public.*fn14 Here there was not only no acquiescence in the exclusion of the public but an objection -- however it was phrased -- to the court's action. We hold, therefore, that relator did not waive his right to a public trial.
2. This brings us to the question whether the Jackson v. Denno hearing is so much a part of the "trial" that it is subject to the Sixth Amendment's "public" requirement.
A Jackson v. Denno hearing is in a sense preliminary to a trial. It results either in the suppression of a confession or in a determination that it may be considered by the jury at the trial. The hearing is often held some time prior to the trial itself and even before a judge other than the trial judge. The defendant's testimony at the hearing may not be used against him if he does not take the stand at the trial.*fn15 All these elements tend to separate the Jackson v. Denno hearing from the trial itself.
On the other hand, the Jackson v. Denno hearing differs strongly from those incidental or collateral discussions outside the presence of the jury which occur during a trial, at which it has been held the public may be excluded, such as a discussion regarding the appointment of counsel for an indigent defendant,*fn16 or a side-bar conference regarding a question of law*fn17 or motions for severance and bail,*fn18 or conferences in chambers on other matters not properly for the jury.*fn19
A Jackson v. Denno hearing has more of the characteristics of a testimonial hearing, which is the essence of a trial proceeding, than does the selection of a jury, which we held in United States v. Kobli, 172 F.2d 919 (3 Cir. 1949) to be part of a public trial. A Jackson v. Denno hearing is a testimonial inquiry at which witnesses are sworn and testify, subject to cross-examination. Strong pressures are naturally at work on the prosecution's witnesses to justify the propriety of their conduct in obtaining the confession and on the defendant to have it excluded from his trial. Such a hearing, with conflicting credibility in issue and factual findings of the judge the ultimate outcome, is in every respect equivalent to a trial proceeding except that the jury necessarily is excluded from it,*fn20 since its purpose is to have the judge determine whether the confession should be permitted to go to the jury. Whether a Jackson v. Denno hearing held after the selection of the jury, as in this case, is part of the "trial" and within the Sixth Amendment ultimately turns on whether the purposes and policy underlying the requirement of a public trial apply to such a proceeding.
The right to a public trial is deeply rooted in history. Pennsylvania, where relator's trial occurred, was the first state to guarantee a public trial in its Constitution, adopted in 1776.*fn21 But the principle long antedated the first Pennsylvania Constitution. This history is briefly sketched in Commonwealth ex rel. Paylor v. Cavell, 185 Pa. Super. 176, 181-186, 138 A.2d 246, 248-250, cert. denied 358 U.S. 854, 79 S. Ct. 84, 3 L. Ed. 2d 88 (1958). William Penn's Code of Laws of 1682 in the Frame of Government included a provision that "all courts shall be open. * * *"*fn22 The present Pennsylvania Constitution of 1874 provides in Article I, § 9: "In all criminal prosecutions [by indictment or information] the accused hath a right to * * * a * * * speedy public trial * * *." Mr. Justice Black's statement in In re Oliver, 333 U.S. 257, 268-269, 68 S. Ct. 499, 505, 92 L. Ed. 682 (1948), of the evils which gave rise to the requirement of public trials has been frequently quoted: "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 Chamber, and to the French monarchy's abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty."
A few of the basic elements in policy underlying the guarantee of a public trial affect the question before us. The searchlight of a trial which is open to the public serves as a restraint against the abuse of judicial power and also against possible perjury by witnesses who know that their testimony is exposed to public knowledge.*fn23 Another element is that a public trial may lead, even accidentally, to the appearance of an important witness who, having heard the testimony, may come forward with relevant new evidence which may help the defendant.*fn24
The policy aspects of the constitutional guarantee have significant application in the unique situation presented by a Jackson v. Denno hearing. It is especially important to have public knowledge of claims of police coercion or disregard of the constitutional right to silence and to the assistance of counsel. It is equally important that the testimony of police officers regarding police conduct which usually occurs more or less in private within an environment which the police themselves create and in which they reign, should not be given in secret. Thus the desirability of the public exposure of the claims and denials of coerced confessions, the policy that judicial proceedings be under the scrutiny of the general public in order to avoid judicial oppression and to discourage perjury, and the provision for the possibility that one who has valuable information might stray into the courtroom as a spectator and hear the proceeding, all are as relevant to a Jackson v. Denno hearing as to a full trial. From this conclusion it follows that such a hearing falls within the constitutional requirement that in criminal prosecutions all trials should be public.
Here the suppression hearing took place after the jury was empanelled and sent out of the courtroom. It was no less a trial than it would have been if it had taken place in the presence of the jury, as might have been constitutionally permissible.*fn25 We hold, therefore, that a hearing which, as here, is held as part of the trial and after the jury has been sequestered, falls within the constitutional guarantee and must be conducted as a public trial.
3. The order excluding the public was made pursuant to Rules 323 and 324 of the Pennsylvania Rules of Criminal Procedure which became effective on September 15, 1965, a week before the trial began.*fn26 Rule 323, adopted to implement the decision in Jackson v. Denno,*fn27 applies to a hearing on an application for the suppression of a confession on the ground that it was involuntary, and Rule 324, adopted to implement the decision in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964),*fn28 applies to such applications which claim a denial of the assistance of counsel.
The relevant language of both rules at the time of trial was identical:
"(c) When application for relief is made, a judge of the court shall:
"(1) Fix a time for hearing which may be either prior to or ...