analogous to the waiver of a right to jury and waiver of right to counsel situation both get the right to have a judge present focusing on that one aspect of the claim the right to have the judge present for all ke if the right to have a judge present is most analogous to the right to have counsel and the right to have a jury they are both key components of the structure of a trial and those the right to have a jury and the right to have counsel cannot be waived by counsel those have to be waived by the defendant himself the extension of duncan vs louisiana and forever to the situation where whether the judge is not present is the most reasonable application of clearly established supreme court law the one case that has been relied on by the other courts to go against that the liberations there's no indication of any of that it's the fact that it is not a court proceeding i don't think would help respondents argument i think it hurts it because what you've done is you've taken taken what is supposed to be a court proceeding and taking it outside the court point it's whether or not that can be waived it's not whether you know it's appropriate to do it in the absence of a waiver the issue is that defense counsel when you absolutely that that is the issue and what and what i'm saying is that the situation is most analogous to waiver of the right to jury and waiver of the right to counsel which counsel on my own cannot do the one case that did find a waiver words were defense counsel waive the right to have a judge present was prince and that was for  dear and i submit that that case is completely distinguishable because at least there was a magistrate judge present which is different from allowing these jurors to take this relation sevens home at least it concern of wouldn't have the judge present even to the been in the courthouse because it would have been judge is not present your honor but there is in federal court there's a marshal present in state court there's somebody else present to make sure that outside but making sure that nobody else is going to be involved in reviewing this evidence well that's something else and then you can is home he's not present your honor the judge whether or not he's pretty the judge obviously is not present in the jury room but he has complete control over who gets into that jury room and who else gets to discuss that and if you z the supreme court case that said like an unbiased judge or jury violation of the right to have the judge oversee the trial cannot be harmless that case would control that this was structural error the one case that said that it was cases and you have to decide which is the most reasonable which in which case seems to be the most applicable but it's made the need maybe neither is applicable in which case there's no clearly established federal law governing this client that's i mean that's also  stands for and the principle that the case stands for is that in a situation where there is no judge present structure is destroyed the structure of this trial was completely undermined and you can also go beyond gomez you can look at the other aspects of this case which aren't simply that the judge was not present you also have the fact that the defendant was not present defendant's counsel was not present and you have a really strong chance of of of interference by third parties of jurors showing this evidence to their spouses or to their neighbors so this case is actually present a stronger situation for the destruction of the structure of the trial than that presented in gomez and i think you also have to look at the language of is aware in this eighty three eight feel that is the governing question in the case before i do that i would just like to put it into context the suggestion that that one can freely speculate and we have no way knowing what did or did not happen viz of the the receipt of the information by the jurors and that is just to point out that in california in addition to the appellate process there was also hey this court this procedure that would allow in a talent upon conviction this defendant through counsel which he had to pursue any irregularities or improprieties that could be discovered with respect to any receipt or disclosure of information and that is a point that i was kind of a happy to be discover and i'm just pointing out that those counsel had every opportunity to determine whether in fact there were any improprieties in this case and the reason that that is important is that until and unless the supreme court identifies any flaw in this procedure not that i'm defending the procedure per se but until unless there is some indication much less an indication that it's structural error one simply cannot assume that in the absence of any supreme court authority and there is none in the scenario that it is structural federal constitutional error and the furthermore it is it is if not structural or it is trial error in which prejudice a shell of the fact is we do have a record in which there is no indication of any by the jurors and again the novelty of the situation being what it is as judged by a pointed out there is no indication here that these jurors were doing anything differently if they were nelson because i do need to proceed to my arguments that that's always the potential in a case there is always the potential for a juror to commit misconduct but we require a showing of misconduct typically and we would here as well get  to your point your drawings and none of the cases identified by the petitioner have anything remotely to do with the subject duncan vs louisiana as a court knows is totally unlike this case forever since california has to do with the deemed significant cannot be controlling in this case for a d p a purposes and perhaps is a case that was never cited by this petition or not cited in the opening brief or the reply brief so what we have here is a total absence either in the supreme court or for that matter in circuit authority of any recognition that this is federal constitutional error and yet in what i submit was was a a and expansive if you want your petition both the state courts reviewing this case namely the state appellate court as well as the district court both the magistrate and the district judge writing separately of those courts were willing to apparently assume if you will that federal constitutional error was somehow implicated here despite the absence of any supreme court authority to that effect and having done so all of those courts evaluated whether or not the error was harmless  require a supreme court precedent because it's so fundamental well i think what your honor is proposing is sort of the ultimate exception if you will in eighty eight circumstances and i would submit that if if we are to thought that the case was so extraordinary and exceptional that you did not have to comply with the analysis that the supreme court has said applies here and turning to this case several things first that that approach i think was not suggested or contemplated or in any way entertained by any of the courts that reviewed it which i think is some indication that it is not in this case the you know the mother or father of all errors so to speak but but furthermore that in terms of the reasonable at this that all of these courts ultimately evaluated this case in terms of federal constitutional dispense with the need for any supreme court authority on the subject because anyone would recognise i was then the fact that none of these judges did that this is structural error and furthermore we won't require any proof of prejudice the state appellate court here did something  was not obligated to do because if one reads these opinions carefully which i hope i have what's interesting about them is that nobody ever identifies a specific federal constitutional lawyer in the case although nobody says it was a great idea either but the point is that nevertheless they engage at least in the first instance in the state court level in the most rigorous harmless error analysis that we conduct and they find the error harmless and and under the circumstances of this case  honor the district court did i get a five the a constitutional right it is you here and that was the right to have the judge present for all proceedings the court didn't say that was violated it assumed it said i'm assuming it's violated and then it went on to the error issue but he did find that this is an absolutely outrageous situation and i think that in looking at this case we have to focus on what is it issue here which is alleged child pornography being sent home with the jury this is it it's it's so far beyond the pale that you are not going to hopefully you're not going to see it in any other cases but it does implicate a number of substantial constitutional rights which i have laid out in my briefs and unless the court has any