seems that this district combines the process and so as a result our argument is that it's a critical stage of the proceedings there's there's no case that the trial starts with the selection of the jury itself and a jury not in this district court with the computer drawn face to have to support that the jury selection is right to be present at the jury this is what the array there is no case that i can direct you hoping i'm sorry you're hoping it'll blow is worse yeah yeah i mean that that i think that's a fair assessment even if you're right about that were is the age of prejudice isn't creating the impression that the proceedings are unfair to both the defendant into the community at large he was informed the day before that look you have this right let me explain it to you because here we let the defendant participate in this process so if you're allowing the defendant to participate in this process then i think you have to treat him as any other  impacts the integrity of the process and the integrity of the process is important because we can't allow criminal defendants to perceive that they're going to be treated differently or or unfairly and that has value not just to them different things happening the first is just the selection the new year and then yes you get into the handle yes selection yes the people who are  people are part of the new year and nine some of them the computers but some of them and then they go downstairs from my from i believe so and i think that's why the attorney brought this to the attention of the trial judge saying that look you know we want him present and we want him to appear on shackled and the judge said look that will be made to happen when you go above but i can't have that happen below when we start picking the names out and so the attorney turns to mr hicks and says look this if we if you go do you have a right to be present on the second floor if you are present on the second pour people who will be on the sherry are going to see you  when the computer spearing our name and i think in this case yes because this district court appears to consider this part of the jury selection process we call it right the name that people i lot of cases say the beginning of the jury of the of the of the sixth amendment right to be present yes is when the the empowerment of the actual jury yes but i would assert mr hicks asserts that the impediment here began at the computer process on the second floor because again he's being informed not only do you have this right to be present the next day the court wants him to fill out a waiver a written waiver saying that he was electing not to be present and he made that election because he was told that if he wanted to participate he could but then the jury would see him and people that would be on this jury would see him shackled so he was given no choice really there are a lot of court rules which say a defendant's rights in the selection of the actual jury if there's there's not a rule that i'm aware of are you aware of some rule where you go down there at the selection process of the the array from which the jury will be a pile to object to the way they're selecting the people that are going to be in the area i see no i don't think that the client i mean that that's not where you're necessarily voice voicing your objection to screen out a particular juror well if you don't have a right that there's no rule or anything allow you to object to it court the process begins with the computer not with when you go upstairs and the reason i say that and perhaps that's why i'm asking is an it's not so much an extent well i guess an extension of the role or that the rule begins in this case here the eastern district and something not for the country except that perhaps in the rest of the country they're doing that they're initiating the process differently and that makes it so my interest thing is what we do about it ok the shooters are doing it wrong in the rest of the country yet they don't allow you to go down and see the actual jury selection no i think the rule is if you're going to say you have the right to be present at the beginning of this process ok then you have to then you have the right to appear as a as somebody i think the what's the expression as a as any other free man with the dignity of dressing in civilian  affected if we were to say that with we were to follow the general principle that the trial starts in the critical phases begin when  they elect to attend this process they sit in the front of the room just at a long table and they face out at what looks like a large classroom there are just a rows of seats on there are there's a bank of windows behind at that at the at the room so it's not like a court room that secured with no windows the answer in this building some court rooms and that's correct in this joining in new jersey th selected the jurors are told to walk to the front of the room they leave the first couple of rows and and they assemble according to their number must make you are they told this is the defendant no says mr hicks no there are several defendants in the no it would be each case that's called the attorneys are given the opportunity and their client should they elect to go are given the opportunity to just simply watch the numbers call the people walk to the front of the room the assemble but why isn't there some lingering effect if mr hicks were to walk in inshallah and just sit there and then a few minutes later or an hour later they go to the second to the mother floor and now some of the people who were in the first veneer are obviously are part of the people whose names that spewed out by the community so now they saw mr hicks if he had come with these chains on and now they see him in the suit i but why is there  some lingering effect there may very well be and that's that in terms of shock going in handcuffing it's well established that there has to be a compelling state reason for a defendant to burden of proof and the very first image i get of this guy is somebody who the government deems has to be shackled how do you rid of that well you may not be able to that may influence a jury which is why did george and his own attorney caution them against electing him but the question is did the judge err by by telling this defendant that he would have to be shackled and handcuffed if you elected to go to the jury i suggest the question is does he have a right select and and but then he had to be shackled as the kid said there's nothing on this record which indicates that there was that handsome security problem at the array that was the also president  the actual trial i disagree your honor i think there's a huge difference between a defendant attending this unsecured area that contains hundreds of people that is on the second floor of the courthouse that has a tried without being shackled but the normal did not say why and to shackle someone you've got to have a real articulate a reason you never articulated a reason why you have to shackle but he wanted to go and watch the array he didn't we are talking about somebody who is in custody and charged with a dangerous offense he has to be transported searched certainly the only other alternative available to the to the judge would be to have allowed him is literally filled with hundreds of people that is not at all the time our friend goes into elect to be present for this there always are when i have a i have not and my experience and i did i didn't canvass extensively but no one has had this situation where a defendant selected to attend a defendant in custody would have to attend in shackles and handcuffs for security reasons and they elect not to attend one marilee because this doesn't add anything to the jury selection i don't know of any i haven't had that experience and the people that i did talk to as i said even the situation here we didn't canvass extensively to be lined out of any but i would call the marshal service and find out if they had had this experience but i  am hard pressed to think of a way an alternative to allowing this defendant to appear at this proceeding that would ensure the safety of all but by that you but what on this record reflects that that  they also then or are brought up like to a courtroom then they are transported in the marshal's elevators which are located out of the sight of the jury the jury does not see behind that closed door in a court room so they are not  into the court rooms that is the elevators are located off to the right side of the bench or the left side of the bench pending on which side the courthouse that the jurors never see them they are already bought into the court room and seated when the jurors are  e the mechanical selection of the jury panel that is then sent to the courtroom certainly every dependent is there during the entire jury selection process and that's perhaps the most important point there was the substantive jury selection process there's nothing substantive about this process you can't object to somebody being placed on the panel and set up stairs you simply can watch them as they walk to the front of the room but i despise has nothing to do with it  the judge said he had a yeah right to go there we're not dealing with prejudice any more than if they don't allow him at the jury actual trial and they have the state later says well the governor says he wasn't wool that says a defendant has a right to be present at the mechanical selection of the panel nonsense a non substantive proceeding where there's no questioning of the jurors there's almost nothing and into the you could be there why don't we have to do that why you know why didn't i think the judges routinely tell the defendants that they can attend if they'd like to but they also tell defendants who are in custody that they can't go there unless they are secured  statutory criteria that is if they are a risk of flight or a danger to the community they're not held because they can't meet a bond that's the state court system so this defend it was being held because he was charged with the section twenty four c violation he was an armed career criminal and he was held because he was a danger to the community and i think that i think you told us that he walks and they walk him through the car no if he's if he wanted to attend the selection this this mechanical breed jory selection process yeah he would have had to be walked through the corridor he the way the elevators on the second floor are configured there's one over near the snack bar and then there's the main pool of district court judge did not care but even if he did there's no prejudice to defend it he hasn't even articulated a potential a specific prejudice in this case something about a juror that wasn't discovered or that that little opportunity that they had to observe that particular member of the panel walked to the front of the room it's almost inconceivable that if there was something about that person's demeanor that was objectionable that it wouldn't have manifested itself during a much longer might consider ask how asking somebody in the u s attorney's office to think about whether that the judges should say that the defendant has a right to be present at this mechanical  fair enough i mean i'm thinking of it in terms of potential batson challenges you know we we can make them certainly when you go up stairs and you see the composition of of the pool coming out and people making a challenge saying look you know i don't want discretionary this but use of primary challenges should united a point where using computer no but i mean it it it may make a defendant feel more comfortable that this is a fair lottery system of potential people and that there it would seem that they must because again you know i come back to this not just was he informed that he had this right he was asked to sign a written waiver which suggests that this is considered an important part of the overall back it should be i mean it's an art it's not in the joint appendix but it's it's clear from the transcript that he was asked to sign a written form saying that he waives is not the government acknowledges that yes but more than that although there may not be some actual and that's that's part of the argument yeah is that again and by by conditioning your presence there and it may well have been he may have said look i don't want to be there anyway but he was told immediately that if you want to participate in that face you have