your argument now actually a sixteen to forty we reverse is massachusetts mr kimberly thank you mr chief justice and may please the court the upshot in practice of the commonwealth's proposed rule in this case is that when a criminal defendant like petitioner demonstrates that his trial counsel failed to preserve the fundamental fairness of the criminal proceeding by failing to object and therefore allowing to stand a structural error the grave is kind of constitutional error there can be in the course of a criminal trial it will be impossible for the defendant to obtain relief under strickland against washington for ineffective assistance of counsel and that's because the commonwealth says that such all such defendants must prove actual prejudice resulting from their attorneys deficiency but the problem is that when an attorney deficiency results in a structural error it will be practically impossible to demonstrate what the practical effect of problem is the structural errors when we put it this way come in all sizes and shapes so here we have in not an exclusion of the public from the trial are distinctions to be made and in the context of a public trial right for example those distinctions play out as at the threshold question whether the public trial right in fact has been violated but certainly what this court suggested in waller where the courtroom closure was for a suppression hearing at the outset of the trial and not the entire trial that when the public trial right is deemed to have been violated it is itself structural  that doesn't mean it is as justice stevens recognized in footnote twenty three of his concurrence in reporters committee that doesn't mean that the public that every single closure of the court room necessarily implicates the public trial right as the frame of the sixth amendment would have understood it for instance sidebars and in some in some instances chambers conference's and certainly any circumstance in which the state is is able to pass the strict scrutiny test established by waller those sorts of closures although closures in the technical sense would not be closures in the constitutional sense i am that this may not be directly pertinent but why was the courtroom considered closed i mean it was filled with members of the public now they were there and it's part of the jury pool but of course they were all chosen i mean what was the did the judge have to set aside how many seats for people who weren't actually being called for jury duty before you would conclude that the courtroom was not closed well i would have thought that the courtroom so that not i mean it's a limited space there's only so many spaces and it's you know  he's got to get the jury pool in there and you know they took up all the space so you must your position must be on the air itself that the judge should have kept aside certain seats for people who weren't being called for jury duty i'm just curious how many that is so i said there are two elements to that question i'll take them each in turn the first is we know that the courtroom was closed because members of the public and indeed every member of the public who expressed an interest in attending the proceeding who was not a member of the jury veneer was turned away actively with the you presumably i guess the argument as it were they were turned away because there was no no room and there was no room because the court room was full of members of the public who were called for jury duty so that and that leads to the second answer and that is as this court held in presently first of all the courtroom crowding is not a sufficient answer for turning away a sufficient justification for turning away other members of the interested public well i know i don't have to go back and look at princely but courtroom overcrowding is not a justification for turning away other people what are they supposed to do well but to be very clear that is precisely what happened and presently presently the just what did they same presently that you were supposed to do in other words there's no room in the courtroom you say well that's not a justification for keeping people out so the answer is very simply bringing in  in groups of say forty rather than allowing all ninety in at once their range of i think very practical solutions to this particular problem that would have allowed the judge to keep the gallery open to members of the public pursue nuclear lawyers or the public that judges a member of the public the bailiff is a member of the public i'm presuming that once those jury members if they were given a choice would not be there  and so i think they have stopped being a member of the public as might be understood with respect to access i think one thinks of members of the public as anyone who might be interested but not compelled  right all right so i think what chris lee said if i'm not mistaken is that you can't keep interested people just because of overcrowding that's exactly right and i think underlying that holding is a recognition that not all members of the public are the same so in this instance for instance the members of the public were excluded from the proceeding where the defendant's own mother his mother's boyfriend sister and pastor  and and so bearing in mind that the jury impaneled meant is the point at which the defendant is introduced to the judge and jury for the first time it's the first opportunity for the defendant to make an impression on the people who decide his or her guilt or innocence it makes a real difference both in terms of how the defendant behaves that members of the interested public not just any member of the public but his support system his friends and family are present it has an effect on his demeanor in the confidence with which he presents himself but it also has an effect on how the jury perceives him because what does it say that at the first time that the members again of the jury were going to decide this young man's guilt or innocence that he has presented to them without the support even of his mother and what you are saying  i think this is true is that there are circumstances in which close in the courtroom can have an effect on the outcome of the trial but conversely is it your position that it's never possible for there to be a violation of the right without there being an effect on the trial that it's never possible to show that this could have had in the affect on the outcome i think that's right it's to say that and this is reflected in this court's press as a practical matter as a best theory about how this could have affected the trial what happened here well as i was just describing there is no way to tell what effect the presence of the defendant's mother would have had on the impression made to the jurors who again were first introduced to him in form their first impression of him sitting alone without the support of anybody there is no way to know what effect it had on his own demeanor there's no way to know what the effect of his his mother's and pastor's presence would have had on the demeanor of the attorneys and the judge these are all completely and as as we say it may be that the attorneys may have exercised preemptory challenges in different ways it may be that prospective jurors moved by the differences of the presence of the public would have answered questions in somewhat different ways and would have formed different in quick attitudes about the defendant these are completely unknowable in indeterminate effects though and that's exactly what this court said in waller and twice since waller of the lower courts have universally treated the question of a courtroom closure as a structural error as to which harmless error on direct review simply cannot be demonstrated and  certainly that exact same analysis applies with respect to strickland actual prejudicial suppose the two people who couldn't get him were members of the public but not the defendant's mother and her pastor well again i think it would depend on who they are i think the difficulty here also is there is no way to tell what sort of a downstream effects of the closure are outside the courtroom it may be that those who are excluded the first day let it be known to others that the courtroom is closed and others then don't plan to show up and don't even bother to come in there is a big difference between the absence of an attorney or trial or a conflict of interest in both those situations there's not a possibility of weaver or forfeiture knowing waiver or forfeiture because the conflict the council has failed to tell someone a truth that their conflicted it's why wouldn't it be in the best interest of every your attorney to say i didn't know that a closure was a constitutional violation the way this gentleman did isn't that in circumstances where that isn't actually the truth you know every circumstance so virtually every circumstance the lawyer knows there's been a closure there's been plain error in his failure his or her failure to object so how does the judge determine whether that waiver or forfeiture should or should not be held against the defendant well i think the same way that the judge would do so in any case implicating a strickland claim based on a failure to object the threshold question is whether the attorney rendered deficient performance and in this case for example at page seven eight of the joint appendix there is no question that the defen attorney here acknowledged that the sole reason he declined to object to the courtroom closure was he did not know that it was a violation of his client's public trial right and if he had known he would have raised an objection that's a i think a straightforward case of deficient performance now it's true the commonality in united states have raised the possibility of sandbagging in a circumstance where a defense counsel who in fact does know about the violation of the right nevertheless declines to raise it to preserve the possibility of bringing a stricken claim later but that turns on the presumption that the defense attorney would make a material representation misrepresentation to the court and later collateral proceedings address it addressed at that at the question of of the first player question on direct appeal but you have to face a problem for correct and show it affects the integrity of the proceedings or you have a choice you can bring it in collateral proceedings we wouldn't have to meet prong four and actually be easier to win a sixth amendment collateral claim than it would be a plain error claim and it seems very unusual to me that we create a structure that would incentivize through honest and good advocacy defiance of the normality of final judgments so that's question want to question to is related would we then create actually a really perverse incentive for the state to secure i c waivers from individuals so that they don't confront these kinds of problems and therefore a kind of a professor stunt sort of problem by perfecting procedure we actually result in that style at all can you help me with those two problems so the question about clean air first i think it depends on the jurisdiction that you're in in this jurisdiction for example massachusetts work with me with the typical jurisdiction i know massachusetts little different what well it is so there are there are groups of two massachusetts falls into one bucket most the federal courts fall into another bucket work with work with the usual the federal jurisdiction which is predominant in most states which is th collaterally and i actually i appreciate i wouldn't i wouldn't deny that this is a collateral proceeding here and i'm not i understand that but please just stick with me so i under rule fifty four b in the federal proceeding in the federal context four pronged play narrow context we think it's true that for the most part in a way that the lower federal courts have dealt with that is that the third prong some sand effect on substantial rights is presumed when there is a structural  and so i think as a practical matter still a problem for the right is still a problem for and i think that's where for instance there is an opportunity for the court to avoid sandbagging if there's any concern that that the defense counsel knew about it and kept the interaction skills with us and bring it doesn't bring it on direct appeal good defense counsel wouldn't bring it and would leave it for collateral review in most jurisdictions sure i mean i think in that circumstance very frequently plane a review would be available i'm sorry the pushback was available the question is wouldn't the judge be doing exactly what's happening here with the judge on the fourth prong look at what actually happens whether the closure was completely part of the trial was there a transcript of the four d or so that they could measure the possible effects or not and and up saying that the substantial integrity of the proceedings have been violated do you think that as a matter of law we could overrule a finding of that nature if it was in direct review underplaying the i think in most circumstances in where there is a structural error that passes the third it will almost always pass the fourth i don't know that's the lessons of her case well there's not a verse is true  i don't mean to deny that the fourth prodding has has does real work it certainly does and there are cases pacific circumstances in which maybe then the appellate court would decline to grant relief on collateral review and the defendant would in that circumstance be able to bring a collateral challenge under strickland the one i just want to push back a little bit on the hypothetical because in fact there are a number of state jurisdictions in which player review of this sort isn't available at all because they declined to presume prejudice on whatever the equivalent of a lotto prong three is and massachusetts is such a state and so in our case in can and very frequently do say that structure that you have to show actual prejudice actual prejudice in the sort of strickland sense for relief under plain aaron and that circumstance strickland is a critical  we think relief valve it's the only way of getting later review in the circumstance where the structural error perpetuated by the attorneys deficient failure to exact renders the trial fundamentally unfair and  i think it bears bears emphasis to recall that the commonwealth does not deny that if there weren't objection in this case the defendant in this case and in other cases like it would be entitled to a new trial automatically on direct appeal the commonwealth does suggest putting that error and remember structural errors go to the fundamental fairness of the proceeding they are the greatest sort of constitution errol's errors possible in the course of a criminal proceeding putting that error together with the additional injury of having been appointed counsel by the court who's too ignorant to know to object to the structural violation that the defendant should be completely out of luck this is not all errors are not the most grievous errors possible in the criminal process they are a particular type of fear which the assumption is there's no way to tell whether they're prejudicial or not but i mean this this may be a good case that doesn't mean they're the most shocking miscarriages of justice you can imagine well i don't think that they're necessarily shocking but i would say that this court structural air precedents make clear that although one feature of a structural error is that it's impossible to to determine the practical consequences it is an independent feature of structural errors that they render the trials fundamentally unfair the idea is that the rights that are protected by the structural error doctrine are just essential elements to a fair trial and so take for example the right to trial by jury under the commonwealth you know yeah you're picking good ones but i mean i can come up with a long list of things that i think are more serious violations then the exclusion of the public from war dear when you have the other jury members there i understand that that is an error and i am middle of the argument of course that it is a structural err but i underscore along with the idea that these are the most grievous miscarriages of justice you can imagine your particular characteristics of them that put them in a different category the and a list of errors that could occur in criminal procedure i think you'd agree there's some that you would put ahead of excluding members of the public  because one of the things that we've said over and over about structural errors that it's it's impossible to show how they affected the trial that's correct and and that's really what's at issue here is whether we should put the  defendant to the burden of showing how it affected the trial when in fact we've said over and over that you can't do that and so whether they're important whether they're not important whether they're critical to fundamental fairness or not you know is in some way is beside the point well i so i think there are two independent ways of thinking about it and that certainly is is one very important way of thinking about it it's something that we stress in our briefing and i think that's absolutely right this is the point about putting two wrongs together and just saying that but it's not a question of putting two wants together on the commonwealth's argument and the argument of the united states is that there is no violation of the sixth amendment right to counsel unless the the counsel's performance deprived the defendant of a a fair trial it's this is not a sixth amendment speedy trial i'm sorry public trial act issue it's a right to counsel issue and prejudice is built into the sixth amendment strickland standard because the defender had an attorney so on one theory was that the thunder deprived of them attorney while the furious although there was somebody sitting next to the defendant a sking questions and pretending to be an attorney that attorney was so bad that he might as well ma have had an attorney so it's built right in and so also motley there has to be the determination for there to be a sixth amendment right to trial violation that there was prejudice now you can make the argument that it's impossible to tell whether there was prejudice but it's built right into the speedy trial into the right to counsel i think that's exactly right i wouldn't disagree with anything you said but that leads me to the second point that i was going to make and that's that strickland instructs that the fundamental focus of the ineffective assistance inquiry has to be on the fundamental fairness of the trial it therefore that the two as we understand the two steps it's whether there was deficient performance subjectively unreasonable performance and whether that objectively unreasonable error in turn rendered the trial unfair now in the minority of cases we do not disagree in the minority of cases involving trial errors the way to prove that the error rendered the trial fundamentally unfair is to show that it was sufficiently series that it undermines our confidence in the result and you have to say that that's always true or it's it's true in such a high percentage of the cases that there's no point in even making that an issue no matter how steep the burden that the prosecution might have to satisfy that is that is the the reasoning underlying chronic i think it's somewhat different from what we're suggesting here what we're suggesting here is that the rights protected by structural errors are fundamental to the american system of criminal justice and there that denial renders the trial fundamentally and inherently suspect and therefore unfair and so it is simply another way to prove that a defense attorney's objectively unreasonable error rendered the trial unfair to show that it resulted in a structural error it is the it is the hallmark of a structural error that it does exactly that  the trial unfair let's put this label side for a minute you really think that it's impossible that there can never be a case where a violation like the one that took place here had no effect on the outcome of the trial again i against the issue there was no brass to hadn't acted a statute that deprived criminal defendants and d w i cases of a right to trial by jury the judge had to decide guilt in that case the defendant was found guilty he appealed throughout the state system his appeals were denied on federal hey vs review it was not until the a circuit looked at the case and the government in that case making the exact same arguments that the commonwealth united states here make the court there said it is no answer to the denial of a jury right to say that the evidence against the defendant was strong the point is it was the wrong entity who decided guilt or innocence it is fundamental to the american system of criminal justice and to our promise of fair trial that criminal defendants be tried by juries well that's a different i mean that's a different situation i suppose the only people who wanted to go the only members of the public who wanted to be in this in the courtroom were the family and friends of the victims of crime so would be a hostile audience i think i think that would implicate many of the same problems that we have here there's no way to tell the ways in which  individuals would have been affected by their presence it very well may be that that would have cast the defendant in worse light but there's no way to know maybe some members of the jury veneer would be off put by what they viewed is as especially agree just behavior in that circumstance the point is it is it remains a speculative inquiry and i think as as as we've suggested the i think that the court's cases on this point really leave very little doubt that as far as denial the public trial right goes there's no way to tell what the difference is and if in order to obtain relief we require defendants to prove what the difference is it means that just as a practical matter there will relief for violations of the public trial right that happened to be coupled with the additional injury of defense counsel who don't know to object like to reserve the balance of my time thank you counsel ceramics mr chief justice and may please the court the claim before the court is one of ineffective assistance of counsel and requiring individual eyes prejudice to be proven for claims like that claims like the petitioners ensures that a criminal judgment is not vacated unless a violation of the right to effective counsel is complete it tells us whether the defendant's own conviction resulted from a breakdown in the adversarial process or was likely the right outcome and it keeps us from up setting judgments based on attorney herbs that had no impact on the verdict supposing the suggestion had been made and the first opportunity assuming the judge's decision was improper yes that that's what would happen in massachusetts but that that wasn't the case here and it's important to recognize the distinction between those two situations because there are both doctrinal and practical considerations there the doctrinal ones are that now we're looking at a different type of claim we're not looking at a public trial claim we're looking at an ineffectiveness claim and there there must be prejudice in order for that violation to be complete gonzales lopez tells us not only that the focus of the prejudice inquiry is different than the focus that it would be if we were looking at a violation of the right to a public trial strickland tells us it unless the fact that it's a structural error  is fatal then in this situation and in the hypothetical justice ginsburg provided wouldn't it be open to you to prove that it was harmless error beyond a reasonable doubt that's that's correct if if it was not a structural error but if it's if it's a structural error then then the government would be precluded from making that well and what and what is their structural error in this case in your view under the hypothetical where there was an improper closure of the trial we respect the fact that or i should say of jury selection we respect the fact that the court has said that public trial errors are structural and that the court has said that the closure of jury selection is a public trial error however not all structural errors should be treated the same not all public trial or should be treated the same they're very different from one another there could be a closure to who are under justice ginsburg's hypothetical there's an objection jackson's overruled is wrongly overruled and you presley did not address remedies so if one takes presley combine with statements about a public trial error being a structural error takes them together then then yes but the fact is the court has never expressed they said that it is never said that a presley error is a structural error and even if it were to be a structural error that doesn't mean that it should be treated like every other structural error even like every other public trial or as i was saying the courtroom closure could be for a few minutes during is that what your line excuse me i mean do you suppose that the structural error were excluding african americans from the jury or women from the jury because that's the year they select a different jury all white men now we have no way of knowing whether that there made a real difference in that case we don't know so it's a structural error now are you saying in such a circumstance where the lawyer failed to object it cetera therefore strickland therefore inadequate assistance of counsel that that isn't the end of it that there was an all white male jury isn't that the end of it even though we don't know if there was prejudice in the sense that the jury would have decided differently is that your position it is your position that prejudice would need to be proven you can't are right you can't you can't prove that the jury would have come out differently so i'd say at least in my mind if your point is that even if suppose they had a trial by inquisition i mean you know i can imagine even the most fantastic examples where you don't know really the result would have been every different if you had the most perfect jury right now you're saying even there somebody has to prove that it really made a difference that's what structural error is really about that kind of case where you can't prove it because it was a basically unfair prosy well the court hasn't said that you know i don't alter authorities say i'm asking my question and my question i thought until i'm getting this answer that of course in some instances you say it was such an unfair trial and you show inadequate assistance of counsel and that's the end of it you presume the prejudice and i was going to ask you how you draw the line  it may be an unfair trial with respect to the right that's claimed at issue but where the right that's claimed is one of ineffective assistance strickland tells us that that can that deals with  moment i want to know how you think in this case we should draw the line between those structural errors which are absolutely agreed choose and it is plain that the defendant did not get a fair trial although we cannot prove one way or the other that it would have made a difference to the out i would have thought that you would have said of course in such a case in adequate assistance of counsel for not raising that error leads to a new trial we presume prejudice that if you're not going to say that then i will withdraw all my questions and keep quiet i will say that the court's approach in chronic made sense that they're what the court said was prejudice would be presumed where it's highly likely that there was in fact prejudice and not just any type of prejudice but prejudice in the sense of a breakdown in the adversary process in other words prejudice to the right it is shu because of circumstances on the order of a complete denial of counsel and i say that  because by focusing on the likelihood of a high likelihood we are not saying that something actually existed merely because we don't know whether it existed we are saying that it existed when we can be very confident that it did we have further said that a conflict of interest actual conflict of interest you can presume prejudice would an absolute closure improper closure of a courtroom for no reason we presume prejudice there or would you require the proof of actual prejudice the way you're advocating here yes we would say that actual prejudice needs to be shown that a presumption is inappropriate that a presumption is appropriate in those situations where again if it can be said with confidence and this isn't just the approach taken in in chronic chronic cited cases dealing with a variety of errors because it's one thing to say that because something is difficult to show we are going to for example relieve the government strong wouldn't it be logical to say that there are that structural errors on the reliability of a trial are affected by the quality of the violation a partial closure improper as it may be is not the same as a total  situation the reliability of the trial is put into question in a such a fundamental way that prejudice can be preserved otherwise we're never going to make any meaning of structural error but but the reliability that stricklin and chronic talk about is where the result of the trial is rendered unreliable because of a breakdown in the adversary process so it focuses in on the heart of the right issue the petitioner here could have pursued a standalone public trial claim and then we would be talking about the rights underlying that so current kimelman versus morrison says it's important to look at the values underlying the right that has been asserted but that but the petitioner didn't do that he didn't do it in the ass tracy and he didn't do it here so instead the focus should be on the values underlying the the right to is of counsel and whether there's been a breakdown in the adversary process that's the specific aspect of fairness of a fair trial that strickland says the counsel clause is about how the petitioner pursued a standalone claim for the right for violation of the public trial right even though it was forfeited in massachusetts it would have gotten review because all claims are reviewed in massachusetts just under a different standard and in fact if looking at the way that massachusetts has treated those standalone claims versus ineffectiveness claims it's clear that massachusetts understands what this court said in kimelman because in one case the case called celeste or the commonwealth tracy was applying its substantial likelihood of a miscarriage of justice standard to an ineffective his claim based on this kind of a closure and if and it cited it quoted strickland but in another case where it was focusing on the underlying right it talked about public trial theory even as it applied the same standard to review mr mr rabbit i don't know maybe this is a simple minded way to look at things but i've always thought strickland it's about the fairness and the reliability of the trial process and that's pretty important thing to be concerned about and we have said as part of strickland that you have to show prejudice because we're not really concerned about lawyers however bad they baby who do things that just don't affect the reliability of the trial but here with respect to these structural errors what we've said again and again and again is we actually just don't know so the in any particular case whether the commission of this error affected the outcome so what you are suggesting to us is the defendant has to come in and prove as part of strickland which as i said is integral to ensuring the fairness and reliability of the process has to come in and prove us part of that something that we have said time and again is unprovable and that just seems like that's not something that a legal system should do you have to prove something that we've admitted is unprovable well when the court said that it was difficult to prove prejudice from this kind of our it wasn't talking about the reasonable probability standard of strickland that's one of the benefits to the standard it was specifically designed to account for and does account for situations where there might be a breakdown in the process there might be an unreliable result and yet it's too hard to prove it can't be proven by a preponderance of the evidence and so the standard was was a middle of the road standard deliberately and it's flexible and it's strickland says take into account all the circumstances take into account the totality of the evidence well but then what you're asking us to do is you're asking us to apply strickland such a way that we're saying this terrible attorney error took place because we're assuming that and we think it might could have affected the outcome of the trial but because of the kind of error it is as we've one hundred times we just are not able to say that with any certainty so we'll give the benefit of the doubt to the government now that sounds like what it's saying is exactly the kind of idea that relief would be awarded where prejudice is merely conceivable that stricklin reject it and it makes sense because to say that something because something is difficult to show it must have existed one doesn't follow from the other and it would in a would allow for relief to be granted in a wide range of situations where in fact in reality there was no prejudice and i just i'm sorry to keep you about this but it just about a reasonable probability standard it hasn't said that it it a reasonable probability can't be shown and and as far as proving it there are analogous situations where what we see is that the party shows a connection between the error so let's say here the closure the spectators that are excluded and the events that occurred during that time  taking into account what's said in the trial transcripts and the connection between those things and the issues a trial giving particular attention to anything that went wrong and also giving attention to as i say to likelihood to probability and so the for example the solicitor general cites the mckernan third circuit case that was handed down this year which involved a biased judge and that's that's the approach that the court took there it was very simple it was to look at what happened what went wrong and what the connection was between that and the error and then the probability that it had an effect on the drive and some tell you sometimes that's the best that we can do but it's because we are inherently considering what would have happened in a different situation that's the case in every strickland situation we're always considering what would have happened well let's say i mean the argument on the other side is that one of the most important things about the trial is to have the mother with the young offender did that cause prejudice or not that the mother wasn't there they just looked and there is a guy alone who's accused of killing a fifteen year old as opposed to troubled youth with his mother holding his hand i mean you know all these things are important so are they right that that prejudiced the trial or not they are right that that was unfortunate and it should have happened as to whether it had an effect on the judgment you know that's something different well how do you prove it well again the the defendant can aim to show connection between the spectators and what happened at the trial so for example let's say the judge made certain comments that were offensive about a particular group and members of that group were excluded from jury selection and that's a different case i'm actually i'm asking about this case the defendant probably would have had a great difficulty showing it because it was so likely to have occurred but that doesn't mean that there was a breakdown in the system that means that the prejudice that stricklin and chronic called was just highly unlikely to have been present and why do i say that because the courtroom was filled with as many as ninety members of the public in the former prospect of jurors who were able to observe the proceedings and because there was no evidence taken and there was no argumentation on the merits and because once the courtroom once the jury selection process was finished the courtroom was opened up and there was no issue raised about the rest of the of the jury selection proceeding or the jury that was chosen it was only the court enclosure and then when it was opened up the jurors heard evidence of a confession and they heard other evidence of biological evidence and ballistics evidence so yes here it was just highly unlikely that there was in fact prejudice just on a final note it's it's been said that that structural errors are the greatest type of errors and this court in because all this lopez redirected things and clarified that structural errors are in fact different and they've been rendered structural given that classification for different reasons and it's important to focus on those differences as strickland says it's important to focus on the different circumstances in a given case and if there are no further questions from the court thank you council very much mr chief justice and may it please the court i'd like to begin where my co counsel just left off here with the idea that anytime a structural error occurs it leads to fundamental unfairness and unreliability in the outcome of the trial structural errors implicate fairness in a way that's broader than the interest that's protected by the sixth amendment right to the effective assistance of counsel under strickland we're focused on whether councils there are undermines confidence in the bird in the verdict you're asking whether there was such a breakdown in the adversarial process that we can no longer rely on what the jury did and the court in gonzalez lopez pushed back on the idea that all structural errors are necessarily the type of error that undermined confidence in the reliability of the trial and i can give three examples of scenarios where structural errors occur where the courts have concluded that those errors do not undermine the reliability of the trial outcomes batson errors right to counsel of choice and biased trial judge in the context of batson errors which you were talking a little bit about before we've cited some cases in page eighteen in one thousand of our brief where courts of appeals have looked at cases where batson errors occurred and said ok there was a batson error we consider that a structural error but it didn't undermine our confidence in the outcome of this trial there was overwhelming evidence of guilt there's no reason to believe that any juror that was actually sitting on the jury had any kind of a bias and those decisions are consistent with this court's opinion allen versus hardy which is the case that holds that babson is not retroactive and that case  f an awful lot of exactly what's worrying me about the nerves that you know we can think of the hosts or walter raleigh is in the star chamber you know i mean you know the government's position is w the government's position is that even though there is a serious structural or really serious the all white jury the star chamber at sucker even then in the lawyer didn't object even then the person doesn't automatically get a new trial for the truth of the matter is we don't know what would have happened in the jury room we can't say and if what we're supposed to do is weigh the evidence i guess and you're having trial by appellate judge and so do you do we get into the up is that what you want that in each case a matter how egregious sort of the structural error which may or may not affect the jury we don't know that there is no new trial  judges are supposed to say whether or not there really would have been or likely would have been an impact on this case that strikes me as a little i mean i would like to hear your answer because it strikes right it's our position just as prior that in the case of structural errors you still have to show prejudice it doesn't matter what the structural error is the strickland test says that we're looking under the second prong to see if this error had an effect on the outcome of the trial maybe there is a reasonable probability that it did in which case the standard is satisfied and if there is not then the standard is not satisfied we don't run the trial rerun the trial just because we don't know if there is t between the examples that you gave where it would appear that the issue would be a question of harmless error and the situation here where the question is whether there's a constitutional error at all well so i  think that this case has been litigated on the assumption that there has been a constitutional error as a sixth amendment violation of the public don't but that's not the error that's that is before us the error the alleged error this before us is a violation of our right to counsel i must have misunderstood the question but it was probably not very clear the air or what we're being asked to address is the right to counsel on my right that's correct and there is no violation of the right to counsel based purely on decision performance isn't that right correct so there has to be that the prejudice pong has to be satisfied yes and i thought your understanding of bats and was that you were saying when an attorney is deficient as respects to a batson claim there too would be if you know if there's one you didn't object it's being done and that's the underlying violation of the ineffective assistance for and you would say the same rule would go and you have to prove prejudice correct even though we've said over and over that you can't prove prejudice and i think on that point justice kagan the idea that you can't prove prejudice the court has said it's difficult to do that may be true as a general matter it's not true across the board we've cited cases in our brief with respect to the biased trial judge structural error for example where courts have done a case by case inquiry and said ok in this case the bias of the trial judge there is a reasonable probability it would have affected the trial outcome in this case there is no reasonable probability that it would have and it's not the defect the burden of proof in the strict one context is on the defendant you know i'm not saying that there aren't cases where you can have a sort of intuition as to whether it did or not but one of the things that have made us put these particular rights in this box called structural is that we say you know not withstanding that you can pick out a case here and there and say ok i kind of know in general these are it is so speculative as to whether this fundamental defect in the trial process caused error that we're going to to to presume it and said justice kagan is the rationale for for not letting the government prove harmless error if the objection is preserved and i think a big part of that is that these interests a lot of these interests are ones that would not adequately be protected if that rule was not dispensed with in the harmless error context for preserved objections i think the most stark example is a mccaskill error the right to represent yourself where if we didn't exempt that type of an error from harmless error analysis it would always be harmless because the judge could just deny the motion and then say well there was no prejudice because you would you would been worse off representing yourself in the strickland prejudice the tables are turned and the defendant has the burden to prove that there was some sort of there was a reasonable probability of a different outcome at trial had this error been objected to and been fixed and there's there's just no reasonable probability of that in this particular case i don't think we've ever really talked about burdens when we label things structural errors you know we don't say you haven't met your burden but what we've said is that the whole bergen analysis kind of goes out the window because this is so hard to prove because it's so speculative so it's really not a question of who has the burden it's just never been  way we've addressed the structural error category i think in strickland it's clear that the proving each problem of strickland deficient performance and prejudice is on the defendant and so i guess it is our position that even though it's difficult to prove i mean the test is not meant to be easy we're looking to identify cases where the error the attorney's error well it's not meant to be easy but it's meant to be possible and what we've said in our structural error cases is that it's not possible in a very very large proportion of them well i guess i'd like to push back on that a little bit though and i mean i could give an example in the public trial context in specific where you know a lot of times when this particular right  issue or is violated it's with respect to the courtroom closure for one witness say an undercover police officer a rape victim a child or something like that and if you know if the courtroom is closed for that witness's testimony and there's no objection  and on appeal the court of appeals says oh well that was that courtroom closure was unjustified under the wall or factors and if that witness didn't testify or wouldn't have testified to those things but for the courtroom closure you could absolutely evaluate that and see if there was a reasonable likelihood the trial would have come out differently had that witness not testified so i don't think it's the case that it may be a general rule across the board that structural errors are difficult to prove but i don't think it's true in every case is the difficulty in any particular case something that can be weighed in determining whether the defendant has carried his burden of showing prejudice i mean there's some of these you see because we have a record in some dance of cases where you could be that's where i do think could be almost impossible to put the burden on showing prejudice on the other hand denial of counsel of choice i would think would be pretty easy to show whether there's prejudice or not is that something a judge reviewing whether there's been an adequate showing you prejudice can take into account all or nothing you know i think so in strickland i think it's page four fifty nine of strickland the court describes the test for how to do it case by case prejudice inquiry under strickland and the court looks to was the evidence against this defendant overwhelming was the error that occurred pervasive and that it affected everything that happened in the trial or was it just limited to one particular witness or one particular thing so i think you know under strickland the test is flexible enough that courts could take into consideration what type of an error it was here how to how do we go about looking at the this is is that presented in this case well i think this case has been litigated on the assumption that there was a sixth amendment violation here if this was our own case when there is a triviality exception to the six and then the public trial right that's recognized in the federal courts we've actually taken the position in in various cases that a courtroom closure during voir dire is not six and then that violation because it doesn't undermine the purposes of the public trial right but i think this court comes this case comes to the court on the assumption there was a six and then that violation but but i think the court can take into account that it was close for only a limited amount of time in determining prejudice under stric you just a few brief points of first justice kennedy to address what you just hypothetical and line of questions that you just raised the question there i think is whether a public trial violation happened at all and although there may be difficult cases where it's unclear whether a closure of a particular lang through the exclusion of some and not all actually amounts to a public trial violation after presently against georgia there is no question what about what about counsel's argument we just heard a moment ago that there is a triviality exception might this case qualify for that so one we don't disagree that there is a triviality exception it certainly would not qualify after presently against george that the triviality question comes in at the threshold issue of whether there has been a violation of the public trial right at all there's no question of this court's precedents and certainly the way that the lower courts uniformly have treated public trial errors after waller that when it is determined that  the six moment right to public trial has been violated is structural and so triviality comes in to whether there was in fact a violation not whether assuming there is one it's structural if it happened i understand why should we assume there was one here one wasn't well i don't think the court needs to look any further than present against george or present against george it involved precisely the same circumstances here the court room was overcrowded the judge closed the courtroom to the public and this court said in a seven answered by waller itself which said that it's the proceeding itself that's closed that has to be redone and so the upshot of a courtroom closure during an entire during impalement is that the jury impaneled and has to happen again the idea is that a jury impaneled behind closed doors is not a fair jury and so it's the same sort of analysis that might arise in a baton case the jury not being fairly constituted the trial has to take what about using if we're going to sting wish among substantial among structural errors taking the standard of law and saying those that seriously affect the fairness integrity or public reputation of judicial proceedings if the procedural if the structurally or rises to meet that standard then then you don't have to show prejudice but if it doesn't then you better now that we harmonize the player and this proceeding which can come up in  the yes so i wanted to say a couple of things that i don't think that there's a basis in this court structural air president no that is true but if you're asking us you you say no none just take structural errors you're category and period and that's it right now but they want they were there and they want to go to the other extreme basically but if we're cutting this child into what about that as a standard i guess it's at least as we understand what this court has said about structural errors which is that they undermine and i should say in particular the public trial right which goes to the very perception of the judiciary by the public and undermines in our view certainly in this court said in richmond newspapers and press enterprises that courtroom closures and those cases by the way well that's the third prong you're not answering justice prize question with respect that gets you past the third prong but it doesn't get you home in an error case you still have to meet the fourth prong that's true i  to be clear though i mean i think that would be true in a trial or a context as well that's just to say that the right the two tests don't overlap and so yes it is true that sometimes relief will be available on collateral review under strickland even where it is not available on direct review under a plain error standard but i think that doesn't seem highly unlikely a structural error we think is important but it isn't automatically a winner every single time if you don't preserve mansur that's right your honor i don't think there's anything particularly unseemly about that because again that is exactly how the court approaches the exact same question in the context of trial lawyers it may be that trial error affects substantial rights and yet it gets filtered out at four of the test thank you and so that could be raised on a strickland basis and counsel could obtain the defendant could obtain relief in that context thank you counsel cases submitted