case is united states versus petition the records and files conclusively show that mr lee was not entitled to relief indeed the district court itself and page nine of the appendix a footnote six noted that one could reasonably infer from the see that there was at least a courtroom closure for the individual board to hear and for an appellate criminal defense attorney structural error like a courtroom closure is the home run of  e of appellate defense practice it's similar to when the government has default or waiver it's terrific it's the first thing that the appellate criminal defense lawyer looks through the record for because you don't have to show prejudice it's so so we should acknowledge this is the festival down the middle that's so slow that you've got it it's the first i can say as an officer of the court you're on of this is the first thing we look for through all the transcripts because it is it's one that carries the least a burden for the appellate criminal defense attorney let's not say that we don't look for other trial lawyers but the first thing we're looking for is those most those structural iris in that category that entitle the defendant to automatic revers and so our view is that any minimally competent criminal appellate criminal defense attorney would look through this record see that there was at least a closure for the individual voir dear and say i've got to do a little investigation bonsa was most concerned about was the fact that the defend there did not bring up at the trial level his in effect did not bring up the public trial claim and then waited sort of strategically it can be waived that there's no objection it can with the defendant's consent but when we're dealing with that those sorts of structural errors what we're talking about here are the right to a jury trial at all the right oh well what we're what we're talking about is we don't know the facts then we don't know what the attorney thought we don't know whether we have we do know that the client did want to  have his family present for all of the proceedings in public we do know that and to the extent there are open issues on this matter the court should held a hearing remember the standard just to get the evidentiary hearing in a twenty two fifty two twenty two fifty five case is a relatively low threshold and the and the records got to conclusively show you will never ever get relief and there are just too many factual issues open  here for the judge to make that kind of conclusion without an evidentiary hearing on the question of individual or year i have been a district judge you don't go into the jury room you do it the bench so that no one in the courtroom can hear what's going on yes you might as well be in another room in fact i was called for jury duty in d c not long ago in your court and when i was called up to the bench they put on white noise so that no one could hear so that that  dialogue is not something that the people in the courtroom are going to hear whether it happens in the bench or whether it happens very well i would argue that there's an important distinction there the public can still view and observe what's going on at sidebar they may not necessarily need to hear what private information the juror may be sharing about a medical appointment or that sort of thing but they can observe the lawyers doing their jobs and asking questions the judge doing her job and asking questions maybe even the defendant asking questions of the juror so there is some transparency there that's very different from going behind closed doors and then coming out with a decision and i think what we have to remember here is that transparency and confidence go hand in hand we don't expect our institutions to be infallible but we do not accept decisions to come from behind closed doors i did not make  i don't think it occurred to them it's clearly didn't they didn't turn her brain cell about public trial right i think judge to she was point is given that fact saying that appellate counsel should have seen this issue so clearly doesn't really jive i think that was more its point well it clearly wasn't as obvious as it should have been because bill a council didn't do anything with the ignored it altogether there are others floating out there until presley came along to remind us of the importance of it you know i think in this case and probably in others lawyers and judges have tended to overlook it so then in view whether it's done whether there is done in side of the public behind closed doors at sidebar is really not relevant because since we're talking about structural error wherever it the public is excluded in any way the constitutional violation because that's right you are i mean that's the basic problem we have to uphold the sanctity of the importance of the public trial right and it's too easy to say well it's more convenient to take it back in the jury room for individual five year people more comfortable there it's more convenient wyler doesn't give us that choice isthmus must be an overriding interest in your view is there a difference between  public closure that occurs with the imprimatur of the judge as opposed to the intercession of say a court security officer no you are there's no logical or rational difference between the two scenarios it doesn't matter what the judge orders it whether judge knows about it if it occurs is when the problem occurs public trial right is violated if it's violated doesn't matter how it gets violated it either is or it isn't and in this case is sufficient evidence that it was in two ways one was the exclusion of particular members of the families of the two defendants by the marshals which the judge has claimed she doesn't know about at all and you know moving everything back into the jury room away from public view when when your adversary gets up i would presume that one of the things that he may talk about is the triviality exception well yes your honor of course he's relied a short period of time parade of minutes the judge was not on the bench at the time there were no proceedings going on so there was nothing for the public to view had they been let in our cases much different peers to have infected the entire first day of trial the entire wide your proceedings we have no evidence that anybody was allowed in the courtroom from the public or from the relatives as to mr lay the total tally by my count of somewhere at ten or eleven affidavit is that right here on i think we can reliably only say that in mr lee's for relatives they all said they weren't allowed and and mr pattens relative in his affidavit said he wasn't allowed and i don't i don't think we can ascribe any more sweeping statements to that but certainly those five people were you know claim that they were excluded but the unfortunate thing about this merit but instead we wind up with these cases where counsel is stuck with the record however a murky or incomplete it may be prepared by pro se defendants of course we have to be tolerant of those as the court has pointed out many times in the past and give them a great deal of leeway but it would be more helpful had we had a better record began with i was summoned to the court though that the the moving the jury out of public view and not jury the  proceedings out of public view into the jury room is by itself a very very serious problem i think you read nothing into in the counsel's failure to object and say that's a waiver we don't even know the counsel knew what was going on that they even recognize there is a public trial well i mean he is a member of the bar and he is expected to have a certain basic knowledge that what is expected of him and what his duties to his clients ar court does not take part of course for us well i think courtrooms follow you know they're going to let more people in anyway right well that's a there's not a constitutional right to over load the courtroom if a courtroom is full there's not a constitutional right to have family members come in at least at this stage of the proceeding well that's true you are but the record is confused about how many people were there in what capacity was the given time and so on there are ways to deal with that the word approached or the court could have brought fewer people or time the court knew or didn't know what is important what is critical is what how was the public trial right denied if what can we have a violation have to deal with it doesn't matter whether the court know about it or didn't know about it with otherwise we could expand this  there seems to be some difference whether the judge or not and now and now you're talking about the circumstances in which the judge you know well here we have legislation the court officers the marshals are deliberately excluding people from the world we're not letting the why shouldn't matter whether the judge ordered that or whether the judge knew or didn't know about they didn't let them in so there was no public trial going on and that's what we have to be concerned about if we can make this the judge did know about it rule work  make this palatable where's the public trial right going to go but i don't know where it's going to disappear thank you or well i for one last question so i presume that your point on judge roberts question about what happens when the judge comes out and he or the entire court is full of people and they're not aware of you know who's family who's not that even if that were a proper overriding interest the judge has to consider reasonable alternatives and so on none of that was done here it's the court just didn't have any interest in except taking the jury back in durham and getting them you know getting a nice comfortable caucus yes yes your honor may please the court donovan koch is on behalf of the united states i think the first issue the court should reach is whether presley is retroactive to cases on collateral review at all i acknowledge there is a not so robust circuit split on this the ninth circuit in withers appears to have assumed that it is retroactive as has the first circuit in buchi i think this circuit in ettl can has assumed that it is not retroactive if you read presley i'll concede at the outset it's an interesting opinion because the court decided it without argument and said this is well settled by our prior case law now what presley doesn't say is that the rule it's announcing which is that the sixth amendment right to a public trial exten toward year it doesn't say that it's retroactive to cases on collateral review it doesn't say that it's an old rule for teague purposes nothing like that and the reason i think that matters is when you look at the dissent you have the dissenters saying reasonable jurist can could and did disagree as to whether the right to a public trial extended a forty year before presley we know from teague that a rule is only an old rule if the result was dictated by precedents but a rule  under i think it's williams versus taylor the supreme court case from two thousand so as a rule is not dictated by precedent unless all reasonable jurists would have found it to be obvious well you have a dissent here saying here are some reasonable jurors who didn't think it was so obvious they cite a bunch of cases they say justice stevens is concurrence from press enterprise where he said today we're not deciding this it's amendment right to a public trial distance toward year so the government's contention is that it's not retroactive at all assuming that the court does determine that it's retroactive and i would urge you to even if even if it agrees with me that it's not retroactive i'd urge the court to reach the merits because of the circuits that we all know how interested the supreme court can get in that kind of things would be nice to have another basis for the opinion to stand if the court does agree and does not agree that it isn't retroactive so if it applies it retroactively then it patton we have to show two things they have to show that there was an underlying sixth amendment violation of the right to a public trial because we know from thomas  horn the two thousand and nine case from this court that unless there is an underlying violation counsel cannot have been ineffective for failing to raise it and then if there was a violation they have to show that no reasonable competent counsel would have failed to object in the circumstances and that's thomas v barner which i cited my brief here they cannot demonstrate that there was a violation because the court looked at this transcript and so absolutely no contemporaneous evidence that there was a closure at any time that's kind finding you know this either did happen or this didn't happen i mean it's seemed equivocal to it arguably i think you could possibly read it that way your honor here's one thing to keep in mind though if she was writing this six years after the fact seven years after the fact she looked at this and at one point i think pages thirteen and fourteen of mr lee's appendix she says there there is no evidence of closure occurred at all in the transcript and no evidence that if one did occur that i knew about it now i think would be disingenuous for the district judge to say there's no evidence i knew about it if she thought she ever knew about any closure in this case so that's how i get there now he they haven't really disputed that because i don't know what they can do about it they haven't disputed the district court's finding or at least characterization of the record that no closures apparent and if that if i want to i don't understand what you mean they haven't disputed they put in these that well they say that their family was out of the courtroom but that isn't that's not the same thing as saying and for the entirety of the voir dire process i was not permitted it right well two things about there are first of all is it taking all of that is true if it lets us let's say that happened first of all we don't know that the public generally was foreclosed from entering the portal courtroom for they've said that they were kept out of the entirety of right and i mean after and i assume that ok but for the more from as far as the court's concerned it never ordered a closure it never became aware of when if it was happening if it was being caused by marshall and sort of saying is this was a long time ago i don't remember this is my usual practice but you know that's a far cry from it didn't happen i mean we do that with this is all the time you do it right right but your honor and i appreciate that i guess the  distinction here though is there siri was that she had ordered the closure off the record there's certain recognize there's no record evidence that she ever word or closure so they theorize she ordered off the record she said i never do that so that forecloses  that and then she says as far as her knowledge of for a closure ever happening she said there's no record evidence i ever knew of it and i take that to mean so without her imprimatur or you see no structural  error i see no closure of any kind without in this court's post pressley cases unpublished seem to exit that but they cite i think peterson and other cases for the proposition the court has to now i appreciate they're citing a seventh circuit case for the proposition that the intent or inadvertence does not matter but that formulation of the issue all tracks back to the court it's the court's intent it's the court's inadvertence there is reasonable counsel even if you apply pressley retroactively i don't think we would have thought that a closure caused by something totally outside the court's knowledge would amount to a sixth amendment violation and in this case all that matters have the court saying i didn't know of a closure there's no evidence in the record that a closure occurred at that to me is critical is if you let a hearing in this case every case is going to look pretty much like this unless you have a quote where you say there's no other call you heard there is evidence have had access to because there's no allegation they even told their public counsel about this when you read the transcript there's no evidence of a closure when you win and that's what the district court did she relied in part on her recollection and again it's six seven now eight years after the fact i just not fair to us and the court to expect us to come forward with evidence that this to prove this negative and in this case you have in the record at one point in the transcript the district court seeing the courtroom getting full and saying we get everybody in that to me is not a closure that's an invitation no one says otherwise on top of that so they can make it past that first old hurdle but then you have the issue of closure is either partial or trivial and that's where we get to the breakdown the morning session analysis under triviality seems to be one two people i mean if the entirety of the exclusion were just the ten people reference in the two affidavits you'd have to admit that that's way beyond anything that's been discussed in any cases right because the cases are and probably rightfully so if one person gets excluded you can make the triviality argument when you're up to ten is it not make sense in that context where you know it's arthur there was no closure at all in the morning because mr patten saw more people in the courtroom than could be explained by the board here the district court noted that it footnote five of the patent order and they haven't been able to show that that was a clearly erroneous and you know interpretation of the evidence that they've offered so that's one problem then so for the afternoon session i agree with you assume no one's in the courtroom except  then what happens is would be proceeding have been meaningful to anyone sitting in the courtroom and we have a group gibbons in morale is saying this is essentially one big sidebar so even if you conducted it in front of the people in the courtroom they wouldn't hear what was rid themselves of another appellate issue because no one will ever be able to bring a public trial issue because everything's done at sidebar now so there's never going to be a problem well and i mean i don't know that we see i would see a court going down that road and courts traditionally have held the individual for years at least at sidebar if not you know often jury rooms to give the prospective jurors some privacy in confessing things like bias everything else are we are we live on so i think so i fraidy you know requires them to show even more i think it least for the principle that this doesn't violate the sixth amendment per se you know i think at least bansal can be cited for that and then gupta morale as givens all say it's trivial right well in owens you have the court actually knew the closure was happening for one thing you know some of it i have a hard time distinguishing from owens in the sense that owens rejects so many of the basic principles that this court's post pressley cases have already accepted i mean if the court's going to jettison those and go with owens there's not much i can say other than that involved a closure that the courtroom was aware of in here and it just didn't the other issue that they have to overcome is that they have to show even if there was a six minute violation so say there's a closure the court was aware of it or ordered it and it was total or at least meaningful they have to show that no reasonable counsel would have failed to object and let let's ask ourselves i mean i've identified a few strategies that it's clear from the record they had one is they say they told their own counsel hey our families are outside and both her counsel said in effect oh yeah the courtrooms to fall well if they thought the courtroom was too f antara which i think judge roth authored that the access to public transport transcripts afterwards can help preserve the right to a public trial you also have counsel who know that this proceeding is going to be taking place most of the afternoon out of sight of the public anyway they rationally could have concluded it would be worth the fight to kick up a fuss about getting the family in the courtroom for what amounted to seventy five minutes in the morning where they see jurors reading off numbers on questionnaires and finally i mean i think there was an issue that counsel are worried about which is they were worried about getting a jury that was not going to be biased against the defense based on race that's why we have like a batson challenge that was in the offing of and eventually abandon one of them you can say the counsel said to me oh this isn't that important because no testimony is going to take and we could agree or disagree with our assessment of that but can we really say no competent counsel would have thought so so for all of those reasons they can't demonstrate an underlying says minimum violation or that counsel was ineffective now on the prejudice issue i know they've sort of said well we assume prejudice on a structural or i'll concede there's a circuit split on that in your honor judge that she may read your dissent in career last october so i know i may be you know in the rough with you on this one but i think the supreme court in all of its post strickland cases has never said that we assume prejudice from a counsel error unless the counsel errors in the nature of there's a complete denial of counsel or a e versus or forest or peggy and also chronic in strickland those are all those cases that talk about this never once has straight as prejudiced since presumed just from an underlying stricklin there so hopefully the court doesn't have to reach that issue it agrees with me that there's no counsel in effect in this but if it does it should know there's a circuit split and in the withers case justice has just judge gregersen i clerked for him once i have elevated him in my own mind judge bigger some broke down t go down the split pretty well the last thing i would like to mention is as to this whole issue about a hearing please keep in mind this court's post pressley precedence the cases in the virgin islands i think did involve a hearing but that was because number one there was no way the court could have known i mean the court was off the bench so we didn't know what happened and number two most critically in my mind that was on a rule thirty three motion that was brought within weeks or two months of the trial here we have parties coming in you know six seven eight years later it just isn't fair to us to expect anything to come out of a hearing i don't know if we could find out who was in charge of the c s o's or the marshals in the courtroom that consideration in the sense that we just will not be able to read but you know their family can come forward and say you know yes we were denied entry that day but the court has said i don't recall this if it happened there's no evidence i ever knew of it what are we ever going to be able to read but that with six years later seven years later so that's all i mean by that i don't know that it's a dispositive consideration but it's one i think it's important when you're a court asking yourself should i conduct a hearing on this thank you very much during jury deliberations goes in without the judge's knowledge and says a jury there is some evidence that you didn't get that shows that this person is guilty and i think you really really should find guilty and tell us about this evidence just doesn't know about it years pass as a guilty verdict we never find out about it and then finally the clerk comes out and says years later i did this the judge said no knowledge couldn't control it but it happened and we would have serious misgivings about the outcome of that drive even though it happened such a long time ago and so while i think we can understand how difficult it might be for a judge to know what happened seven years ago and it might be difficult in a certain sense to keep a judge on the hook for all the things that happen in a courtroom when we're talking about something about the sanctity of a public trial right we can say that there's been a violation even if it was from courtroom staff that's i guess what i was trying to show you through that example but i'm hoping you imagine that there can be errors that would seriously undermine our confidence the fairness integrity of a trial where the judge has done essentially nothing wrong i hope of course was fired or in that sort of example of life or that i guess it's also true but the problem here is that that still creates there's still the public harm of having a guilty verdict that has this taint to it and what we can do is go back and have a hearing about it  just because something is difficult or it may be hard for a court doesn't mean that we shouldn't do it i guess the second point i wanted to make was about  is that he didn't complain a trial that was the fighting and there's no evidence of it here we have an affidavit that said i tried to raise this with my lawyer and he didn't do anything about it so the case is at least distinguishable in the sense that bonsa wanted to make sure these police the strategic use of the rules to sort of spring it on the court here we don't have that you can write an opinion that doesn't encourage that because here there would be a back yes we would be back here because we're very confident that the evidence will show that this was an effective there's no strategic reason this is a really serious violation it's the it's a home strategically into the you know what i'm not going to make it less obvious for whatever reason we don't play fast and loose with those sorts of rights you can't the supreme court has put the public trial right up there with the right to a jury trial the rectory prep resented by counsel and so there can't really be a strategic reason we would argue to waive that right or at least infer from counsel's conduct that they can waive it on behalf of the client when there's a guilty plea when you go pro se you go through all sorts of paperwork and waiver saying do you really want this do you really want this and then we allow the court to go forward so i think there's a difference here when even if you wanted to infer some sort of strategic purpose and we will take it under advisement thank you very much