may please the court multiple paths lead to haiti sirleaf for petitioners nancy pena and try to see what the clearest path is that their public trial rights were violated and there's no procedural default because the requirement to object is not a firmly established rule i represent states clearly establishes that there is no need that there is no procedural bar that is that objection is irrelevant he was one hundred twenty to fifty four deewar on the only law clearly established by the supreme court so it seems to me that when you begin by saying well this this procedural rule isn't properly established got the shoe on the wrong foot where does the supreme court clearly esta can't have a contemporaneous objection to respond to that your honor first of all twenty two fifty four d one does not apply to the question of the procedural adequacy of the requirement just drank or held otherwise  glebe against frost so right i'm familiar with that the decision on a bit but we have against ross was a case that dealt with the question what is a structural error and what isn't and the supreme court held that on on that procedural question twenty two fifty four d one says that only the decision of the supreme court of the united states clearly estab right cannot be waived simply by not objecting but this court not even reached that because not only is what our project ok what decision of the supreme court do i go to read that contemporaneous objection rule or with public trial issues you know one of the really has to be clearly established and made concrete you know the definition of waiver in johnson against serbs does not resolve all issues didn't abolish the contemporaneous objection doctrine globally is there any such case you know i looked for it i couldn't find it if all you have for your best case is johnson against europe sgt i think you window with the with the right to a speedy trial that federal trial rights cannot be waived through silence and that's really what's happening here it's waiver the result was constrained court did not find it there was no contemporaneous objection and that's there were s if the judge had said that the any part of the audience that wasn't you know prospective jurors would be put in another shows i believe that there was eighty three or are around eighty potential jurors brought into the courtroom and once somewhere sat into the jury box there was two pews available in the back of the courtroom so even if the judge had gone through the wall or test and try to get a reasonable alternatives there would have been room for people to come in but this court not even reached that because the violation occurs at the moment the judge orders the public out without justifying that exclusion and this court can reach the constitutional violation but what i just i'm just  dire and the judge never reiterated his exclusion orders during the year and the judge were the judge never reiterated his exclusion orders during voir dire he actually said that if you notice people come in he may have addressed it the court discussed those facts but claim in both cases we do have a procedural default here and the only question is whether the court's resolution of that constitutional question about whether forfeiture doct is unconstitutional in this context and there must be a knowing and voluntary relinquishment waiver on the record of the public trial right and that's an issue that we give  wisconsin as in other jurisdictions no end seeing we're asking for exceptions to that doctrine for this particular constitutional right and that was the question before the court and the court said no we're going to apply the fo because the lack of a record before the court here there was a record granted it was made post conviction by only one of the defendants but there was a record so the question was framed whether there should be an exception to the forfeiture doctrine for the public trial right issue and the court said no we're not going to recognise an exception here for these  not treated as an exception forfeiture applies to all kinds of constitutional issues in wisconsin just as it does another jurisdiction except one thousand trial rights are accepted and get the more robust protection of the waiver even if this court does look at it as an exception it's still was not clear whether there was an exception not and if there's not a firmly established rule if the forfeiture rule is firmly established and regular only applied and the question is whether there's three supreme court cases that firmly established that the second thing that we know is it's a right primarily for the benefit of the accused and his personal to them and again this is a supreme court case again a county versus day pass wall so even though johnson versus herb which is a case that deals with what it takes to do waiver it's not a it's not a public trial case and it's now that necessarily forfeiture case but it talks about  two governs what it takes to waive a fundamental constitutional right that's personal to a defendant and that case says it indulges every reasonable presumption against a waiver of a known right and it will not presume acquiesce loss of such a right and in a later supreme court cases carnally the court said that a waiver cannot be based on a silent record because anything less is not waiver and so that's why we do thin the contemporaneous objection rule for all constitutional issues i think for any constitutional so that is fundamentally not what we have understood to do those those any circuit jonson against constitutional issues not on these facts and not on this particular public trial issue it has never said one way or the other whether there is or contemporaneous objection rule or states can have one for the public trial i can easily imagine saying no you can't enforce such a rule or because the public as well as the defendant is also a beneficiary and the public's not well represented in this process i can easily understand that but so far as i can see it hasn't said that yet while i get i think chason these are does speak to that because it talks about what it takes to waive a fundamental constitutional right that's personal to the defendant and it can't be silence and that's exactly what happened here think it's true ok i see my don't think there is a right to a public trial because in most in federal want to and they also have access to the proceedings through the press that can attend and report on it in they have they can attend if they want a person that's the right it doesn't have to be on television can attend if they want to unless they happen to be may please the court system attorney general dan albright appears on behalf of the respondents defense attorneys need never object to the public trial right and in fact it would be foolish for them to do so because it would you get when full automatic reversal even when you don't raise the issue for four years as mr seaton did or one year as ms pino did in fact justice powell in the very first sentence of while every georgia state the issue was whether hearing too much motion suppression motion may be close to the public over the objection of the defendant consistent with the sixth and fourteenth amendment public trial right problem was when defense counsel objected the judge did not consider reasonable alternatives to closure and the state clout court record was abundantly clear that there were extra seats in the court room where the public could have been seated and so what this really comes down to is the public trial right embodies for color values that wallaby georgia talks about to ensure a fair trial to remind the prosecutor and the judge of their responsibilities to the defendant to encourage as witnessed courage witnesses to come forward and to discourage perjury none of those core values where implicated in this case that and and so when and it defense attorney doesn't object whether that be for strategic reasons or due to negligence if those core values are not implicated there still is no public trial violation and there are certainly either deficient performance or resulting prejudice there is clearly what state there is no clearly established supreme court precedent saying that the absence of an objection is irrelevant in fact the supreme court precedent especially cases like levine v united states followed by cases like perhaps state companies emphasize the need for an objection to bring these matters to trial judge's attention so it can be corrected cleared up quickly you know ed counsel that both attorneys go in length discuss how levine is not on point because it was a fifth amendment due process however both the fifth amendment due process clause and the six men a public trial of cause are ultimately concerned with the fairness of the trial the reliability of the proceedings as is the sixth amendment right to effective counsel so those cases if so if levine is not on point it is certainly a close cousin to the public trial cases such as waller and such as presley and therefore we submit requires a contemporaneous objection to trigger the wall or inquiry or at least a reasonable state court like the wisconsin supreme court could hold and i would suggest that the thoroughness of the analysis of the scott supreme court painstaking review of these issues and the thorough review of that decision by district judge priest spock shows that is there a transcript or recording of the i believe there is a transcript in the record of the broader if not the entire volunteer part of it i don't believe that there is a recording of it and but it's it's clear what and what you know we have two different years here in different things happen in each one but you know the fact is the constant in both these are said there was no objection to whatever occurred even though it is clear that both attorneys were aware that the judge made the statement to exclude people whoever was in there to start clear who was in there from the public to exclude people moreover defense attorney strategically told the judge a week before in pintos case that he agreed with the judge that the pop the press should not be present in the courtroom during voir dire because of the highly sensitive nature of this rather peculiar case excluded if the public is well and i guess that begs the question of what can strategically be be done here can the attorneys and the judge  and obviously the press have a separate first amendment right of access this is not a first amendment case the print there's no issue here of the press complaining about being denied access or and certainly neither of the attorneys invoke the fifth the first amendment in this case but i agree that that's problematic excluding one but not the other where where you have room but again i  believe that clearly established there is it i get it in fact i think the cut in there is not only they have failed to show clearly established in court precedent that allows for automatic reversal without an objection in fact i would say that while every george's clearly establishes the opposite that there has to be an objection and when there is an objection the judge then considers alternative to closure and then only that would you get reversal if there is an error and even then the remedy for that era must be appropriate to the violation it should not be a windfall automatic reversal years down the road for something that was in consequential went to not adversely affect either defend either especially because this court session in one versus brierly had already held that it's unconstitutional to have to for a defendant to lose the right to a public trial simply but object what is the what is the defense lawyers don't want public admitted maybe these are unpopular defendants they don't want people coming in and making faces and so on all the medication this is a right that must be part and while that may well it may be the case that hundred million people so there is some sense that there are competing considerations when you talk about a public trial here i see my time just to answer your question the importance of the public trials is just because sunlight is the best preventative medicine and it's about sunlight is the best preventative medicine and it's important to have a courtroom to the public to come in whenever they want but that was ok well thank you very much