my name is neil fox and i represent the appellant's mr maria of when the government discriminates against a potential juror based upon ethnicity this is an issue of significant public importance that needs to be discussed and resolved in open court and not in the back room well just a minute to make this challenge before filing this appeal no and why should i hear it a we get that that's your position right so what's the difference between having a a batson challenge just just at sidebar and having it in a side room as long as the microphones on and they're koreans may well choose to differences off it's bad to do with that sidebar to begin with it is something that needs to be discussed in open court ok so you're talking to three people who've been tracking just and i'm just imagining the logistics of how you do this u s the jurors to step out yes there's security problems right and the whole part is not only security problems but in it i am troubled that it could be north to the detriment of defense because the point of unvarnished truth and if we say ladies and gentlemen i'm going to ask you to step out and then the marshals have to move people around and it's going to take longer well that may be the case and it might be a hundred people well in this case i don't think the jury pool was one hundred people but it's not a you're saying a public trial is one where the jurors are gone all the prospective jurors are gone i suspect that's what you're saying well but you're not really saying everybody including the prospective jurors ought to hear all of this no but the public is saying that the public should create what's the difference and doing it in on a record is made it's publicized it can be said the record was made it's better than the sidebar because the record was made well the record actually your honor was not made the only reason we have a record is because of a conviction there wasn't even the notation in the docket that there had been the bason challenge and the strike sheet that has the names redactor saying what happened in this particular situation is that they went out rather than having a sidebar and they didn't make any there was in the record was sealed well all that but it exists right well it took some some doing to for many events one so here's the part i'm not sure exists there's a there's a sheet and you can this is truly an invitation to correct me the transcript like about two three pages of the transcript there was discussion about who's off who's on what what cause challenges there's a record there's a written record of that i don't think there's a written record there's a there's a strike there's a back and forth you know the back and forth is for the preemptory challenges public trial to having a member of the public at random or a few members of the public step into the room with that huddled group there's no reason for to go into the back room and i would submit there  really got a problem my understanding is your argument is that there's some benefit to airing this in front of the public right also from one logistical answer to your problem to my problems a logistical problem would be to to not exclude all members of the public from the back she's saying the reason they went in the back room is to keep the jury from hearing correct that's it so all you're saying is all they needed to do is make sure that the public could have gone in the back room to row them send the jury in the back room you're trying to accrue it seems to me is to not exclude the public from the background who seem to object i'm sorry i misunderstood what you were saying that happens a lot the in my line of work but go right ahead the had was to invite members of the public into the back room sure it would have been more convenient if they if the judge wanted to keep the jurors in their seats to go next door to another court room i mean the and obvious error well just been there maybe and there we're not even sure about that but even if there is what kay says you cannot do this as you do a sidebar well there are cases where the door's locked right of course that's not happening here well in essence it is what you're so so that's my point you're really arguing that every side bar would be a courtroom closure is that right not just a  if it's a trivial closure ok it's my position that this is not a trivial closure because this is every sidebar is a closure in your book if it deals with if it deals with non trivial matters if it's  issue of something of a critical juncture of the trial ok that's cannot and you're saying this is not trivial this is not trivial what's the what we're going to do what are we going to do in this particular matter we're go rule on whether we remind the prosecutor what are we going to do if i have a batson challenge and i make that decision and nobody hears how i make the decision the very fact that i do not allow the challenges and that are reminded of the prosecutor and that was done in the open court well it was not done in open court it was done in the back room saying the issue may be that your government's discrimination but it seems to me that when somebody makes an objection or wants to move a juror out challenge and another person makes an objection to that and face objection sustained the prosecutor has received their reprimand but they didn't receive the reprimand in a public setting and in just a minute the juror sat j that that's true so he didn't get what it wanted the issue though is when you know it when you when the arrest of the juror the jury comes to see it or the public and they saw that they wanted and this was their per cause objection wanting that person off of there and the judge overruled did not overrule it did not sustain it they let the jurors see that the prosecutor has been reprimanded but not in the public well just a minute the only thing you're saying is he didn't say what you are very much a discriminatory prosecutor well is that what you're wanting them to say in essence when you make a bas challenge you are calling out your opponents for engaging in discriminatory conduct and there is a public benefit for that to be taking place in open court the brianna waters case u s versus waters w case other the same district where the judge close the pretrial on the bus hearing at which a motion to dismiss based upon government misconduct was litigated the court found error it didn't reach the issue of structural error because it was reversing on other grounds but what the court said is that when we're dealing with issues of government misconduct this is a type of issue that has to be aired out in public counsel right there you said government misconduct and bats and speaks of intentional discrimination right we all know however many years it's been since batson that there's another problem that may be afoot here which is not in misconduct by the government i think what it is even if it's a bat intentional misconduct by the government and yet it was a i think a silly challenge i will say silly it's not it's not the silly challenge of forgive me of a silly response because what he was saying  this juror said was since you asked i'm summarizing but he basically said since you asked no i don't think this is a jury of this president's peers by the way i'm looking around and this is a caucasian jury and it's a hispanic defendant and i'm the only hispanic here and that was was was then the basis for the government's concern about this and you're right that's implicit bias that's different then intentional discrimination or conduct we don't have a right not as misconduct and the reason this matters is because you're talking about this the cleansing if you will the benefit of having this in public court if there's misconduct that's one thing what about if it's just an implicit bias the prosecutor doesn't even recognize in his or her self again we all have those we don't know in this case where there was implicit bias or intentional discrimination but when you have the government that engages in that i mean what engages in what indiscrimination either in english kind of implicit or explicit there is a public benefits where the government is making itself out and i'm not saying this facetiously but to be the protectors of law in order why is why is there an additional benefit to having that checked in open court as opposed to the judge saying no i'm not going to allow that so that the public my client's family whoever is present can see that in fact there is implicit b may not be entirely pure and i you know i don't know this process particular i don't know the history with with this prosecutor i'm not going to court but the court forgive me for nothing but your time is ticking the court did check this the court did recognize it as comes from the i guess this is the broad this is the one i don't quite see where you're going every one of the objections that are made during a trial unless we send the jury out every time and therefore make the jury mad and very mad at the defendant for having them there which is the worry that i have nothing sat as a trial judge every time they go out get mad you got to have a few sidebars and so therefore you have side bars in order to eliminate having all these times where you send the jury out of where you don't and every objection that you make can be grave and all you're saying is  babson challenges more grave than any other and a batson challenge being more grave than any other you can't even do it in a sidebar well if that's your argument no what i'm saying is it's an untenable part of jury selection but just a minute there doesn't matter there are lots of jury selection things that we do inside bars are you saying the batson challenge is the most important it is a core function of jury selection it is more important than  someone's hardship exemption but if i could just i mean what about then is prejudice well but this is not a know whether the jury is prejudiced or not whether they've been an accident like this or not whether their kids been an accident like your second because there are some things in the sidebar you don't even have a record well there ought to be a record well there is a and i do admit being of my age that there were times in practice when i was doing trials where we did things the way they should have been done with not in open court at sidebar in chambers that's changed but does it change ok well i'm asking you to to  recognize that there has been an evolution but the problem with the close courts are you just saying i'm old is that what you're good with no i just turned sixty so i guess i was being very very trying to understand what you're saying meet that burden if this court decides to reach the issue because it was forfeited plenary does apply without precedent federal precedent that says that the sixth amendment right even attaches in the scenario clear this is a very critical part of the trial why structural error if there's a mistake and we all have to be very concerned about implicit bias it's true batson in the majority spoke of intentional discrimination to be sure but but the concurrence didn't there's this is a real issue and we all know that sure i what i struggle with is there has been this evolution and we tried to be without aging myself too much i certainly remember and i think defense counsel right we've come a long way in terms of stressing stressing stressing the importance of open trial and technology has allowed us to do a better job of that but but it's tough with this whole jury panel there and i'm very concerned i haven't been shy about saying i'm very concerned about the logistics just what would be asking a trial court judge should do and the only thing i can come up with is in those courtrooms where you do have a side room available and of course a whole lot of them don't but this one happened to why not have members of the jury step in their eyes forgive me members of the public step in there if they choose to do so is that an option that would work well if the sixth amendment right attached it's operating under that presumption which i would note that weaver did recognize the importance of the right and that was structural but also noted that it's different right it was not only that there was no objection but also that the nature of the right itself often gives way to exactly what you're talking about which is the court's discretion under criminal r twenty four to control the courtroom and in this case and under iverson this court's precedent if you're going to when you're trying to determine whether the six remember right attaches in the first place you look to see whether the wall or factors are implicated and then if so you go on to the procedure weaver but that involved a government miss it involved a motion to dismiss an indictment based on government misconduct going to the heart of the government's case against the defendant in this type of situation batson as you suggested earlier is not about just a government misconduct first either party can raise about an challenge it's really a procedural check on the jersey equal protection right under the equal protection clause to not be excluded based on a protective factor so it does not go to witness testimony it does not go to the government's conduct in bringing its case against the defendant it just simply doesn't rise to that level and my position or it doesn't rise to the level forgive me you're missing me right there right what it doesn't it doesn't rise to the same level of government it's just that we all have these implicit biases and it's a very important issue it is why structural error attaches so what's the other part of the wall or test that you think is not right here are not implicated here i think three and four encouraging witnesses to come forward in discouraging perjury or not implicated at about and challenge i think number one and to argue i can't imagine a situation when one is not implicated ensuring a fair trial it seems to be at the heart of everything that happens and number two also will come up in most situations but three and four i don't see how they're implicated by the batson issue by about some challenge and i would say that because not all four of those factors are implicated here it is appropriate to leave this in the discretion of the district courts under criminal rule twenty four where they have and where the public trial right does often give way to these considerations of the court in this court has recognized and the supreme court has recognized this is something you know the public the right to public trial does not restrict a district court's ability to hold side bars and to manage a courtroom and i would argue that because you don't quite hit that threshold under the wall or factors whether the baton challenge issue falls under rule twenty four and the court's discretion and i also if there is a concern about having you know public access this court has also said that having a record made which it was in this case but it was sealed he said that what was known the own the thing that was actually sealed was supreme three challenge the four calls challenges were also on the record so it came up to us the way it came up to us and i think i'm not sure because i was mistaken about which i was looking at like right you just walk me through this and make sure i have this exactly right how would it have looked if i wouldn't been having been a member of the ninth circuit court of appeals and i walked into the courthouse and just try to look at the public record what  have seen you would have seen that the transcript so the transcript and it's and treat i think the back entry is number one twenty is treated just like any other transcript and that it said you know you have certain amount of time to ask for reactions at that point you know will be ninety days you can order it or you can go to the courtroom and ask for it or to the to the court to the clerk's office to ask for a copy of the transcript and i would have seen a sealed part of the record no you would not have the only thing that was sealed was the actual sheet that the attorneys wrote on the transcript of what occurred and the joneses for the primary challenges that's the only part of that proceeding that was actually sealed what the conversation that took place and the actual challenges themselves were all recorded on the record  publicized correct if someone walked into the courthouse right after this trial they would have seen no record of a bason challenge the docket entry for the strike sheet didn't appear on the public docket so it took some time to find out what docket entry there actually at reuters was made actually that was published that there was no record maybe not right at first but it was publicized well only after we appealed if so any member of the said i'm going to talk to the lawyers about this form and it would be then as if they all had it sorry and then they went into the room right and then they came back and the jury was seated but the public wouldn't have been aware that an objection had been made right there's no record made with regards to the wall or factors there is testimony in the sense in this proceeding because the judge has to make a determination that the race neutral explanation provided by the prosecutor is valid and that is based upon a credibility determination so in that sense this this qualifies as not testimony related to the facts of the case but it is testimony in that sense and it's different than just  a legal argument ok so that was what the challenge here was an object i'm going to paraphrase shamelessly that the prosecutor was concerned that this juror had expressed that this wasn't a juror three of the defendant's peers right and then the judge had to make a determination was that a valid race neutral explanation right which may or may not be a credibility determination it might be it the prosecutor legitimately has this view and then upon articulating it the judge says what the supreme court has said that step though is based upon quite often demeanor of the prosecutor yes if it's intentional discrimination but it may be of a sincerely held silly in a junction maybe and that would still justify  made here and we don't know in this case because or that piece of it is now that a record finally with regards to the vest or there was an exception an investor that talked about issues about government misconduct in this i concede may