good morning your honour's may please the court my name is corey parker and i represent the appellant daniel long and your honor the first certified issue before this court is whether the nonpublic hallway  nonpublic striking of another was trivial and constitutes an administrative jury matter that does not implicate the value served by the right to a public trial that you represent the defendant i did not know that his counsel tell the trial judge that they defend that had no objection to having this discussion in the hallway he did he did in the hallway stated that i've spoken with my client he had no objection the judge said that they would put that on the record and they did not put that on the record now that's that's the primary issues this was never put on the record the other major issue is that the second juror was excused without any discussion about waiver and even the district court if we get to the waiver issue even the district court determined that the record suggests that petitioner was never afforded an opportunity to object to the closure in regard to the striking of a second perspective juror i thought the i thought this lasted about two minutes in the hallway from both of these yours is that correct that is correct and wasn't the defendant represented by counsel in these discussions defendant was more like he was correct yes pres the united states supreme court acknowledged that the right to a public vardy or process is well established under both the first and sixth amendments the striking of a juror during a nonpublic hallway of our dear for whatever reason is a vital part of our dear it directly impacts the composition of the defendant's jury now i want to use a first year one it was the it was the first juror who said he had a private matter she wanted to discuss with the court in counsel right then and that's not all came about that is correct and and that happens all the time well i will distinguish we i can't tell you how many times i had sidebar conferences with prospective jurors outside the presence of the defendant and the public and i would agree with that your honor as it pertains to peremptory challenges as it pertains to no i'm talking about prompt talking about border jersey a judge i would tell the jurors when i was trying cases in state court and in district court if you if there's something confidential that you would prefer not to disclose to the public but your code yours let me know it will take your answer at the sidebar and i understand outside the presence and the defendant just like here i mean assuming this happened was advised even come up to the sidebar listen or counsel would report back or we'd have mikes going back and forward i just what it's very common i don't understand i think instructive case here is united states versus is ari's which is a case that this circuit took up where in that case the voir dire took place in the jury room the attorney was there as well in this district courts the district court rather stated that it's practice generally as you've said is specially  longer cases was to conduct hardship wardy or in the jury room but this court said looking at that case which is very similar to the case at hand remarkably similar that had any of the defendants asserted their rights to a public trial the reason stated the district court for holding most of the border and private would not be sufficient to avoid a determination that the defendant's right to a public trial were violated that was this court that the difference with that case is that in that case those defendants individually consented right on the record is jurors i understood that wanted to just share her reason that would ever it was this confidential matter does she prefer to keep confidential the issue though your honor was that was her answer i mean i m just going to the issue which goes to the heart of public trial is that a second juror in that same nonpublic paul was stricken without any discussion at all the judge simply said suicide bomb today i'm going excused this juror i think that he's having trouble here and that's the crux of the issue their reason we have public trials is to avoid potential corruption now assuming for the sake of argument that this judge was corrupt that this judge personally knew that juror that this judge had a bone to pick with the defendant what kind of precedent would we said if we just go into a back room and say i'm going to excuse this juror without ever addressing it subsequent on the record with the defendant with with any sort of discussion and so your honor i would distinguish the point that you're making and i understand your point i understand this does happen in routine practice but i would distinguish the administrative peremptory challenge discussions about evidentiary rulings exce versus the actual composition of a jury pressley versus georgia discusses the importance of the border process it goes directly to the lack of fairness and transparency that that a public trial is intended to prevent now there's this issue in a very thoughtful opinion i understood your honor and it seems as though the first of all duration you know is not dispositive of the issue there's case law that says that's the case and i understand your point but we're talking about questioning a jury's a jury's fitness to serve and that's the issue here and so if you look at three cases that the district court cited united states versus a vester brown versus powell and peterson versus williams in all those cases there was juror that was actually stricken one was a discussion about the safety of the jurors in the vestry case in the broad versus pal there was an exclusion of a single juror that was previously excuse that they didn't want to so they had a justifiable reason well you know here the what could be more fundamental to the role of a juror than being able to hear i mean that's essentially my counterargument to that your honor and it's a fair question is that these days or even at that time there was ample technology to record related to this juror's hearing for all we know the judge confused this juror with another juror we don't know because it was not in the record there was no discussion and that is what the public trial is about to flush these issues out holds the judge accountable it holds all the parties accountable and it goes to the four factors and waller versus georgia to ensure a fair trial to remind the prosecutor and judge of their responsibility to encourage witnesses to come forward to discourage perjury how can we do that if a judge can just simply excuse someone without consulting with anybody without it being in the view of the poso with little counsel and again the district court agreed that the record suggested that petitioner was never afforded the opportunity  to weigh in on this on whether or not he wanted to be there and i clarify that in the brief but it's clear that there was no indication that mike my client was told by his counsel that he had a right to attend the hallway for deer and per weaver  recent supreme court case they addressed that there has to be that the defendant has to be given instructed his right to a public trial unfortunately the video was not  admitted the district court would let that in but there was a fleeting moment there's no way that all of those discussions about public trial could have been imparted to my client before they went back to to discuss it so i'm don't really i'm asking this court to distinguish this case from the other cases and again to compare it to the says arced case which this circuit specifically ruled on where this court specifically said hey if these d we would have had a problem with this we would have a century reversed the district court's findings there were just hey it will just be easier nobody will be able to hear us if people don't get the idea that people are getting out it may keep it down to a reasonable number these are unjustifiable reasons articulated by the judge that this court agreed were unjustifiable reasons that this court agreed would have been reversed that the right to public trial would have been violated if these individual defendants didn't consent here in long in skase we don't have individual  we don't have mr longdon consent on the record and we have no articulation of why they went as it pertains to the second juror certainly understand the health issue the first year certainly understand in routine practice we don't want to embarrass that  that that that's understandable and conceded to some extent but the fact that a juror was excused is an issue that this court should address and the last point i'll make is the supreme court and this court has not made a determination as to whether or not an attorney can actually waive the right to public trial for their client and that's an interesting question that i hope this court will consider i mean you think you it please the court john sampson assistant attorney general for the respondent actually addressing to the points of counsel is just argued about first gets argued that the trial judge never struck the two jurors on the record that's incorrect excerpt a record two sixty six the judge this effectively indicated on the record in public court and the various jersey that were struck including juror would injure tipton counsel is also argued that there is no evidence in the record regarding the hearing difficulties of jerde tipton and it's not in the excerpts or record but it is in the district court record clerk's record sixteen exhibit forty one which is the trial transcript for the  dire pages twenty five to twenty seven page fifty four page seventy two to seventy three in page ninety six of exhibit forty one of the state court record the juror repeatedly indicated he was having difficulty hearing even when provided with the hearing device by the court and he repeatedly would either give an incorrect answer to a question not asked or he would flat out say i am having i cannot hear you  as to the issues before the court this court may affirm for any one of three reasons first mr long never invoked the right of a public trial similar to not invoking the rights up representation since he never invoked the right he cannot show a constitutional violation number two any closure in this case if one occurred was trivial in nature and three the state court decision in this case was a reasonable application right is a right that must be invoked in order to show constitutional violation and that case the court dealt with the due process public right attaching to a contempt proceedings but this court in rivera versus united states has recognized that the violation of article three right to an article three judge said that if the defendant doesn't invoke the right there is no constitution the court said the constitution analysis changes and the state's position is if you don't invoke the right if you don't say you're violating my right to an open trial and give the trial judge knopper to najee to open the courtroom then the same with a defendant sitting silent while he's represented by counsel throughout the trial cannot later say i was denied the ri clarify for me in when was the first and this issue was raised in the court it was raised on direct appeal in a pro se brief your honor and it was dismissed or denied on direct appeal by the court of appeals because the trial court record on appeal to that court did not prove that the hallway was closed to the public that's right that's right i forgot about that and that's that's our third point is that the state court it was no procedural bar here no your honor we're not asserting any type of procedural bar work what we're saying is that as a matter of federal law like a right to self representation like the right to confrontation like the fifth amendment right to an attorney when you're being interrogated by the police you the defendant must affirmatively invoke that right to take advantage of that right if the defendant does not invoke that right there is no violated amy tell him he had the right to say i want all this not exactly on what the court said is we're going to step in the hallway with the juror and when they got in the hallway the judge asked the attorney if this was ok that the defendant was not present there was never any discussion about the right to a public trial but there was a discussion about the conversation occurring in the hallway there was a discussion about the defendant not being present the defendant attorney on excerpts the record two sixty three said the defendant had no objection and the defendant confirmed that on the record in excerpts of record two fifty nine  is not at issue in this particular case because it was never the press is not complaining about it the public's not complaining about it the supreme court most recently in weaver versus massachusetts refer me that the right of that fend it comes under the sixth amendment and so if if the court had done this and a member of the press had object and said we want this then the issue would be before the court and i would point out that in press enterprise as well as in waller and presley those all dealt with cases where there was an objection to the close proceeding the supreme court has never said that a proceeding conducted in private without an objection is a constitutional violation so if this order look at the claims under twenty two fifty four d and even say that that the failure to invoke doesn't prevent him from proceeding with the claim it cannot be an unreasonable application of private the second i mean second your heart there is there is no consent to a private interrogation of the second your but your honor there was no private interrogation of the second juror all the judge commented on was a confirmation that the judge was going to strike that juror because he's having difficulty hearing all the conversations with the juror regarding this long and no that was your honor that's not in the record whether you knew or did not know there are the counsels and statement on the record at two sixty three of the excerpts a record is that mr long and had no concerns with the you're on a we don't know what counsel then told mr long and later so whether or not he did tell him about that second juror conversation we don't know but it's really more of a situation where it's a sidebar conference and in fact the pere challenges in this case were held at sidebar and were not a plea recorded in the end there's a goal in the transcript it says there peremptory is were not a plea recorded it's a similar type of situation the judge saying i'm going to strike juror tipped him because he's out of hearing this is very similar prop three and that is not a critical stage that would require that his friend it dick and again they the claim here is public trial not right to be president and i think we need to be specific on that because if you're looking at right to be president that's it slightly different analysis but when the claims of public trial the judge simply made a comment to counsel i'm going to strike him and then the judge actually on the record in the public courtroom said i'm striking  claim cannot be in unreason was occasional supreme court case law and in fact the supreme court has never dealt this particular situation other than in levine where the court said there is no constitutional heir and in weaver where the court's if you don't object and you don't raise in a direct appeal the only way you can get relief is through a claim of ineffective assistance of counsel so i would say applying those two cases weaver and levine the claim still fails ok trials the supreme court points out multiple times in that case that the defendant in that case raised the issue before the trial court or did not raise the issue before the trial court nor on direct appeal instead they were raised on collateral tax for the first time in this case my client did raise it on direct appeal and the president seems to indicate that as long as it's raised on direct appeal that the issue is preserved it doesn't have to be raised right there in the trial as some other types of arguments do contrary to the government's position this is a critical stage and it can be distinguished from a sidebar sidebars in view of the public that this side bar allows the public to at least see what's going on whereas in a back room in a hallway that's nonpublic  that has to be distinguished that has to be different than just simply being at a sidebar where the public is still in view of everything although there is no prior supreme court precedent i disagree with the government's assertion that this court can't find that there's that ruling in my client's favor would be contrary to supreme court precedent there's plenty of supreme court precedent that teaches that courtroom closure is to be avoided there's some circumstances when it's justified but in those cases it has to be properly articulated it has to be a valid reason that goes to the spirit of what's discussed in the wall or case the other cases cited by the government the levine case that's a criminal contempt case that doesn't apply to what's what's happening here there is not a lack of supreme court precedent here that that would deter this court from granting relief for my client thank you