court that mr john gay's family including his mother lucy john gay and his sister and john gay as well as his friends are in the courtroom today the district court's order is an ruled twenty two dollars that mr even after it ruled that mr john gay did not waive his public trial claim that it was that his independent claim was appropriately brought on direct appeal and that it was before the district court as a structural error and just two pages before that statement the court acknowledge that structural errors are not susceptible to harmless error prejudice we do help me on something is really bothering me here what is the force of the state supreme court the washington supreme court is clear that there was a closure through the trial court statements and the fact that the wars were actually close to mr  friends that's what language do you think makes it unreasonable language that the trial judge voice so where in the record that's right shows the closure that's right ok so like you kept saying not all of you are going to be able to fit in we'll see what the well ok i would like my arsenal says and all that but it never says in so many words no members of the public well ju six she says tomorrow when we have the jury selection there will not be room for all of you what we're going to do to allow people to observe is to check with the fire marshal and make sure that we can keep those st swinging doors open if we can do that then we will allow some people to observe right if they wish to do so those are the two remarks about what's likely to happen in the future keep going ok rd after the lunch recess the prosecutor informs the court that the family members are still waiting outside the court room and now that the newer members have been excused can they come into the court room you know i have no difficulty going with you to the point of inferring that it's fairly probable certainly possible that the public was excluded but because of the deference that we're required to give to the state court i don't know if i can say that they made an unreasonable determination and that's why i'm trying to find out well both because there are there are two right there are two decisions that the district court looked at because there are two different records one was before the washington supreme court on direct review which had the transcript before it the other was before the washington commission or supreme court commissioner which had the additional evidence to show that in fact the courtroom had been closed so if you succeed in showing that the state court decision or decisions were unreasonable determinations of our fact you still just got us to did novo review of this claim can you speak to why this closure if it existed was not trivial what i have st like to know and if i may if i may supplement that question specifically with respect to our i have a sister case are you familiar we're concerned because we're concerned because there were some people in the courtroom who they said look menacing and i think that people in the courtroom were family members of the defendant and so the judge the trial judge cleared the courtroom and for a very brief duration inquired of the jurors who said they were concerned whether they were afraid and then explain to the jurors that there were marshals or there were guards in the court room and then the jurors that they felt fine with that this was the three a minimum of a three hour closure where and i think in this case it absolutely is an incredible case for involving the values of the public trial right mr juror the kinds of questions that were going on at the time though about whether jurors had scheduling conflicts and the like is something that actually could have been done on paper and not even in live court well that is not the only thing that occurred in the three hours in the three hours i think the presumption is always of open court room and in this case it was particularly important because mr john gay was a twenty four year old immigrant from kenya who had never been exposed to the criminal justice system he was charged with st degree premeditated murder and it was important for him to have his supporters and his family in the courtroom and as this court said  united states or says ferrara it makes a difference when you have your community and supporters there i don't know that that matters much i mean the reason for this i have right is so that the defendant can be assured that it's not a court of star chamber type of proceeding in the public can be assured that it's not a court of star chamber proceeding that's one of the problem with family members is sometimes their perspective witnesses character or otherwise character alibi all kinds of witnessing by family members where other rules apply specifically so that they can be excluded i only have a minute left and i want to reserve some for rebuttal but  judge burrs on explain that one of the values of the public trial right is to remind the court person now the jurors the tourney's of their the importance of their please the court john sampson assistant attorney general for the epilepsy the court should affirm the district court's judgment for two reasons st as a matter of federal law the petitioner never invoked the right to a public trial in this case and therefore cannot show constitutional violation as a matter of federal law and nd the state court decision was not an unreasonable application of clearly established federal law or an unreasonable determination  ask you about the whether the failure to object controls it at best that would get you to play never it doesn't seem like it would mean that there was not ever and that from the supreme court decision and he was in weaver where they said gee you can deal with this just to have two for dear and then do the other half the forty years you can leave a section of the court room open for the public and that's what the supreme court said and it is so unusual to exclude the public that you would think a judge would have maybe had of law clerk check the decisions or maybe the prosecutor would have told the judge judge you may be planting appealable there or in this record i'm amazed that the prosecutor didn't cure the error well your honor that assumes there actually was an error which the state supreme court on direct appeal determined that the record on direct appeal do not prove that the court was actually cause that's why i asked all the questions about whether that was an unreasonable determination of fact and your honor its it was not even if this court believes it was erroneous and even if this court would look at the record before the state supreme court on direct appeal and would make inferences to determine that the courtroom was closed it was not unreasonable for the state supreme court to reach the opposite conclusion so what is the factual support in the record for the conclusion that it was not  of the trial judge comments were that there may not be room for all of you that the spectators were certainly reckon were certainly allowed to attend in observe and this is that excerpt record one hundred and twenty five to one hundred and twenty six he said you are certainly welcome to observe tomorrow when we have jury selection there will not be room for all of you but when you put it together with the thing that happens later that we were just reading about when they come back after the st round and he says now there is some room doesn't that suggest that there wasn't any room in the morning not exactly your honor and what the state supreme court said was we will not infer since the burns on the on the appellant to actually show  closure a rd not going to refer from just that silent record that there was a closure the judge said two rolls will be left open but it's unclear why those were left open when the prosecutor came in later and said i have some family members who are not witnesses in who had like to sit maybe in that nd row that nd row did have some jurors and it had one juror in it and the judge move that juror to another rose to that so that the family members could sit there and watch what those families one was that there was that later that was later your honor that was in the afternoon session one of the reasons that those family members may not have come in in the morning may have been because the judge excluded a family member who was a witness because that family member was a witness and the family members may have thought they were not allowed in in the morning the other reason that may have occurred is that members of the public might have been in but there weren't seats for those particular family members with the state supreme court said was we are not going to infer from a silent record that error occurred without some proof because again it is the appellant's burden to show the are actually occurred and so this  this case was under act appeal to this court this court may actually say that would be clear air but that's not enough under rice versus collins and under colin verse the pen holster it has to be that no fair minded jurists could reach that decision and i would submit that a fair minded jurist could make the same decision the state supreme court made now the case that we're reviewing is not that decision is the petition for collateral review is that not correct is that the most recent that is the most recent decision and and with respect to that the supreme court of the state denied review because mr  could not show prejudice when now that's a violation of federal law is it not clearly established the u s supreme court has not ruled at the time of this adjudication and even now as not ruled what is the proper standard of review on collateral review the two cases waller versus georgia and presley versus georgia were both on direct appeal weaver versus massachusetts which came out after this decision didn't directly answer the question although there is some language in weaver that suggest what the state supreme court did here was correct that have additional or trying to challenge a close jury or a closed courtroom on collateral review has to show some prejudice because how could that possibly be i mean for one thing and presently the court said prejudice is not necessary and for another i don't see how you could show it well your honor the supreme court has not fully developed this area there's very limited case law and what we have to look at what two important ones presently in weaver but those are both cases on direct appeal where the defendant objected and if you want to look at a case where the defendant did not object present presently he says no objection was necessary in the free press case as i recall and that the judge should in sewer sponte address the problem your honor pressley reference to press enterprise was talking about the st amendment right here we're talking about the th amendment right which are two separate right which is stronger which which is rather more pointed out but is also justice stevens in his concurrence pointed out in press enterprise where there was actually an objection to the closure by the press justice stevens pointed out this would be a different case if it was the defendant asserting a th amendment right and there was no objection to the closure so there was recognition and again the question under ed is not whether the state supreme court erred by not extending existing supreme court precedent the question is is there a supreme court case that the state court unreasonably applied and this is very much like leave versus frost where the this court in our decision found that the state court's decision not to apply structure where was unreasonable because hearing st is new york said you cannot prohibit closing argument and the u s supreme court reversed in this case are reversed in this court and cleaver says frost said well we've never said that directly so the state court's decision cannot be an unreasonable application of clearly stephens federal law counse assuming let's just say for the argument that we can't defer to the washington state last reasoned decision what about the merits of the th amendment itself i would like to hear your response to counsel on this issue of the i've staircase yes your honor i mr was different and fax is the to the duration because this was the morning session but what if you actually look what occurred in the morning session this was hardships what we call hardships in washington where a person would not be able to find work if they had to sit in a jury trial were the sole caregiver those type of things and as your honor pointed out there is actually a lot of times those are decided by the clerk outside of the public court room there is no u s supreme court case that says that hardships are protected or that part of the proceeding is protected by the open so i'm confused about why at least i believe this argument wasn't in your brief it seems that you tried to defend both of the state court decisions but never argued what we should decide if we have to look at this the novo it seems like you're now doing that today but why shouldn't we treat this as waived strong defense because i don't believe that the court needs to get there and if you're going to consider my argument waived then i would see under levine versus united states that is the controlling case levine versus united states expressly said if it fended does not object to the closure at trial that changes the constitution it would be a different case there is no constitutional error the court did not go into plain error of human living they said there is no constitutional hair  praed versus united states which dealt with the right to have an article three judge if the defendant does not object to the magistrate sitting in jury selection there is no constitutional violation it changes but it's good law anymore after i have to presume weaver well your honor i think that presley and weaver never said anything about that because they both dealt with situations where there was an express objection help me one thing before you and the requirement that we defer to the last reason decision we've been talking so far as of that means last in time which means the state supreme court's decision on the collateral challenge however i wonder if will last means the highest court or the final decision in the chain of state courts which would mean the state supreme court is there any authority that tells us which it means it strikes me that the state supreme court addressed specifically the fact question of whether the public was excluded the state supreme court on collateral review did not so i want to know what is the last recent decision mean it's their auth appeal or and on collateral and i love parker was about i thought parker told us we need to look at the collateral review decision and this kind of situation that may be true your honor i'm just not recalling barker what i would say is that my understanding is it is the very last decision which is also the decision by the state supreme court so in either analysis you're looking at the commissioner's ruling who is in this in our state acts as the state supreme court when the commissioner issues the pub the recent decision so that would be what the court would be to look at a lot of the arguments about what happened on appeal are simply addressing the petitioners arguments about what happened on appeal and how they had argued both below and in this court that the state court on appeal was unreasonable and i was responding that i think the court me focus simply on the last decision unless the the last three days and decision on the p r p is the washington supreme court's decision in which it said there was an important distinction in under a cloud or view because mr  submitted declarations that showed that the court room had in fact been closed and dressing you saying that the last reasoned decision was not the decision which is styled ruling  review april th two thousand and seventeen well the this record looked at two decisions because they were on made on two different records there's the direct appeal decision which was made purely on the record and then there is the later decision on mr john gay's p r p because essentially that the washing supreme court was saying prove it so are you saying we should look at both or we should only look at the direct appeal i think you can look at we look at the collateral review decision in washington and not the dr i think if we if if the court wants to just look at the collateral review decision then that decision was an unreasonable application and was contrary to supreme court law because it applied a harmless error prejudice standard to a structural error and as judge kleinfeld said presley waller nether they all and the supreme court's at that time and time again le vine does not apply here because involved the federal can come to print contemporaneous objection rule washington has a more liberal rule it does not require th to object at trial in order to bring that claim for the st time on appeal and that's well settled washington law and so that does not apply to this claim because this is not a federal law claim in terms of the procedural issue what words do we have exactly and in junkies declaration that was considered a cloud if you but not directly view which we have we have the declaration of a sister who says that she went to the courtroom early the day of our dear to try to get in when she says i was not let in she doesn't say no members of the public his church they went there but when she saw that the new members were brought into the courtroom and then the doors were closed and they were not allowed in now some of the members left some of members of his community left but she he also submit a question from himself that said that there was no one else in the courtroom other than the court person now i detective and the attorneys he also submitted a declaration  letter from the superior court that said that the maximum scene in capacity for judge metals courtroom was forty nine and we know that she asked for a larger than normal veneer of sixty five i think we've taken you over your time thank you counsel thank you both sides for the helpful arguments the cases submitted and we're journey because those are on the case today