minutes for rebuttal as well please proceed dr moma first asked this court to affirm judge coon hours conclusion that the washington state supreme court's decision conflicts with waller versus georgia on the question of whether in whether questioning of the jurors here was an impermissible closure but dr moma asked this court to overturn judge coon hours conclusion that dr moma has nonetheless failed to present a  cognizable federal claim because he failed to object to the closure judge who now were stated as a matter of federal law a trial court need only conduct the wall or analysis if there is an objection by the accused but that is incorrect and waller itself demonstrates that in footnote two on page forty two of the wall or decision the court noted when there were a number of petitioners and while it was a joint trial number of defendants and the court noted that one of the petitioners in waller had actually joined in the state's motion to close the proceedings but the georgia court had nonetheless going ahead and considered his closure claim supreme court stated that it was reversing and remanding even as to that petition to determine whether or not that petitioner was procedurally barred from seeking relief as a matter of state law well now you're here under at the right yes all right so that puts you in a more difficult position but court judge cannot were seen to think that an objection was a matter of an element of a federal claim when in fact waller demonstrates that it was having been a trial judge and done a lot of and having been a trial lawyer and done a lot of jury selection it seems to me that you're putting forth almost an impossible standard to meet from this standpoint because courts want to select a fair trial you had a high publicity trial and you had a large for the new year and when and you had a client that didn't want someone blurting out things in front of other members of the jury to pollute the jury panel and to completely start over or that person may stay on the jury panel and so it seems to me you know that courts have to be able to allow to do some of the jury volodymyr questioning outside the presence of other jurors in order to the debate came where to put the rest of the jurors well that individual juror was questioned the solution that the trial court adopted was to take that individual juror into chambers outside the view of the public question them but the original discussion was where to whether there was a room big enough to put the other thirty or forty jurors while the individual questioning was conducted in the open courtroom and i understand your views as a trial in your client wanted that and you know in special in this type of trial to regularly in trials you have you want to get a fair trial and you want to be able to potential jurors to say something you know in this case there could be jurors on there or that asked to speak privately because they've been raped and those for the allegations against the defendant so you're proposing that they should have do you think that people would admit that in front of so public and then you would want that person on the jury so washington if you read the collection of cases that the washington courts have where the washing courts have applied waller both before and after dr mom case that our court has said it has to be in the public courtroom right that are under and are you is that the standard this is the wall or standard is the standard the only issue here is whether or not the wall or standard required an objection in the washington state supreme court have said no objections require the washington supreme court hears that there was more than objection and he was actually it's finding was that he was actually consenting and it was more of an affirmative waiver and justice can now were found that that was an unreasonable application of the facts here what dr momus lawyer wanted was individual questioning he wanted to prevent the pollution of the veneer not to prevent jurors from answering questions in open court and he moved to expand the number of jurors who were going to be questioned individually but not to expand the closure there's a difference here between asking for individual deer of jurors outside the rest of the time at the washington supreme court rule it was clearly established well our argument is of course that presley was simply an accumulation of other precedent that was clearly established but even so presley came out before the washington state supreme court decision was final but that the finality doesn't seem to matter in green the appeal was still pending before the supreme court there the state supreme court but the supreme court said at the matter because the reason decision it was only when the decision was issued and and by that well it was in washington the when the may there was a motion for reconsideration which is a part of the washington application of supreme court precedent it's at the time of the recent decision of a court well under in re st pierre and the other decisions in washington i believe that the last recent decision was issued after the motion for reconsideration was denied nonetheless dr moama also filed a personal restraint petition with the washington state supreme court summarily denied his motion for reconsideration and in that firmly established and regularly applied rule but there wasn't and the other reason is that the recent decision of the washington supreme court is the one looking at yes and it was not final before presley was decided but our other argument of course is that clearly established federal court u s supreme court precedent would have dictated that this be an open courtroom proceeding otherwise in addition of course dr moment made a petition for certiorari to the united states supreme court here that the closure of jury selection to the public violated the sixth amendment right to a public trial was not clearly established until the u s supreme court's decision in presley vs georgia in two thousand and ten that decision which issued after the state supreme court adjudicated the merits of the claim in this case in a green versus fisher the pressly case does not apply in determining whether or not the state supreme court decision was an unreasonable application of clearly established federal law because it did not exist at the time of the adjudication process enterprise strongly indicate that the supreme court would have extended the six and that right to void here it would indicate it does indicate that there is clearly a first amendment right to a public trial and for daire and the supreme court in presley relied on press enterprise to find that the sixth amendment right applies to voir dire but the supreme court also noted in waller versus georgia that they specifically said that the court had never considered the extent to which the right the six a member right extends beyond the actual proof of trial and waller was decided after press enterprises so waller recognized the press enterprise although it dealt with the first amendment did not specifically deal with the sixth amendment and never determined the reach of the sixth amendment public trial right in pressley the court itself said that it was not determining the whether both rights were co extensive in all phases of the trial and it said it didn't have to reach that issue when it did decide was that the six amendment right did was coextensive with the first amendment right as far as jury selection and all the court did talk about it being well settled what it was saying was it's well settled enough that we could decide this case and merrily it was not saying this supreme court was not saying that it's clearly established federal law because this was not a baby's case under and it was a direct appeal from the georgia supreme court and presley so the  state's position is that this claim is is not based on clearly established federal law because until presley there was no supreme court holding that the six member public trial right applied to jury selection therefore the state court's decision could not be an unreasonable application of supreme court precedent in the state court ended deciding this case did cite the wall or and it relied on that owns its own state constitution article one section twenty two to determine that there was a violation of the open public trial right in this case but because there was not a clearly established u s supreme court hoping that this was a six minute violation remedy of a new trial your honor the state's position as is both the state supreme court however found there was a violation of the state constitutional right to a public trial and therefore found it to be an error but found that the remedy did not require a reversal of the conviction in light of the circumstances in light of the fact that dr moma never objected in fact encouraged the private questioning of the jurors that was a reasonable application of the wall or decision because waller itself recognized that the remedy must be specific to the violation that occurred in that particular case so what is this what is the standard should we use what standards should we use to determine whether the improper closure of what dear merits a new trial you're under the the the difficulty is that there's not a clear standard yet the supreme court has not never really addressed a situation where there is a no objection and the defense has actually encourage the use of private questioning the as a district court pointed out there is not a single supreme court case cited by  moma where the supreme court has granted relief in reverse a conviction based on a situation where the defendant did not object the court did say and wallow in waller in that footnote that we're going to remand the four defendants claim as well that the state court but the supreme court did not grant relief to not reverse the conviction in that case so in answer to your question your honor there is no clearly established standard leases to this case as to when relief should be granted to reverse a conviction and for that reason the petitioners not entitled to his corpus releases under twenty to fifty four d and it's also the state's position that as a matter of federal law even if this court were to review the case  that this is one of the rights that must actually be invoked in the supreme court and levine versus united states said that the lack of an objection changed the constitutional analysis because the defendant  court rivera found that the defendant had objected and therefore had preserved his right to a public trial but the live in court clearly said that if you don't object that changes the right to changes the constitutional analysis and the supreme court reached a similar decision in the pretz case dealing with the right to have an article three judge decide a case and the defendant did not object to the magistrate judge doing jury selection in this prim courts and there's no constitutional error there's no constitutional right to have an article three judge no your honor because that case will be decided long after the state court's decision so there is under green versus fisher there is no retroactive the occasion of supreme court precedent when you're conducting the twenty to fifty four d analysis because because the law is not clearly established that the sixth amendment even applies in this case the state court decision cannot be an unreasonable application in supreme court precedent for that reason relief must be barred under twenty two fifty four d ron briefly i would like to make three points first in regard to the question of whether or not jurors could ever be questioned privately the answer is yes but the court would have to make findings and those findings are missing from this record it's part of the problem that judge who now were identified and found were an unreasonable application of the federal precedent on that issue second of all in green the difference between green and momus cases in green nothing was pending it his case had been dismissed as improvidently granted that dr momus case under the washington rules of appellate procedure was still pending at the time the motion for reconsideration was filed and we've cited to all of the washington precedent in that regard as to  or riviera in dicta the court does mention levine but the court also relies on the federal rules of criminal procedure fifty one and says i contemporaneous objection is required in federal court it i'm quite certain it is but washington has a different rule there's no contemporaneous objection required in cases following moment wise being the one that we have cited in our briefing and it's probably the most apt the court said basically well they said i don't think we'll ever see a case like moma again which i take as a tacit admission that they got it wrong because in subsequent cases they found similar closures to be automatically  reversible finally as to what kind of remedy in waller of course it was a new suppression hearing the problem with jury of what dear is you can't go back and redo the jury of what here in public and then affirm the conviction  as presley and the other cases demonstrate reversal is required so we would ask this court to reverse judge who now responding that the objection was an element of the federal claim here right thank you  argument this matter will stand submitted