is over and assuming we get to it despite the certificate of appeal delivery that it structural there is no supreme court's opinion on all fours with all the facts in this case around it but as this court ha noted in the van tran case and indeed at the supreme court articulated in healer one does not need to have a case on all facts on a horse what is the strongest case for its being structural it seems like whenever we say something structural error we get reversed and the supreme court pretty much seems to have locks well your honor at the supreme court level there are two cases i would point to and then there are circuit court cases which tell me supreme court decision i would point to your honor would be rushing to spain and while that decision notes that presence there as are usually subject to a harmless error analysis it also states in footnote to that that's the case  cannot be harmless it's hard for me to see how we could hold that a state appellate court decision was clearly contrary to russian beast being or was an unreasonable application of a reasonable interpreted in the william sense where there's nothing more specific than that the supreme court has said what am i missing what warden doesn't suggest that deprivation of presence at the entire trial would not be subject to structural error and moreover it can't be the rule that presents at merely the portion of the trial prosecutor the defense lawyer and the judge about whether the criminal charge against defendant's retained counsel required her to withdraw very that's correct your honor but although it seemed the carefully go through things on every contention the defendant made about how it affected it and said well she didn't for punchers i think your honor there's a difference between the adverse impact inquiry which first the supreme court said in direct that trial errors on collateral review are should be reviewed for under a prejudiced analysis which was to whether there's a substantial injuries impact on the jury's deliberations and that's a different that's a different standard than the six then the standard which would be applied here to the six minute claim and again  to the question is whether one can quantitatively assess the impact of the error in light of all the evidence presented to the jury to determine whether or not he was harmless and although it may be your honor that  deliberation and verdict and for that reason the error rises to a structural level and for that reason it sets the trial process because the question of exactly exactly how this affected the outcome of of the jury's deliberations cannot be that there was a fifty one percent chance that councils performance was affected nevertheless one cannot quantitatively assess in light of the evidence presented to the jury what the likely  i would argue that if one were to conclude there would say there is only forty nine percent chance less than fifty percent chance the council's performance was a factor but it's still a possibility it still remains the case that one cannot quantitative to get back to out to the discussion of of what supreme court law another loss of courts this conclusion in addition to form an ontario and russian which are the supreme court level cases there are indeed other cases that a trial and the supreme court in waller be georgia held that that right attaches not just the entire trial but to do segments or portions there are now it can be a trial can be closed or portions can be closed depending on the governmental interest honor and the supreme court has has indicated that some presence errors can rise to the level of structural error and the question then becomes which presents errors are going to meet that test and i would argue that it is appropriate to look to a certain level law to apply that supreme court principle on  three hundred six and three hundred seven a film and i think let me tell you what i'm thinking about it three hundred sixty four men aren't they says most constitutional errors can be harmless the court the defendant's right to be present the trial that seems to say in so many words that the nihil of the defendant's right to be present the trial is an error that can be harmless as opposed to structural e even if in some circumstances or in some lower federal courts contrary conclusion has sometimes been reached i don't see how a state court could be unreasonably applying supreme court authority if they reach back and a conclusion that was not contrary to that what am i missing here well part of the answer i think lies in the statute which is  russian first of all russian concerned absence from any colloquy with a juror who had raised a concern she actually knew the victim of a witness who was testifying against one of the defense the trial and so it's a very different kind of present there than the ones here and arguably might even be considered to be a to minimize kind of a or on so i don't think that the quick parent that a court description of representation it's not enough that there is a potential conflict and then you look to see whether it actually affected representation and the state court didn't look to see if it actually affected representation said well the way it would affect that if it affected it is the prosecutor would poor questioners so as not to make the d a s office mad at her when she was in the defendant's chair for her rap methamphetamine case and they said no she didn't as confidence in the courts is undermined by by a secret trial or a secret proceeding regard less of the impact in a particular case and and that's why exclusion from an entire trial or more critical portion of a trial rises to believe that circuit rule twenty two dash one easy perhaps i'm not positive but i think that's what it is and what that said was that a petitioners attorney can brief both certified and certified issues in the br