teen twenty one seventy four martez versus thomas when arguments not to exceed fifteen minutes per side mr middle step for the facts and explain to you why there was not a procedural default in this case i think michigan's contemporary objection contemporaneous objection rules were complied with both along in fact and i think the federal contemporaneous objection was were complied with with  on the federal rules are irrelevant but michigan's rule they held was not complied with direct action why shouldn't we defer to their ruling of their own law every circuit that's looked at it says you do not followed which is a contemporaneous objection at the time that the people did not come in when seats were fake that the they put the onus in michigan on the lawyer not the judge and the lawyer didn't raise i know you raised initial objection and the judge said yeah when seats open up public's welcome to come in seats opened up defendant doesn't renew his objection michigan says that we have a contemporaneous objection role you had to object at that time you didn't and you didn't put the district as i noticed there were seats open are the trial judge i'm sorry so you waived the right to proceed on this client that's a that's a question for this court to decide on procedural bar said i'm going to have it open as soon as their seats open which makes perfect sense during already are right you and i both been in small corms where you try to fit the got to put the panel in first the problem is achieved the courtroom wasn't opened back up in fact to spectators jurors are right i've been there i've sat there you don't know who's in the courtroom course and someone's got to tell you because you're focused on board here ok but this was this closure occurred pressley says that you have deborah presumption of openness and that if there's a room if there's a space limitation you say hold on time out let's see if we can make accommodations ok so you're blending the two issues i totally agree with you on presley ok pressley there's a presumption of openness district the courts and she says we're going to have it  michigan supreme court has counsel should object or underpay under but go ahead i'm sorry but my point is you're mixing apples and oranges pressley is a constitutional case what's the constitutional obligation what michigan's talking about is the to surance as from a judge that your concerns are going to be addressed your concerns are not going to be the alleged violation it's not going to occur you can assume that that's going to happen case you have or that's the hernandez case and we cited in our brief there was a case where there was a motion in limine a before trial the judge granted a motion in limine and the witness unexpectedly at trial boarded out something about the evidence that was excluded and supreme court said well given the realities of trial he couldn't contemporaneously just any couldn't he he did it later on a sidebar and they said well that was entirely feasible under the circumstance but that's you're talking about evidence right is that we yes you're talking about something that the trial judge would know about right which is different in this case there's no evidence the trial judge what seats are not available counsel is facing the jury but the other point is that the is there any evidence that the attorney knew that there was a sign outside no no there was not the court room door there was a there was an internal door and there's like a breezeway there's an internal door next door in the sign was put on the external door in fact a year and a half later that sign was still there during blunt here so this is not just a case pacific inquiry this is a policy that's been followed by this judge ongoing so there's no evidence that this attorney knew in fact he was entitled to what why on the judges here and says that the courtroom would be reopened in fact he was tired and i think i understand your argument you're entitled right to rely upon it but if they're in the same position the judge doesn't know that know that someone's trying to get in that hasn't gotten out and the attorney doesn't the michigan law puts the onus on the attorney to object in other words i want someone in this courtroom they're not there there's an empty seat judge in that's what they're contemporaneous objection and that has been around since one thousand nine hundred seventy nine why don't we have to than according to every circuit in the country defer to them on that if we see it in their law and if they enforce it we differ first of all the contemporary object objection rule was not in place with the fact the only published opinion on the case was in one thousand twenty three which is in the cali case which i cited in my brief which of which reversed a conviction based on a close courtroom court the supreme court decision stays in effect until it specifically go away i'm sorry what was the supreme court case saying that they khaleesi case overturn a conviction based on a close courtroom issue and the court ruled that a post trial motion was sufficient to preserve the partially that was way before presley in fact it wasn't until long after presley and after trial in this case that this supreme court in michigan actually said for the first time we've never fully addressed whether you can forfeit under the modern under a law no and under  michigan's version of all i know and we're holding for the very first time that you even have to make an objection so i think that that i've hung you up on procedural default for a long time well when it moved to the merits well i don't think there's anything to talk about i think once we get to the merits we win in the state deference there is no deference because it's it's number one is to know because there was no procedural default it's not an adequate in an independent grounds for for they didn't they analyze it under plain air they analyze the the pressing issue was whether they're the fourth prong of a lawn and whether there was a impact on the integrity of the system that isn't but that's sufficient right at post harrington director that seems i mean we've held that  long as they do the analysis even if they just said we analyzed it under plain error of firm that's sufficient for at but for the problem is waller doesn't let you do that that's contrary to waller you still have to decide whether it was contrary to or and reasonable the cation of federal supreme court yeah that's sad but deference narrow you still apply the def and going into what harm analysis which they did in this case is contrary to presley probably doesn't allow that presley says its structure where we were saying even under just as hard to rephrase your argument but even under at the deference us yet because that what they did was they never got really got into the merits of whether this was a justifies clothing and they couldn't because presley was so blatantly violated in this case that was it was a policy there was no fact specific in court where there's no accommodations made there was no indication that it was any narrower than necessary to fulfill the requirements of press so what they did was then they went to harmon press and said you know get it done weaver said you don't get in the car because it's a structural issue what they during all of what year partial quote courtroom closures occur remind me and i'm sorry i've read a bunch of cases is this the case where someone said because there is that different or we allowed the jury in the juries part of the public's puts a partial closure that's what the michigan that seems wrong to me yeah yeah and i'm think we need to address that as if they can say it as it were because our were guards to michigan law but as to federal law ok so i just want to go back to procedural default one more time because it seems like and i struggled with this a little bit too there is a blurring of the line between a productions and whether there's a procedural default this court has a duty to did noble review whether the the procedural right and that requires them to look at you to look at whether there was an adequate and timely objection under the principles under the guiding principles of what federal jurisprudence says is enough and under the state rules the state rules in michigan worked out so your time is up i just want to say the state rules in effect at the time were not firmly established and  good morning ma'am please the court percent ords michigan assistant attorney general on behalf of the warden mr bercow was convicted of second degree murder of a seven day jury trial there's only one issue and the state is arguing procedural fault existed here as is already been discussed in michigan court of appeals found that there was not a contemporaneous objection what happened in this case is you had an objection how do you deal with the cases that your opponent cites hernande it's interesting that neither one of those cases was cited by mr become in the state court i checked so he didn't even ever tell the michigan courts all what happened here that's occurred that's ok they may say need to know their own law oh but it's got to be brought to their attention  claim and hernandez the prosecutor in the michigan court of appeals cited another case that you can sort of read the other way it's light and and hernandez also distinguish well like you said because it's evidence and here the judge doesn't know who the defendant's brother and what we do on that one on is constitutional and one of those is just a procedure well even the united states supreme court requires contemporaneous objections they have denied relief in public trial cases where there was no contemporaneous objection i cited levine's singer and carets and all three of them say that if you don't raise it in a proper time period it's lost or forfeit that temple i think i don't understand your argument i mean counseling raises the the issue clearly when when the court excluded the public chancellor raised the issue and the court answered we're only doing this f now i fully understand presently and your argument and i will not exclude the public that's what the judge says so he for see he has to  i mean why how can you say that was not a contemporaneous objection because the objection was sustained the judge said i agree with you counsel i have no intention of keeping all the public out i will let the but i think you're missing the point the judge ruled in his favor so the judge at that point committed to letting the public  policy not to let the public and during voir dire it was incumbent upon the judge at that point having been informed and having acknowledged presently and tell them to take the sign off the dole or the court officers were in the room when the judge said the public will be let back in space permitting the judge is not on the hook for unauthorized actions can come back and space permitting and defense counsel did not speak up at the appropriate time you cannot object when it's too late to cure the error that's why the machine court of appeals honest told us i mean if you really want these people back in you're the defendant or the defense attorney doesn't take that long for fifty people to come into a courtroom and sit down maybe five minutes i don't know and then they look around while this bench is empty and they my mother and brother didn't come back and your honor didn't you say or even as a district judge said the mother or brother could have said well we were just in there and the judge said we could come back in if there was space for a meeting would you ask if there is space permitting but instead defense counsel sat on his hands almost like possibly an a just ignorance we don't know which but the michigan court of appeals was justified you know the precise contours of the contemporary time jackson rule is a matter of state law and the michigan court of appeals because the last word on that was the michigan supreme court so it's different and they didn't say anything different in all the judge has not made an error because the fact that no member of the public was present during the two hours or dear was not because of some of the judge did but as the judge said they could come back or policy if they don't work there is all record of this being a court policy in fact the record supports this was not a court policy the record supports the judge said on the record members of the public will be let back in space permitting that's what the record shows now somebody found a picture that was used and if the bailiff such a picture in this trial that would be contrary to what the judge had just sat we attribute the error to in other words we all agree that the bailiff should not have done what they did why should defense counsel have the  attributed to them because had he spoken up the error could have been cured by the judge and would have been consistent with what she had said and i cited the tenth circuit case in my brief for a bailiff do the same thing in the tenth circuit in unbeknownst to anybody he kept somebody out of the courtroom and the court said well the judge didn't authorize this in order to have a sixth amendment violation you have to have an order from the judge it's not enough to have a probe bailiff are you seriously arguing members of the public will be let back in space permitting that is the policy of the judge from this record was very let's acted contrary to that instruction was there not a stipulation that there was there pursuant to a par with there was a stipulation that bailiffs use such a sign in cases but that is in this case we have a judge saying to the contrary that sign the public trial violation ok counsel i just i don't want to argue with you but i really think that you are ignoring the stipulated fact which is that  relationship and defendant brother and mother observed just sunshine and the brother was told by the deputy that he could not and so all of that is in the record and it was  and also in the record is the judge saying members of the public will be elect back and space permitting and if a bailiff put up that sign after the judge said that he was acting in he was not complying with what the judge decides was supposed to happen and if defense counsel had just objected at a time then the judge could have said hey you're right let's find out who it was or somebody else might want to come back and we do have a little space here but there was an object if we reject your procedural default under ed and i went under and put deference because there was no judge ordered a complete closure of the courtroom the judge did not say members of the public cannot be here for border that's what happened in presently that's what happened in waller the judge specifically said members of the public are not allowed in this case it's quite differently judge said members of the public will be let back in space permitting that clearly distinguishes the case from presently and waller in and under it but you can expand the law you can't you know enlarge it you can't you know apply a broader rule than is already in existence and i would also object to or counter an argument that was made plain or review is allowed for structural errors and that's what happened or you also have to show procedural default prejudice and as ambrose described it that means you have to show that the result of that outcome would have been different that's the key language would have been different and here it cannot be said that if the petitioners mother and brother had observed the two our board here the result of the seven day jury trial would have been different you just can't say that with a straight face quite honestly and the district court really upset that defense counsel hears clients they're so worried now that well whatever the mother and the brother of your opponent suggest that that's too much of their i don't know to be honest i mean it's very common for defense counsel meet with his client and the family members before trial and that's a very routine but i don't know for sure it happened here but surely he's in a better position to know than the judge without a doubt and once again of the da the defendant himself could have tapped his lawyer on the shoulder and say hey my mom and bro to come back in because he know now it's really my position that there was no closure here no court ordered closure because the judge said members of the public will be allowed back in space permitting and once again in waller and presently the judge made an actual order no public is not allowed and that did not happen here and so therefore under at pedestrians i would ask this court to affirm the district court's decision to deny ok thank you counsel thank you thank  and the so called rogue rogue deputy three that's contrary to the position that the state took below in the state court they agreed that there was and that timely objection that this to closure was attributable to the court that placed all their emphasis on i think is judge white laid out its supports that this was an ongoing policy and i think the judge herself said as much because even before she said i'm not closing the courtroom i'm going to let people back in but when he brought it up after even though i said before i'm going to reopen the courtroom now she's saying you had to make additional requests the stay to go he i think what she's saying because i mean i've been in this similar situations is bring it to my attention because i look the courtroom ok if someone's not being let in bring it to my attention i will remedy it immediately you can't bring it to the judge's attention after the fact is controlled chaos you know that and i know that the judge is focused on one hundred things and all michigan saying is look you want this to take effect bring it to the judge in a timely fashion and i am put the eyes with the trial judge here who's trying to do a hundred things and as rick made as your opponent points out the correct legal ruling i agree with judge white that it's problematic to me that these people are doing this and i struggle with well can a judge make a proper ruling and then there are agents not enforced at willing who's to blame i agree with judge white that's a problem but i understand the contemporaneous objection rule i mean ok that gets back to the stipulation and you hit right on the judge has a hundred things to do so this defense counsel and would depends counsel was told that's counsel's the one who wants these people who knows these people there's no way the judge is going to know who these people are the defense counsel was told by the judge in no uncertain terms in the state agreed with this and state court i will reopen the courtroom the defense counsel relied on that the state agreed the defense counsel relied on it given the realities of trial when you're picking up before your time runs out king address will mark that the statement at the end which is if we review it and we get to the point where we're seeing if there's harm right what's the harm we we don't and that's where contrary to comes in because presley and subsequent weaver says it's structural here if there's not a basis to close the courtroom i think the deputy argument that even under structural er we review it for our not in this context not in this context because it doesn't lend the federal purist prudence does not lend itself to a harm the only way that you get to a harm in alice is under the state procedural rules and if you do a difference if you look at that then it's not there and i don't think that that's not a merits based had had the court gone your argument is just to because your time so your argument is structural where in this context you don't get to arm analysis we don't have to show we  particularly because there was no procedural default because there was not an adequate independent state grounds ok thank you very much counsel any other questions judge white i'm sorry no thank you ok thank you counsel want to break you like counsel with your indulgence we're going to take a five minute break and will reconvene at ten o five is that ok judge wh