[00:00:31] Speaker 02:
But we know for a fact you ought to ask, even if we...

[00:01:24] Speaker 02:
were ever allowed in.

[00:01:25] Speaker 01:
What we have in the record is that there was some disruption in or about a disruption on the second day of the proceedings.

[00:01:59] Speaker 02:
allowed in the courtroom.

[00:02:00] Speaker 03:
So the defense counsel just says, your bailiff has been so kind to allow family members of my client to come in previously.

[00:02:08] Speaker 03:
I'm going to hope there will be no future issue at all with no discussion what the issue is.

[00:02:14] Speaker 03:
And then the court says, first of all, during the jury selection, we're just not going to have room for them.

[00:02:20] Speaker 03:
If I understand your brief, the whole argument that the family was

[00:02:35] Speaker 02:
discussion, the court says it twice.

[00:03:16] Speaker 02:
to a public trial is not just for the defendant.

[00:03:19] Speaker 02:
It's for the public as a whole.

[00:03:22] Speaker 01:
It's for everyone involved.

[00:03:23] Speaker 01:
My question is, he has some responsibility for making the record here, and the record is not clear in my mind.

[00:03:31] Speaker 01:
And I believe that the California courts noted that as well when they examined the record.

[00:03:38] Speaker 02:
Well, I would disagree with that characterization, respectfully, only because when I read the record, it seems to me that there's a clear

[00:03:53] Speaker 02:
So we have an actual order.

[00:03:57] Speaker 03:
And then... So there's no formal order, and there was no statement other than in this colloquy to defense counsel.

[00:04:06] Speaker 03:
So what does a trial court have to do to close the courtroom?

[00:04:11] Speaker 03:
Does there have to be some procedure?

[00:04:14] Speaker 03:
Does he have to tell the bailiff what would actually be required?

[00:04:18] Speaker 02:
Typically, if a trial court wants to close the proceedings,

[00:04:39] Speaker 03:
So part of our task is to say, is that objectively unreasonable?

[00:04:44] Speaker 03:
And I'm looking at the language in the colloquy with the defense counsel, and it's not clear to me that an order actually issued to prevent the family from being in.

[00:04:57] Speaker 03:
But so I'm asking, why do you think this is so unreasonable?

[00:05:05] Speaker 02:
Because we don't have anything in the record indicating that the family members disobeyed that order.

[00:05:11] Speaker 02:
We have an order.

[00:05:13] Speaker 03:
We're not there so far as we know.

[00:05:15] Speaker 03:
All we have is the transcript between the defense counsel and the

[00:06:15] Speaker 01:
to that finding by the California District Court of Appeal.

[00:06:19] Speaker 02:
Well, I wouldn't say there were actual factual findings, but even if they were, Your Honor, even if they made factual findings.

[00:06:26] Speaker 01:
Well, the factual finding is that there's not enough in the record here in order to resolve the claim.

[00:06:32] Speaker 01:
Then they shouldn't have re-manded, Your Honor.

[00:06:34] Speaker 01:
And he didn't meet it, and therefore he's not entitled to relieve.

[00:06:37] Speaker 02:
Well, he's on direct appeal.

[00:06:39] Speaker 01:
So what's unreasonable about the state court's rule

[00:06:54] Speaker 02:
under direct appeal, he can't supplement the record.

[00:06:58] Speaker 02:
We have an order from the court that says families are excluded.

[00:07:02] Speaker 02:
And even if there was any speculation about that, Your Honor, the state court had a duty to remand this case back for factual finding.

[00:07:10] Speaker 02:
That's another factor to consider under 2254D2.

[00:07:13] Speaker 01:
But he didn't raise this issue in the California habeas proceedings, did he?

[00:07:18] Speaker 02:
He did, Your Honor.

[00:07:51] Speaker 03:
And the Supreme Court has cases saying that if you don't make an objection on the record, then you forfeited your public trial right and we don't consider it on appeal.

[00:08:02] Speaker 03:
So can you explain why he didn't forfeit his right?

[00:08:07] Speaker 02:
Wasn't forfeited?

[00:08:08] Speaker 02:
Well, there's an open question, number one, whether or not anyone can

[00:08:20] Speaker 03:
from the Supreme Court?

[00:08:22] Speaker 02:
Well, yes, but we also have cases like Enterprise where there wasn't even a party involved.

[00:08:27] Speaker 02:
It was an actual press.

[00:08:29] Speaker 02:
And they come in and say they wanted to because the right to a public trial, Your Honor, is not just for the benefit of the defendant.

[00:08:36] Speaker 02:
It's for the benefit of the entire public system.

[00:08:38] Speaker 03:
But let's assume, given our case law, that you can forfeit it by not objecting before the trial court.

[00:08:45] Speaker 03:
How is it that he didn't forfeit it here?

[00:08:48] Speaker 02:
Because, Your Honor,

[00:08:58] Speaker 02:
What could defense counsel have said to the trial court, when the trial court has already made up its mind, saying your family members are not going to be allowed in here during jury selection?

[00:09:09] Speaker 02:
Couldn't he have simply said, Your Honor, just for the record, I just won't object to that because the Supreme Court says they have a right to be here?

[00:09:14] Speaker 02:
He could have done that, Your Honor, but he also could have understood

[00:09:46] Speaker 02:
codes is the actual trial court coming in and saying

[00:10:19] Speaker 02:
already made up his mind.

[00:10:22] Speaker 02:
You're over your time.

[00:10:23] Speaker 02:
If I may, may I reserve a few more minutes?

[00:10:25] Speaker 03:
You have no time to reserve, but we'll give you a minute for rebuttal.

[00:10:28] Speaker 03:
Thank you, thank you.

[00:10:39] Speaker 00:
Good morning.

[00:10:40] Speaker 00:
May it please the Court, Deputy Attorney General Kristen Chenelia for responding.

[00:10:45] Speaker 00:
The Supreme Court has not addressed

[00:10:50] Speaker 00:
anything less than a complete closure of the courtroom.

[00:10:54] Speaker 00:
And here we have defense counsel did not make a specific request to have the family members present, and the court did not issue an affirmative order closing the courtroom to the public.

[00:11:07] Speaker 03:
So what does, in state court, what does the court have to do?

[00:11:10] Speaker 03:
Why can't the court just roll from the bench and say we're not

[00:11:23] Speaker 00:
casual conversation here.

[00:11:24] Speaker 00:
You have defense counsel apologizing for the misbehavior of the defendant's family members, to which the court replied, they're welcome to be here, but logistics come up and we're going to have 60, we're going to have a panel of 60 jurors come here, so they should probably come later.

[00:11:45] Speaker 03:
And what was her procedure under state rules?

[00:11:53] Speaker 03:
or are these casual statements enough if said to the bailiff or whatever?

[00:11:58] Speaker 00:
I think right here on this record, it's definitely casual statement because if... But is that enough?

[00:12:04] Speaker 03:
I mean, the court's saying from the bench, we don't have room for the family members for the jury selection process.

[00:12:13] Speaker 00:
Well, defense counsel should have objected.

[00:12:17] Speaker 00:
And I think what happens so often is that when you don't have

[00:12:22] Speaker 00:
the very beginning of voir dire, and the Court of Appeal discussed this in their opinion, is that you ask the spectators to wait outside for a few minutes, and then as the jurors are excused, they come and occupy the courtroom.

[00:12:54] Speaker 00:
And yeah, what we happen.

[00:12:56] Speaker 00:
What we have is first day of more dear was in the afternoon and the record is completely silent.

[00:13:02] Speaker 00:
The next morning they continued more dear and there is a disruption in the courtroom and the court had to speak to the prospective jurors and let them know not to speak with individuals in the courtroom.

[00:13:17] Speaker 00:
And that was on day two.

[00:13:19] Speaker 00:
That was on day two.

[00:13:20] Speaker 00:
Day two so.

[00:13:23] Speaker 00:
Really, there is just.

[00:13:33] Speaker 00:
And for this reason, the Court of Appeal could not unreasonably apply to the United States Supreme Court precedent because they have not yet held that anything less than a complete closure of the courtroom to the public would be a Sixth Amendment violation.

[00:14:05] Speaker 02:
quickly, if the court has any doubts about what happened as a court of appeal, it seems like it did at the estate level.

[00:14:16] Speaker 02:
This case should have been remanded for a hearing.

[00:14:19] Speaker 02:
This is what happens in this – what happened in this court.

[00:14:22] Speaker 01:
But doesn't that run as a foul of pinholes or the Supreme Court decision that says we can't supplement or expand the record on appeal when we're looking at the challenge at the appellate level?

[00:14:35] Speaker 02:
if they survive 2254, D1 and D2.

[00:14:40] Speaker 02:
In this case, assuming they survive D1, D2, the fact-finding process itself can give rise to a violation of D2.

[00:14:49] Speaker 03:
You're saying it's a non-reasonable determination of the facts, because the Court of Appeals should have not ruled on the record, but send it back for an evidentiary hearing, is that right?

[00:14:57] Speaker 02:
Precisely, you have to have any doubts.

[00:14:59] Speaker 02:
Absolutely, Your Honor.

[00:15:03] Speaker 02:
If the court is inclined to find that there was no violation based on the record, just like the Court of Appeal did, for whatever reason, then he should be sent back for an evidentiary hearing because he overcomes the D2 for the de facto fact-finding process.