f29 (concurring) — The lead opinion correctly recognizes that the in-chambers voir dire *467in these cases was a closure that violated Brian Frawley’s and Ronald Applegate’s public trial rights. And, it correctly concludes that neither defendant waived his right to challenge the closure under our constitutional waiver standard. I therefore concur in the lead opinion’s holding that “neither Frawley nor Applegate made a knowing, voluntary, and intelligent waiver of their right to a public trial provided by article I, section 22.” Lead opinion at 463.
Stephens, J.*467¶30 Unfortunately, the lead opinion clouds the clarity of this holding by going on to suggest that the very waiver analysis it applies is inconsistent with our Bone-Club11 analysis. I respectfully disagree. Whether a defendant waives his right to assert a constitutional error presents a different question from whether such error occurs; no error occurs when a court validly closes a proceeding under the Bone-Club analysis. But, even in the absence of a full Bone-Club analysis, a defendant is entitled to waive his right to an open court if the waiver meets the constitutional standard for waiver. There is nothing so unique about the public trial right under article I, section 22 of the Washington Constitution or the Sixth Amendment to the United States Constitution that makes it categorically unwaivable. On this score, I agree with much of the analysis set forth in Justice Gordon McCloud’s concurrence/dissent. I cannot join her opinion, however, because the waivers presented in both of these cases failed to meet the constitutional waiver standard.
¶31 There can be little doubt as to Mr. Frawley’s case. Regardless of whether Mr. Frawley may have ultimately waived his right to a public trial on the record, this occurred after the court had conducted individual voir dire in chambers and applied only to remaining portions of voir dire. Compare 1 Verbatim Report of Proceedings (VRP) (Nov. 28, 2005) at 67-68 (waiving only right to presence for individual voir dire in chambers), with 6 VRP (Feb. 14, 2006) at 864-67 *468(waiving public trial right for remainder of voir dire). Mr. Applegate’s case is less clear. He indicated, through counsel, that he had no objection to in-chambers voir dire, but the discussion that preceded the conversation between the court and counsel concerning Applegate’s waiver was confused at best and misstated the law at worst.
f 32 Critically, the judge indicated that the voir dire of jurors in chambers would be public:
Is there any member of the jury panel or any member of the public who is present who has an objection to our speaking with juror No. 21 guess in my office? It would be a public proceeding. Any member of the public that is available to come in I will have the outer door open for that purpose.
Applegate Report of Proceedings (Aug. 10, 2009) at 118. Applegate’s counsel and the judge then had the following exchange:
THE COURT: Mr. Nelson, do you or your client have any objection to ~
MR. NELSON: No.
THE COURT: Are you speaking for yourself and for your client?
MR. NELSON: I’m not speaking for my client. I’m speaking for myself as his counsel. I don’t know if he heard.
THE COURT: All right. Well, we have addressed it previously. I’ll let you step into my office to discuss it with him.
MR. NELSON: Could I first have a side bar with your Honor?
THE COURT: Yes.
(Side bar.)
MR. NELSON: Thank you, your Honor. For the record, I have talked it over with Mr. Applegate. He has no objection and I have no objection to going back into chambers and asking these questions without the public hearing.
THE COURT: It must remain a public proceeding. So I will open the doors to my office.
Id. at 119-20.
*469¶33 As the lead opinion notes, the State does not argue that the in-chambers voir dire was actually a public proceeding. Lead opinion at 460 n.8. Nor would this be consistent with our precedent. State v. Wise, 176 Wn.2d 1, 288 P.3d 1113 (2012); State v. Paumier, 176 Wn.2d 29, 288 P.3d 1126 (2012). Nonetheless, the trial court’s insistence that the in-chambers proceeding was not a closure strongly suggested that no public trial right was even implicated. Based on this advisement, I find it impossible to conclude that Applegate made a “knowing” and “intelligent” decision to “waive” his right.
¶34 I think it is important to recognize that public trial rights, like other important trial rights, are waivable. The presence or absence of a Bone-Club analysis is not determinative of whether a defendant will be allowed to challenge a violation of article I, section 22. It is equally important to recognize that a waiver is valid only when knowingly, intelligently, and voluntarily made, and this must be clear in the record. With these observations, I wholly agree with the lead opinion’s conclusion that neither Frawley nor Applegate waived his public trial right.
Fairhurst, J., concurs with Stephens, J.
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).