¶35 (concurring in part and dissenting in part) — I completely agree with the lead opinion that the in-chambers voir dire in both Frawley and Applegate constituted courtroom closures; the closures in both cases occurred without the explicit, on-the-record five-factor inquiry and balancing that the state constitution and our cases require; this constitutional error can be raised for the first time on appeal; and, the remedy for a reviewable error of this sort is reversal without any additional showing of prejudice to the outcome of the case. I also agree with the lead opinion that a defendant’s waiver of this right cannot be presumed from a silent record, from a *470waiver of some other right, or from the defendant’s decision to participate in a proceeding once the court has closed it to the public and the defendant has to make the best of the situation.
Gordon McCloud, J.*470f 36 I write separately because I believe that a criminal defendant has the ability to affirmatively waive the right to raise the issue of courtroom closure on appeal or collateral challenge. The lead opinion acknowledges that this is a theoretical possibility but says that it essentially requires a full Bone-Club12 analysis. Lead opinion at 463 (“While it may be true that a closure should be subject to challenge on appeal when there is a valid affirmative waiver of a defendant’s article I, section 22 public trial rights, it is necessary to emphasize that the doctrine of affirmative waiver is inconsistent with the Bone-Club analysis. This is the case because the Bone-Club analysis already incorporates a waiver analysis as the second factor, which explicitly compels the trial court to ask if anyone objects to the closure.”).
¶37 I respectfully disagree. I think the defendant can waive the right to an open court, if the waiver meets the constitutional standard for waiver. I believe that Applegate’s waiver met that standard and Frawley’s did not. I therefore concur in the lead opinion’s decision in Frawley but dissent from its decision in Applegate.
ANALYSIS
f38 The lead opinion essentially rules that a criminal defendant’s right to an open courtroom is nonwaivable without a Bone-Club analysis. As discussed immediately above, the lead opinion states that accepting a waiver is completely inconsistent with Bone-Club: “This is . . . because the Bone-Club analysis already incorporates a waiver analysis as the second factor, which explicitly compels the *471trial court to ask if anyone objects to the closure.” Id. “Allowing a closure with only an affirmative waiver by the defendant — and no Bone-Club analysis — also negates the very purpose of requiring a Bone-Club analysis . . . .” Id.
¶39 It is certainly true that some constitutional rights are nonwaivable. For example, there are good systemic, as well as individual, reasons for the rule that a criminal defendant cannot waive the right to receive a sentence free from taint by a “ ‘constitutionally impermissible factor such as race.’ ” United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (quoting United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992)); see also In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002) (“in general a defendant cannot waive a challenge to a miscalculated offender score”). Similarly, a criminal defendant cannot force a waiver of the constitutional right to conflict-free counsel on the court. Wheat v. United States, 486 U.S. 153, 154, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988); State v. Rooks, 130 Wn. App. 787, 799-800, 125 P.3d 192 (2005). And a criminal defendant cannot waive the right to appeal or collaterally challenge his conviction on the ground of ineffective assistance. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (citing Marin, 961 F.2d at 496). Further, a criminal defendant cannot waive the right to competency or to sentencing within the statutory maximum authorized by the legislature. See Pate v. Robinson, 383 U.S. 375, 384, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966) (defendant whose competence is subject to doubt cannot be deemed to have waived right to competency hearing (citing Taylor v. United States, 282 F.2d 16, 23 (8th Cir. 1960))); Marin, 961 F.2d at 496 (right to be sentenced within statutory maximum is nonwaivable). Both the defendant and the criminal justice system benefit from treating these protections as nonwaivable.
¶40 The criminal defendant’s right to an open courtroom is just as constitutional, but it is different. All the jurisdic*472tions of which I am aware treat it as a waivable right. E.g., Singer v. United States, 380 U.S. 24, 35, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965);13 People v. Lang, 49 Cal. 3d 991, 782 P.2d 627, 651, 264 Cal. Rptr. 386 (1989) (citing People v. Cash, 52 Cal. 2d 841, 846, 345 P.2d 462 (1959)); People v. Marathon, 97 A.D.2d 650, 650, 469 N.Y.S.2d 178 (1983); Commonwealth v. Williams, 379 Mass. 874, 401 N.E.2d 376, 378 (1980); Wright v. State, 340 So. 2d 74, 79-80 (Ala. 1976).
¶41 All of our cases have treated the public trial right as a waivable right, also. But they diverge on how it can be waived.
¶42 Most of our cases hold that a mere failure to object to a closure does not waive the right to a public trial. In Bone-Club itself, for example, this court rejected the State’s argument that the defendant waived his right to an open court by failing to object to closure, explaining that “an opportunity to object has no ‘practical meaning’ unless the court informs potential objectors of the nature of the asserted interests.” Bone-Club, 128 Wn.2d at 261 (quoting Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 39, 640 P.2d 716 (1982)). The court therefore concluded, “The summary closure thus deprived Defendant of a meaningful opportunity to object.” Id. (citing Ishikawa, 97 Wn.2d at 39).
f 43 We came to a similar conclusion in State v. Easterling, 157 Wn.2d 167, 137 P.3d 825 (2006). In response to the State’s argument that Easterling had waived his right by failing to object, we ruled that “under the Bone-Club criteria, the burden is placed upon the trial court to seek the defendant’s objection to the courtroom closure.” Id. at 176 n.8. Because the “record ... show[ed] that the trial court did not affirmatively provide Easterling with such an opportunity,” the court concluded that Easterling did not waive his public trial right by silence. Id.
*473¶44 We took the same approach in State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009) (plurality opinion). The lead opinion in that case, signed by four justices, stated, “It seems reasonable ... that the right to a public trial can be waived only in a knowing, voluntary, and intelligent manner.” Id. at 229 n.3 (citing City of Bellevue v. Acrey, 103 Wn.2d 203, 207-08, 691 P.2d 957 (1984)). The concurrence, signed by two justices, stated that “[i]f the lead opinion means that only an on-the-record colloquy showing such a waiver will suffice, I disagree. Waiver of many important constitutional rights may occur without an on-the-record colloquy.” Id. at 235 (Fairhurst, J., concurring). The concurrence concludes, however, that Strode did not waive his public trial right because “ [t]he record does not show a knowing waiver of the right to a public trial.” Id.
¶45 Finally, in Morris, we again rejected the State’s waiver-by-silence argument: “[A] defendant must have knowledge of a right to waive it. Here, there was no discussion of Morris’s public trial right before the closure. Thus, we do not find that Morris waived his right to a public trial.” In re Pers. Restraint of Morris, 176 Wn.2d 157, 167, 288 P.3d 1140 (2012) (plurality opinion) (citation omitted) (citing State v. Duckett, 141 Wn. App. 797, 806-07, 173 P.3d 948 (2007)).
¶46 Bone-Club thus requires a “meaningful opportunity to object” before waiver will be inferred. Easterling and Morris do too. Strode clarifies that the waiver must be knowing, voluntary, and intelligent but adopts no formula for ensuring that standard is met; the concurring justices acknowledge that it can be met without the same type of “on-the-record colloquy” that waiver of certain other rights (like the right to counsel) requires.
¶47 Applying those precedents here, Applegate got the right to object to courtroom closure, got to “talk[ ] it over” with his own (presumptively effective) lawyer, and provided *474his answer, through counsel, that he did not object.14 Frawley did not have such an opportunity.15
¶48 There are good reasons to stick with our precedent holding that the criminal defendant can waive this right and that he or she can do it without the court going through the five-factor Bone-Club analysis. The first reason is based in logic: Bone-Club is a means of protecting the right to an open court; waiver is a means of relinquishing the defendant’s ability to raise an error concerning the right post-conviction. The second reason is based in policy: a criminal defendant might conclude that temporary closure is more beneficial to his case, or his safety, even if he cannot prove it. For example, a defendant might seek privacy to disclose the fact, and details, of his or her own agreement to cooperate with the government — even if he or she can’t prove the certainty of negative consequences that would compel closure under Bone-Club.
¶49 What does it take for a criminal defendant to waive the right to raise a courtroom closure on appeal or in a *475collateral challenge? The lead opinion analogizes the right to an open courtroom to the right to a jury (as opposed to a bench) trial and says that the former can be waived in the same manner as the latter. The lead opinion relies on Strode for this analogy. Lead opinion at 461.
¶50 I agree that the analogy is apt and workable. But I disagree with the lead opinion’s description of how to properly waive both of those rights. The lead opinion states that a defendant cannot waive jury without doing so personally, on the record, in writing or following an on-the-record advisement of rights. Id. at 462 (“a ... waiver of the public trial right would require, at the very least, a written waiver signed by the defendant expressly acknowledging and waiving the right” or “an equivalent colloquy that satisfies this standard”).
¶51 It is true that a criminal defendant cannot waive a jury trial by silence or inaction. “[W]e have refused to infer a waiver when the record shows less than an affirmative, unequivocal waiver by defendant.” Acrey, 103 Wn.2d at 207. We have, however, said different things about whether the defendant must personally say this to the judge in open court or if the lawyer can waive the right when the circumstances show that the defendant is adopting the lawyer’s statements about the defendant’s intent. Compare State v. Wicke, 91 Wn.2d 638, 644-45, 591 P.2d 452 (1979) (no effective waiver of jury trial where no written waiver and attorney orally waives jury trial right in open court; court suggests that record must affirmatively show attorney was authorized to waive right on defendant’s behalf), and City of Seattle v. Crumrine, 98 Wn.2d 62, 653 P.2d 605 (1982) (no written or oral waiver by defendant on the record; conviction reversed), and City of Seattle v. Williams, 101 Wn.2d 445, 452, 680 P.2d 1051 (1984) (conditional jury trial waiver at arraignment must be done by defendant in writing), with State v. Stegall, 124 Wn.2d 719, 729, 881 P.2d 979 (1994) (waiver of right to 12-person jury valid only if record shows “(1) a personal statement from the defendant *476expressly agreeing to the waiver, or (2) an indication that the trial judge or defense counsel has discussed the issue with the defendant prior to the attorney’s own waiver” (emphasis added)).
¶52 As this list of cases shows, our most recent decision on this issue holds that a statement on the record by defense counsel can support a waiver when the record, fairly read, indicates that the defendant knew, heard, understood, and agreed with what the lawyer was saying. Stegall, 124 Wn.2d at 731 (no valid waiver where attorney waives right to 12-person jury on the record in open court where the issue “arose suddenly” and there was no indication that counsel and client conferred on the point, but there was indication that counsel waived a full jury “to avoid the embarrassment of proceeding with jury selection with a broken zipper on his fly”).16 That describes what happened in Applegate’s case, but it does not describe what happened in Frawley’s case.
CONCLUSION
f53 I concur in the lead opinion’s decision to affirm the Court of Appeals’ decision to reverse the conviction in Frawley. But I respectfully dissent from the lead opinion’s decision to reverse the Court of Appeals’ decision to affirm *477the jury’s determination of aggravating factors at the sentencing proceeding in Applegate.
González, J., and J.M. Johnson, J. Pro Tem., concur with Gordon McCloud, J.
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
To be sure, though, they differ about what it takes to waive the right. Compare Walton v. Briley, 361 F.3d 431, 434 (7th Cir. 2004) (requiring knowing and voluntary waiver), with Martineau v. Perrin, 601 F.2d 1196, 1200 (1st Cir. 1979) (failure to object may constitute waiver where the defendant is, on the record, made aware of his rights and declines to object).
After discussing the public trial right and the parties’ desire to have a private proceeding in chambers, Applegate’s counsel and the judge had the following exchange:
COURT: Mr. Nelson, do you or your client have any objection to —
MR. NELSON: No.
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.
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?
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.
Applegate Report of Proceedings (Aug. 10, 2009) at 119.
Frawley waived his right to a public trial on the record, but only after the court had conducted individual voir dire in chambers. 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 (waiving public trial right for remainder of voir dire).
There will certainly be exceptions where more is required to waive the right to an open courtroom, just as there are exceptions where more is required to waive the right to a jury. As the Court of Appeals explained in State v. Downs, 36 Wn. App. 143, 145, 672 P.2d 416 (1983) and State v. Likakur, 26 Wn. App. 297, 300-01, 613 P.2d 156 (1980), a written waiver will usually suffice. It may not suffice, however, when the record shows that the defendant needs more of an explanation: “absent circumstances that initially raise a question regarding the defendant’s capacity to waive a jury trial, the trial court need not conduct an independent inquiry on that issue prior to accepting waiver.” Downs, 36 Wn. App. at 145 (emphasis added) (citing Likakur, 26 Wn. App. at 300-01). That means that where there are special circumstances — such as those concerning competency or capacity — -more than a silent written waiver is required.