¶54 (dissenting) — The lead opinion reverses the convictions in Frawley and Applegate for public trial violations even though Ronald Applegate affirmatively waived his right to a public trial and Brian Frawley never objected to the in-chambers questioning of one juror and, in fact, consented to it. I respectfully dissent.
Wiggins, J.¶55 I agree with Justice Gordon McCloud that a criminal defendant may affirmatively waive his or her right to a public trial as long as the waiver meets the constitutional standard for waiver. Concurrence/dissent at 470. Thus, like Justice Gordon McCloud, I would affirm the Court of Appeals and affirm Applegate’s conviction because Applegate waived his public trial right.
¶56 I write separately because I also dissent from the lead opinion’s decision in Frawley. Waiver is one way to lose on appeal; failure to object or show prejudice is another. Here, Frawley has not demonstrated that the limited questioning of jurors in chambers was structural error. In addition, he failed to object to the alleged closure at trial and fails to satisfy the requirements of RAP 2.5 on appeal. Neither defendant nor the lead opinion can identify any prejudice whatsoever resulting from the alleged error. Thus, I would hold that he is not entitled to a new trial.
¶57 Neither the lead opinion nor the defendants have identified any prejudice to either defendant as a result of the limited in-chambers voir dire. Instead, the lead opinion resorts to the doctrine of structural error, concluding that the in-chambers voir dire rendered the trial fundamentally unfair. In relying on this highly theoretical prejudice, the lead opinion ignores the actual harm resulting from reversal and retrial. Not only is retrial a waste of judicial and *478prosecutorial resources, it subjects the rape victims in Applegate’s case and the family of the murder victim in Frawley’s case to the painful prospect of unnecessary retrials. The partially decomposed body of Frawley’s victim was discovered with a ligature around her neck and bruising inflicted before her death. State v. Frawley, 140 Wn. App. 713, 716, 167 P.3d 593 (2007). Semen matching Frawley’s DNA (deoxyribonucleic acid) and fibers from the car driven by Frawley were found on her body. Id. at 716-17. The jury found Frawley guilty, but the lead opinion reopens this 10-year-old murder case and subjects the victim’s family to the ordeal of another trial. The Applegate jury found that Applegate repeatedly raped his wife’s daughter and niece, from the ages 9 to 14 and 10 to 19 respectively, impregnating the niece at the age of 15. State v. Applegate, 163 Wn. App. 460, 464, 259 P.3d 311 (2011). The lead opinion overturns Applegate’s conviction, reopening the trauma suffered by these young women two decades ago and subjecting them to a retrial. No legitimate purpose is served by subjecting these families to a retrial for in-chambers voir dire to which Applegate clearly consented and to which Frawley never objected.
ANALYSIS
I. Our designation of all public trial violations as structural error is flawed
¶58 We should overrule our cases holding that all public trial violations, including failure to conduct a Bone-Club17 analysis, are structural error. State v. Wise, 176 Wn.2d 1, 7, 288 P.3d 1113 (2012); State v. Paumier, 176 Wn.2d 29, 33, 288 P.3d 1126 (2012). This rule is incorrect and harmful. City of Federal Way v. Koenig, 167 Wn.2d 341, 346-47, 217 P.3d 1172 (2009) (stare decisis requires us to adhere to precedent unless our earlier decision is incorrect and harmful). Labeling all public trial errors as structural is incorrect *479because it conflicts with the clear definition of “structural error.” This rule is harmful because it leads to unnecessary reversals where there is absolutely no showing of prejudice and it fails to reconcile competing constitutional interests.
A. Conflicts with the definition of “structural error”
¶59 In Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991), the Supreme Court divided constitutional errors into two classes: structural errors and trial-type errors. See State v. Levy, 156 Wn.2d 709, 725, 132 P.3d 1076 (2006) (reiterating difference between structural and trial-type errors). As I explained in my dissent in Paumier,
A structural error is an error that “ ‘ “necessarily render [s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” ’ ” State v. Momah, 167 Wn.2d 140, 149, 217 P.3d 321 (2009) (alteration in original) (quoting Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (quoting Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999))), cert. denied, 131 S. Ct. 160 (2010). Structural errors “ ‘infect the entire trial process’ ” and deprive the defendant of “ ‘basic protections,’ ” without which “ ‘no criminal punishment may be regarded as fundamentally fair.’ ” Neder, 527 U.S. at 8-9 (quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)).
176 Wn.2d at 45-46. Structural errors defy harmless error review because they are “defects in the constitution of the trial mechanism.” Fulminante, 499 U.S. at 309-10. These errors taint the entire proceeding, but their specific prejudicial consequences are “necessarily unquantifiable and indeterminate.” Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993); see also Neder, 527 U.S. at 7-9. By contrast, a trial-type error occurs “during the presentation of the case to the jury” and may be “quantitatively assessed in the context of other evidence presented in *480order to determine whether its admission was harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 307-08.
¶60 The rare cases in which the Supreme Court has deemed errors structural have involved complete denial of counsel (Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)), denial of choice of counsel (United States v. Gonzalez-Lopez, 548 U.S. 140, 148-49, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006)), denial of the public trial right due to closure of an entire suppression hearing (Waller v. Georgia, 467 U.S. 39, 49 n.9, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)), a biased trial judge (Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 71 L. Ed. 749 (1927)), racial discrimination in the selection of a grand jury (Vasquez v. Hillery, 474 U.S. 254, 263, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986)), and denial of the right to trial by jury where the court gave a defective reasonable-doubt instruction (Sullivan, 508 U.S. 275). What these errors have in common is that they affect myriad aspects of trial, making it nearly impossible to assess how and whether the error affected the outcome of the case. See Gonzalez-Lopez, 548 U.S. at 150-51. Nevertheless, we presume they are prejudicial because they involve the complete denial of significant constitutional rights.
¶61 The lead opinion simplistically assumes that any time jurors are questioned in chambers the court has committed a structural error. But the United States Supreme Court has never held that selected in-chambers voir dire of certain jurors is automatically structural error and, indeed, has endorsed the practice in some situations. See, e.g., Press-Enter. Co. v. Superior Court, 464 U.S. 501, 512, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (when dealing with sensitive matters, limited questioning of jurors in chambers is appropriate). Cases where the Court has reversed a conviction due to an erroneous courtroom closure are limited. In Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010), the Court reversed a conviction *481because the courtroom was closed to the public for the entire voir dire. In Waller, the public was totally excluded from a seven-day suppression hearing that included testimony of witnesses. 467 U.S. at 42.
¶62 The lead opinion ignores statements by the Supreme Court that there are necessarily gradations of error and that labeling an error as structural in an extreme case does not automatically mean that any violation of that constitutional right is also structural error. The Court has noted that the central purpose of a criminal trial is to determine guilt or innocence and that the court should focus “ ‘on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ ” Rose, 478 U.S. at 577 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)). The Court also noted, “ ‘ “Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” ’ ” Id. (quoting Van Arsdall, 475 U.S. at 681 (quoting Roger J. Traynor, The Riddle of Harmless Error 50 (1970))). The Court concluded, “The thrust of the many constitutional rules governing the conduct of criminal trials is to ensure that those trials lead to fair and correct judgments. Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” Id. at 579. Accordingly, the Court concluded that a jury instruction that impermissibly shifted the burden of proof on a specific issue to the defendant was not necessarily structural error. Id. at 579-80.
¶63 The Court similarly held that even an instruction that might result in a defendant being found guilty for noncriminal conduct is not necessarily structural error. United States v. Marcus, 560. U.S. 258, 263-64, 130 S. Ct. 2159, 176 L. Ed. 2d 1012 (2010). “That is because errors similar to the one at issue in this case — i.e., errors that *482create a risk that a defendant will be convicted based exclusively on noncriminal conduct — come in various shapes and sizes. The kind and degree of harm that such errors create can consequently vary.” Id. at 265.
¶64 In Marcus, the Supreme Court rejected the defendant’s argument that “we should apply the label ‘Ex Post Facto Clause violation’ to the error in this case, and that we should then treat all errors so labeled as special, ‘structural,’ errors that warrant reversal without a showing of prejudice.” Id. at 264. The Court held, “[H]owever Marcus’ claim is labeled, we see no reason why this kind of error would automatically ‘affec[t] substantial rights’ without a showing of individual prejudice.” Id. at 264-65 (second alteration in original) (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009)).18 Unfortunately, we have repeated the same mistake rejected by the Marcus Court: we have labeled any in-chambers voir dire as “structural error,” oblivious to the actual impact or lack of impact on the defendant’s right to a public trial.
f65 Our own cases confirm that the nature and extent of an erroneous closure at trial can vary greatly. See, e.g., State v. Shearer, 181 Wn.2d 564, 334 P.3d 1078 (2014) (in-chambers questioning of one juror who was ultimately dismissed); cf. In re Pers. Restraint of Orange, 152 Wn.2d 795, 801-02, 100 P.3d 291 (2004) (judge closed entire courtroom for two to four days of voir dire over the objection of the defendant’s family); State v. Easterling, 157 Wn.2d 167, 172, 137 P.3d 825 (2006) (courtroom closed to defendant, defense counsel, and public during motion to sever a codefendant’s *483trial). It follows that their effects on trial can vary as well, and I would hold that “the remedy should be appropriate to the violation.” Waller, 467 U.S. at 50.
¶66 Indeed, the current cases provide examples of nonstructural public trial errors. In Applegate, before questioning a juror in chambers, the judge asked if any member of the public objected; no one objected. The court then asked if Applegate objected. After consulting privately with Applegate, defense counsel provided a valid waiver on behalf of his client. See concurrence/dissent at 473-74. The parties then briefly questioned one potential juror, who had asked to speak in private, in chambers.
¶67 In Frawley, because the case had garnered extensive pretrial publicity and involved sensitive issues regarding sexual assault, the judge used a preliminary questionnaire to ask prospective jurors four questions. If a juror answered yes to any of the questions, the judge interviewed that juror in chambers regarding his or her answer. It is undisputed that Frawley waived his right to be present at this phase and eventually waived his right to public presence during general voir dire.
¶68 Neither of these errors was structural error. Structural error analysis asks us to determine whether the defendant received a fair trial, not a perfect trial. See Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 97 L. Ed. 593 (1953) (“A defendant is entitled to a fair trial but not a perfect one.”); Paumier, 176 Wn.2d at 44 (Wiggins, J., dissenting). In Applegate, the defendant knowingly and intelligently waived his right to a public trial. In Frawley, the trial judge should have obtained a waiver prior to the individual voir dire but there is absolutely no indication that failure to do so rendered the trial unfair or unreliable. Thus, I would hold that the improper in-chambers voir dire did not constitute structural error because it did not render the trial unfair, nor did it convert an otherwise sound trial into an unreliable vehicle for determining guilt or innocence.
*484¶69 These errors fail to meet the high standard for structural error and do not belong in the same class of errors as closure of an entire suppression hearing, complete denial of counsel, a biased trial judge, or racial discrimination in the selection of a grand jury. Instead, these errors are analogous to the numerous other constitutional errors identified by the Supreme Court as subject to harmless error analysis. See Fulminante, 499 U.S. at 306-07 (listing errors subject to harmless error analysis, including jury instruction misstating an element of the offense, erroneous exclusion of a defendant’s testimony regarding circumstances of his confession, restriction on a defendant’s right to cross-examine a witness for bias, denial of a defendant’s right to be present at all critical stages, and denial of counsel at a preliminary hearing).
¶70 Our current practice of deeming all public trial errors as structural is incorrect because it fails to consider that public trial violations take on many forms. Moreover, this rule conflicts with the definition of “structural error,” which limits its application to extraordinary circumstances. Adhering to precedent, I would begin the structural error analysis with an inquiry into whether the improper closure rendered the trial fundamentally unfair. This requires analyzing what impact, if any, the closure had on the proceeding and, ultimately, the trial. Complete closure of an entire portion of trial may be structural error because, in those instances, it is impossible to identify and evaluate the specific consequences flowing from the error, but prejudice is more likely. However, if a public trial violation is not structural error — i.e., if there is no indication that it rendered the trial fundamentally unfair or an unreliable vehicle for determining guilt — automatic reversal is not warranted. See, e.g., State v. Rainey, 180 Wn. App. 830, 845, 327 P.3d 56 (2014) (where public trial violation occurred at post trial suppression hearing, remand for new trial not appropriate; remanded for new hearing).
*485 B. Leads to unnecessary retrials where there has been absolutely no showing of prejudice
¶71 Our labeling of all public trial violations as structural is harmful because it has led to unnecessary reversals and retrials, even when there is absolutely no indication of prejudice.19 Currently, we have in our court two cases in which it is clear that there has been no prejudice and yet a majority of this court would reverse the convictions. See Shearer, 181 Wn.2d at 574-75 (lead opinion), 576-77 (concurrence).
¶72 In Shearer, the judge questioned juror 7 in chambers after she indicated that she would rather discuss sensitive domestic violence issues in private. Id. at 567-68 (consolidated with State v. Grisby). The judge asked if anyone objected to the in-chambers questioning, and neither defense nor the state objected. Id. In chambers, juror 7 revealed that her grandson was killed by his father in the home. Id. Defense moved to dismiss juror 7 for cause, the state did not object, and the juror was excused. Id. Similarly, in Grisby, the judge questioned one juror in chambers after a question arose as to whether a prior criminal conviction would disqualify the juror. Id. The trial judge, counsel, and Grisby went into the chambers with the juror for five minutes. Id. There is no record of what happened. Id. Subsequently, defense counsel used a peremptory challenge to dismiss the juror. Id.
¶73 I fail to see how interviewing one juror in chambers had any adverse impact on these proceedings. The questioning occurred in the presence of counsel and the judge. The defendant, through his counsel, had the opportunity to question the juror and challenge him or her for cause or peremptorily. And in both cases, defense counsel used *486challenges to dismiss the jurors as a result of the in-chambers questioning.
¶74 As with the case before us, two recent Court of Appeals cases involve defendants who opted to have jurors questioned privately. In State v. Herron, 177 Wn. App. 96, 104, 318 P.3d 281 (2013), the defendant was informed of his right to have voir dire conducted in the courtroom but expressly requested that jurors be questioned in chambers, believing he would learn more by having the inquiries made in private. The court properly held that Jerry Herron had knowingly and voluntarily waived his right to a public trial. Id. In In re Personal Restraint of Copland, 176 Wn. App. 432, 442-43, 309 P.3d 626 (2013) defense counsel asked the trial judge to close the courtroom to members of the media during the jury selection process to prevent contamination of potential jurors. The court held that Copland’s case presented “an even stronger argument for invited error” than the facts in Momah, 167 Wn.2d at 154-55, because the defendant actively pursued and participated in the error of which he complains. Copland, 176 Wn. App. at 442. Accordingly, the court dismissed the personal restraint petition. Id. at 452.
¶75 These Court of Appeals decisions uphold the spirit and purpose of the public trial right — to ensure a fair trial, to remind the officers of the court of the importance of their functions, to encourage witnesses to come forward, and to discourage perjury. State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005). None of these goals is necessarily jeopardized when counsel questions potential jurors in chambers in an attempt to encourage them to be more forthcoming about sensitive topics. This is particularly true where, as here, the defendant approved of the tactic and wanted to benefit from increased candor — Frawley waived his right to be present during the questioning because he thought jurors would be more forthcoming in his absence. The defendant certainly may be prejudiced by in-chambers voir dire, but such prejudice is not “conclusive,” nor should *487it be presumed. Indeed, this rule creates a disturbing win-win for the defendant. As I explained in my dissent in Paumier,
The majority would allow defense counsel to lie in the weeds, silently consenting to private questioning (and reaping the benefits of increased candor), while secretly nursing a public trial issue that would virtually guarantee success on appeal. This would allow any defense counsel who notices a public trial error like this one to remain quiet and gamble on a jury verdict, knowing that the public trial issue will allow a do-over once it is raised on appeal.
176 Wn.2d at 52 (footnote omitted).20
¶76 Blanket application of the structural error doctrine to public trial violations has led to the vacation of dozens of convictions, even where there has been absolutely no indication of prejudice. See State v. Smith, 181 Wn.2d 507, 527 n.18, 334 P.3d 1049 (2014) (concurrence). It is grossly inefficient to overturn these convictions. The Frawley case took almost a year to try from pretrial motions to verdict; involved 33 witnesses, 65 exhibits, and an initial pool of 60 jurors; and resulted in a first degree felony murder conviction. We disserve our justice system, principles of finality and fairness, the public, all participants to a trial, and especially the victims of crime by failing to engage in a meaningful inquiry to determine whether or not the defendant received a fair trial — that is, a trial that does credit to our justice system and to the concept of due process.
¶77 Labeling every public trial error as structural is a meat-cleaver approach to what necessarily must be a highly nuanced, case-by-case inquiry into whether a particular error requires reversal. In reality, there are many factors that bear on the multiple concerns implicated whenever there is public trial violation: importance of the right to the *488defendant when balanced against other competing rights, importance of the right to the public, and basic principles of fairness. We should consider all of these factors to determine whether the defendant has been prejudiced by the violation of a constitutional right before reversing a conviction for error.
C. Fails to reconcile competing constitutional interests
¶78 The lead opinion’s approach ignores competing constitutional rights. In fact, the right to a public trial is just one of many rights guaranteed by our constitution to persons accused of crimes. Among other rights are the right to trial by an impartial jury, the right to a speedy trial, and the right to a fair trial.21 See Const, art. I, § 22.
¶79 Generally, the constitutional guaranties of a public and fair trial advance the common goal of an effective and fair judiciary. However, these essential rights at times conflict. For example, allowing public access to all phases of trial potentially interferes with a defendant’s right to a fair and impartial jury due to adverse publicity, juror contamination, and juror privacy and safety concerns. See, e.g., State v. Slert, 181 Wn.2d 598, 607, 334 P.3d 1088 (2014) (“[questioning the jurors about their disqualifying knowledge in open court in front of the other jurors could have been potentially devastating to Slert’s right to a fair trial” due to contamination); Shearer, 181 Wn.2d at 567-68 (juror reluctant to answer questions regarding experience with domestic violence in open court).
¶80 Indeed, in-chambers voir dire can protect the defendant’s right to a fair and unbiased trial by encouraging potential jurors to be more forthcoming in responding to voir dire. Empirical studies have shown that prospective *489jurors often do not reveal sensitive information if required to do so in open court. See Paula L. Hannaford, Safeguarding Juror Privacy: A New Framework for Court Policies and Procedures, 85 Judicature 18, 23 (2001). Moreover, publicizing juror responses to voir dire questions could expose them to scorn or ridicule. See Press-Enter., 464 U.S. 501. The knowledge that their responses will be made public may inhibit or destroy the integrity of jurors’ responses to questions. See United States v. Layton, 519 F. Supp. 959, 961-62 (N.D. Cal. 1981). Consequently, the voir dire may not successfully elicit the information necessary to effectively screen jurors, which, in turn, may adversely affect the fairness of a trial.
¶81 When the right to a fair trial and the right to a public trial conflict, neither right is more deserving of constitutional protection. Trial courts are faced daily with the difficult task of preserving a criminal defendant’s right to a fair trial while safeguarding the constitutional mandate that our courts be open. Unfortunately, our open courts jurisprudence seems to have developed in a vacuum, ignoring the reality that many decisions require courts to balance important, competing constitutional interests.
¶82 Public access can also have adverse impacts on jurors’ constitutional right to privacy. See Press-Enter., 464 U.S. at 511-12 (acknowledging that juror privacy right might become sufficiently compelling to require limiting public access).22 Under article I, section 7 of the state constitution, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” This right of pri*490vacy extends to jury service; the public’s right of access to court records “is not absolute” but instead “shall be consistent with reasonable expectations of personal privacy as provided by article I, section 7 of the Washington State Constitution.” GR 31(a). To this end, GR 31(j) provides, “Individual juror information, other than name, is presumed to be private” and juror information can be obtained only “[u]pon a showing of good cause.” We should not ignore the many constitutional interests at stake in order to protect the one.
II. When error is not structural and the defendant does not object, RAP 2.5 is a procedural bar to appeal
|83 In accordance with controlling precedent, I would hold that structural error analysis is appropriate only when applied to extraordinary circumstances that render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. When a public trial violation is not structural error and a defendant does not object, RAP 2.5 controls and the defendant must show prejudice. State v. Coristine, 177 Wn.2d 370, 380, 300 P.3d 400 (2013).
¶84 Applying these principles to this case, I would hold that Frawley is not entitled to a new trial. The public trial error here was not structural, and Frawley did not object. Thus, RAP 2.5 applies. Under RAP 2.5, an appellate court need not review errors raised for the first time on appeal, but there is an exception for any “manifest error affecting a constitutional right.” RAP 2.5(a)(3). If an error is constitutional in nature, it can be reviewed for the first time on appeal only if it is “manifest,” meaning it “ ‘had practical and identifiable consequences in the trial of the case’ ” and can survive harmless error review. State v. O’Hara, 167 Wn.2d 91, 98-100, 217 P.3d 756 (2009) (quoting State v. Kirkman, 159 Wn.2d 918, 925, 155 P.3d 125 (2007)). In other words, a defendant who does not object must show actual prejudice resulting from the error. Id.
¶85 There is no indication of prejudice in Frawley. Closure occurred because the defense wanted the private ques*491tioning, and it was conducted for the defendant’s benefit.23 Defense counsel asked the court to waive his client’s presence for jury selection. The court noted that in its experience, jurors talk more freely about sensitive issues in private. In light of this, Frawley waived his own right to be present; arguably, the public’s presence would have similarly discouraged jurors from being forthright with their answers. Moreover, only jurors who answered yes to any question in the questionnaire, which was designed to identify bias or contamination, were called into chambers. Thus, the closure furthered Frawley’s right to a fair trial and I would find that, under the circumstances, this right outweighed the defendant’s right to a public trial.
CONCLUSION
¶86 The lead opinion holds that all public trial errors are structural, tainting the entire proceeding, rendering the trial fundamentally unfair, and requiring automatic reversal. The lead opinion fails to appreciate the limited nature of structural error analysis and fails to consider that public trial violations take on many forms. Questioning jurors in chambers on sensitive topics with the defendant’s agreement is not fundamentally unfair in the same way as, for example, complete denial of counsel or a biased trial judge. We should not presume prejudice where, had the trial judge performed a Bone-Club analysis, there is every reason to believe that closure would have occurred in exactly the same manner.
¶87 Here, because the error was not structural, we should instead apply the well-developed and more precise *492rales we have incorporated into RAP 2.5. RAP 2.5 requires that Frawley’s and Applegate’s convictions be affirmed.
¶88 I respectfully dissent.
Madsen, C.J., concurs with Wiggins, J.
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
The Supreme Court has reserved the “structural error” label for truly egregious errors. Indeed, there Eire cases where there was arguably more of a showing of prejudice than in any of our cases here, and yet the Court did not label the errors as structural. In Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446, 173 L. Ed. 2d 320 (2009), the Court held that a trial judge’s good faith error in denying defendant’s peremptory challenge to a prospective juror, who subsequently served as the foreperson on the jury that found defendant guilty of first degree murder, was not a structural error that necessarily rendered defendant’s criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence, as would warrant reversal.
That is because the remedy for structural error is automatic reversal and remand for a new trial; this remedy is truly automatic because, unlike most constitutional errors, structural errors are not subject to harmless error review. Lead opinion at 459; see also Paumier, 176 Wn.2d at 45-46 (Wiggins, J. dissenting).
In Wise and Paumier, the dissents pointed out that the defendants actually benefited from the closures because prospective jurors may have been more candid about hardships and biases in private questioning. Wise, 176 Wn.2d at 25 (J.M. Johnson, J., dissenting); Paumier, 176 Wn.2d at 52 (Wiggins, J., dissenting).
While all of these rights are in a broad sense for the protection of the public generally, they are in a special sense privileges accorded to the accused. This is one of the reasons I agree with Justice Gordon McCloud in her concurrence/dissent that a defendant may knowingly and intelligently waive his or her right to a public trial.
In State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009) (plurality opinion), we reversed a child rape and molestation conviction because jurors were questioned in chambers regarding their experience with sexual abuse. Justice Charles Johnson dissented, finding that the plurality “dismisse[d] out of hand the legitimate privacy interests of jurors.” Id. at 237. Justice Johnson explained that juror privacy and candidness could be particularly important in cases that involve extremely sensitive matters and that these interests could interfere with a defendant’s right to an impartial jury. Id. Justice Johnson concluded that the trial judge balanced the jurors’ interest in privacy with the defendant’s right to a public trial by an impartial jury and properly questioned jurors in chambers. Id.
The record does not reflect whether or not the courtroom was ever actually closed to the public. In his opening remarks to counsel before testimony began, the judge expressly addressed the courtroom audience, saying that “the court is always open to the public as it should be. I believe our court should always be open to the public, and that’s why I allow the press to come into the courtroom and that’s important.” 6 Verbatim Report of Proceedings at 1068.