¶35 (dissenting) — The lead opinion adheres to flawed precedent to affirm the Court of Appeals and reverse the convictions in these cases. First, it holds that Gregory Shearer and Henry Grisby III can raise a public trial violation on appeal even though they did not object at trial. Lead opinion at 569-70. Second, it holds that a public trial right violation is structural error so there is no such thing as a de minimis violation. Id. at 572-73.1 respectfully dissent.
Wiggins, J.¶36 I agree with Justice González that “our constitution does not demand we vacate convictions for every error, no matter how small.” Concurrence/dissent at 577. Thus, like Justice González, I would affirm Shearer’s conviction, but I would do so specifically because Shearer had a chance to object but failed to do so and there has been no showing of actual prejudice arising from the alleged error. In addition, I write separately because I would affirm the conviction in Grisby for the same reasons — the alleged violation was not structural error, and Grisby did not object to the closures at trial, nor has he satisfied the requirements of RAP 2.5.
¶37 As I explain in my dissent in State v. Paumier, 176 Wn.2d 29, 45-48, 288 P.3d 1126 (2012) (Wiggins, J., dissenting), 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 viola*580tion is not structural error and a defendant does not object, RAP 2.5(a)(3) requires the defendant to show actual prejudice before he or she is entitled to relief.
¶38 Here, the errors were not structural. In both cases, counsel and the judge met with a single juror in chambers to discuss potentially sensitive issues. Thus, defendants, through their counsel, had the opportunity to question and excuse jurors for cause or peremptorily. Indeed, following the interviews, Shearer’s defense counsel exercised a for-cause challenge to excuse juror 7 and Grisby’s defense counsel exercised a peremptory challenge to excuse juror 18. The court has never explained why in-chambers questioning of a single juror on sensitive subjects falls into the class of constitutional errors that infect the entire trial, such as the complete denial of counsel, a coerced confession, a biased judge, or denial of self-representation at trial. It is even more difficult to see how the mere failure to conduct a Bone-Club6 analysis at trial similarly infects the entire trial process or deprives defendants of “ ‘basic protections’ ” such that “ ‘no criminal punishment may be regarded as fundamentally fair.’ ” Neder v. United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)). This is especially true when it appears that the defendant actually benefited from the questioning. Thus, I would hold that neither error was structural.
¶39 In addition, neither Shearer nor Grisby objected to the in-chambers questioning at trial and there is no indication that the limited questioning adversely impacted the proceedings. We should not presume prejudice where, had the trial judge performed a Bone-Club analysis, there is every reason to believe that the trial court would have avoided voir dire in chambers or would have evaluated the proposed in-chambers proceeding under Bone-Club and concluded that it satisfied the Bone-Club factors. In either *581case, the conviction would almost certainly have been affirmed. Indeed, the voir dire process used by the trial court in these cases is similar to the process used in many Washington courts and the process endorsed in Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 512, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984), wherein the United States Supreme Court held that the jury selection process must be open but that when dealing with sensitive matters, limited questioning could be conducted on the record in chambers with counsel present.
¶40 We must never shrink from ordering a new trial when the violation of fundamental constitutional rights has prejudiced a defendant. In re Pers. Restraint of Morris, 176 Wn.2d 157, 179-80, 288 P.3d 1140 (2012) (Wiggins, J., dissenting). But, if a defendant cannot show prejudice, we should not order a new trial. Id. Here, defendants and their counsel failed to object at trial to the in-chambers questioning of a single juror who, in both cases, was eventually dismissed by defense counsel. The limited in-chambers voir dire in these cases was not structural error, and on appeal, neither Grisby nor Shearer has shown any prejudice arising from the alleged closure. Thus, I would reverse the Court of Appeals in both cases and affirm the convictions.
¶41 I dissent.
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).