¶28 (dissenting) — I respectfully dissent from the majority’s reversal of Slert’s conviction and its remand for a fourth trial, which, in my view, the record before us does not support. More specifically, I disagree with the majority’s (1) assumption that the trial court’s pretrial consultation with counsel in chambers produced its later excusal of four jurors on the record, (2) holding that such consultation constituted “part of the jury selection' process *780to which the public trial right applied,”15 and (3) conclusion that the trial court’s putting four jurors’ excusáis on the record in open court in Slert’s presence did not preserve Slert’s public trial right.
¶29 I would hold that (1) the trial court’s pre-voir-dire excusal of four jurors was purely “administrative” or “ministerial,” not part of “voir dire” required to be conducted in open court; or, (2) alternatively, even if the four jurors’ excusáis were part of the jury selection process required to be conducted in open court, the excusáis were sufficiently announced in open court in Slert’s presence and they were not structural error warranting reversal and retrial. I would affirm.
FACTS
I. Pretrial Components of Jury Selection Process
A. Pretrial Hearings in Open Court, January 6 and 21
¶30 As the majority notes, on January 6 and 21, 2010, the trial court conducted pretrial hearings in Slert’s presence in open court, during which the parties discussed the nature and content of the jury questionnaires and general voir dire procedures for Slert’s trial. Slert drafted and proposed a jury questionnaire designed to identify venire members who had heard about his highly publicized previous trials, both of which had resulted in convictions for the same crime for which he was again being retried. The State agreed to Slert’s jury questionnaire, with one proposed edit: The State asked the trial court to refer to Slert’s prior trials as “proceedings” so the prospective jurors would not know that Slert had been previously convicted. Verbatim Report of Proceedings (VRP) (Jan. 21, 2010) at 4.
*781¶31 To avoid “taint[ing]’’16 the rest of the jury pool, Slert suggested conducting in-chambers voir dire of individuals whose juror questionnaire responses indicated knowledge about Slert’s prior convictions; the trial court neither granted nor denied Slert’s request at this time.17 Slert, represented by counsel, was present for both pretrial hearings and voiced no objections.
B. Pretrial Conference in Chambers and in Open Court, January 25
¶32 A few days after the January 21 pretrial hearing, the trial court apparently held a pretrial conference in chambers. The trial court clerk’s minute entry for January 25 states, “Pretrial conference was held in chambers.” Clerk’s Papers (CP) at 194. This minute entry does not, however, note what was discussed during this pretrial conference. Nor, contrary to the majority’s assumption, do these minute entries say that this pretrial conference in chambers resulted in the excusal of the four jurors based on their answers to the questionnaires.
¶33 The next minute entries, apparently reflecting proceedings in open court when court was “[i]n session,” state: (1) “Witnesses excluded except for the chief investigating officer”; (2) “[c]ourt gave the defendant his rights for trial”; and (3) “[t]he defendant acknowledged understanding his rights.” CP at 194. These minute entries parallel the verbatim report of proceedings recounting of the sequence of events; and both indicate that Slert was present throughout. Similarly, these minute entries do not mention that four jurors were excused during the earlier pretrial conference in chambers.
*782C. Pre-Voir-Dire Administrative Excusal of Four Jurors, January 25
¶34 Slert remained present in open court when, before the venire was brought into the courtroom,18 the trial court announced on the record that, “after consultation with counsel” and as “agreed by counsel,” it had “excused” four jurors “for cause” “based on [their] answers” to the questionnaires, three from the “primary panel” and one from the “alternate panel.” VRP (Jan. 25, 2010) at 5; CP at 194. Again, Slert voiced no objection.
¶35 Neither the clerk’s minute entries nor the verbatim report of proceedings state where or when this “consultation with counsel”19 had taken place, whether it had involved any interactive juror questioning, or whether Slert had or had not been present or had offered personal input in addition to his counsel’s participation. Yet the majority assumes (1) as a matter of law, that the trial court’s earlier in-chambers conference, noted in the clerk’s minute entry as having occurred before court was “[i]n session,”20 was “part of the jury selection process to which the public trial right applied”21; and (2) as a matter of fact, that the trial court excused the four jurors in chambers rather than in open court. The record does not support this latter factual assumption; therefore, the former legal assumption is not supportable. State v. Madarash, 116 Wn. App. 500, 509, 66 P.3d 682 (2003).
¶36 As I describe later, the right to a public trial has generally encompassed only “voir dire” and other interac*783tive and adversarial aspects of jury selection. Here, however, the record does not reflect that any individual juror questioning occurred in chambers, despite Slert’s request for such procedure; on the contrary, the record strongly suggests that no individual juror questioning occurred in chambers. First, as I previously noted, the verbatim report of proceedings does not mention any in-chambers jury voir dire; and the clerk’s minute entry mentions only a “[p]retrial conference ... in chambers,” with no corresponding mention of the subject discussed or action taken. CP at 194 (emphasis added). More specifically, this minute entry says nothing about jurors in general or excusing four jurors in particular during this in-chambers conference.
¶37 Second, both the verbatim report of proceedings and the minute entries reflect only that, after court was in open public session, the trial court stated on the record that, with both counsel’s agreement, it had excused four jurors based on their questionnaire responses; neither the verbatim report of proceedings nor the minute entries recite a location where this agreement between the trial court and counsel had occurred.22 Furthermore, neither the clerk’s minute entries nor the verbatim report of proceedings link *784this excusal of four jurors with the “[p]retrial conference in chambers”23 or even hint that the excusal of the four jurors was the product of interactive voir dire questioning. On the contrary, the record strongly suggests that these four jurors’ excusáis were based solely on their passive responses to the questionnaire that Slert had designed to identify potential jurors tainted by pretrial publicity.
¶38 That neither the trial court nor counsel had yet questioned any prospective jurors about their questionnaire responses is also a reasonable inference from Slert’s counsel’s later comments on the record and the trial court’s response. After the trial court announced on the record that it had excused the four jurors after consulting with counsel, Slert reiterated his pretrial suggestion that the parties question 15 venire members away from the other jurors, “in chambers,”24 because they might have known something about Slert’s case. Despite the 15 jurors’ questionnaires apparently having indicated knowledge of Slert’s pretrial publicity, the trial court flatly refused individual juror in-chambers questioning and clearly explained that individual questioning of these jurors would occur in open court.25
*785II. Voir Dire in Open Court
¶39 Before voir dire began, the trial court took special care to be sure that Slert, who used a hearing assistance device, could hear the juror questioning. The trial court also inquired to ascertain whether the guards’ inadvertent bringing Slert into an unused courtroom where the alternate jurors had been filling out their questionnaires had adversely influenced them.
¶40 Having refused Slert’s request for in-chambers voir dire, the trial brought the 15 potentially tainted venire members into the courtroom individually, swore them in, and allowed counsel to conduct voir dire in Slert’s presence on the record in open court. This voir dire consumed much of the day and filled 55 pages of the verbatim report of proceedings. Later, the trial court brought the remaining venire of some 40 jurors into court, swore them under oath, and began general voir dire, again in Slert’s presence in open court. At no time did Slert or anyone else object to this process.
ANALYSIS
I. Voir Dire Part of, not Coextensive with, Jury Selection
A. Irby
¶41 Relying on State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011), the majority summarily concludes, “[T\he in-chambers conference and the dismissal of the jurors were part of the jury selection process to which the public trial right applied.” Majority at 774 (emphasis added). With all due respect, the record does not support (1) that the ambiguous *786“in-chambers conference” was “part of the jury selection process to which the public trial right applied”; or (2) that the trial court’s “consultation with counsel,” which the majority concludes precipitated the four jurors’ excusal, occurred in chambers.26 VRP (Jan. 25, 2010) at 5. Regardless of where this consultation occurred, the salient point is that the trial court put the excusal of the four jurors on the record in open court in Slert’s presence; and Slert neither objected nor asked for details.
¶42 In contrast with the majority’s assumption, a reasonable inference drawn from the trial court’s adamant refusal of Slert’s express request to question individual jurors in chambers is that the earlier “in-chambers conference”27 did not involve juror “voir dire.” Therefore, this “in-chambers conference,” which did not clearly involve juror questioning or the eventual excusal based on the four jurors’ answers to the questionnaires, was not part of the jury selection process to which the public trial right applied.28
*787B. “Voir Dire” Not Coextensive with “Jury Selection”
¶43 Some cases use the terms “jury selection” and “voir dire” interchangeably when addressing the parts of the process that must occur in open court. But there are significant differences between the entire “jury selection” process from beginning to end, which includes administrative processes and the critical “voir dire” component, which focuses on seeking information from individual jurors as part of the adversarial process.
¶44 Dissenting in Irby, Chief Justice Madsen explains the early administrative stages of jury selection as follows:
In our state, as in other jurisdictions, jury selection begins with a general screening process that eliminates from jury service those who do not meet statutory qualifications. RCW 2.36.070 sets forth basic jury qualifications, which include that the individual is at least 18 years old, a citizen of the United States, a resident of the county in which he or she is to serve, able to communicate in English, and the individual has not been convicted of a felony or not had civil rights restored. Other reasons for excusal are within the trial court’s discretion.
Irby, 170 Wn.2d at 889-890 (Madsen, C.J., dissenting). Similarly, RCW 2.36.100(1) and (3) give the trial court authority to excuse potential jurors for “undue hardship, extreme inconvenience, public necessity, prior jury service at least twice in the preceding twelve months,” or for “ ‘any reason deemed sufficient by the court.’ ” Irby, 170 Wn.2d at 890 (some emphasis omitted) (quoting RCW 2.36.100(1), (3)). As Chief Justice Madsen further notes:
This law . . . “vests ... a wide discretion to be exercised in the matter of excusing persons summoned for jury service from the performance of that duty.” State v. Ingels, 4 Wn.2d 676, 682-83, 104 P.2d 944 (1940) (emphasis added); accord State v. Rice, 120 Wn.2d 549, 562, 844 P.2d 416 (1993); see State v. Roberts, 142 Wn.2d 471, 518-19, 14 P.3d 713 (2000) (a trial court’s decision to excuse members of the jury venire is reviewed under an abuse of discretion standard).
Irby, 170 Wn.2d at 890 (second alteration in original).
*788¶45 The reasons for which a trial court may excuse potential jurors administratively are generally nondebatable reasons that bear no relationship to the defendant’s case and, therefore, do not generally warrant an adversarial setting in open court. See Irby, 170 Wn.2d at 887-88, 890. Thus, a defendant’s right to a public trial does not extend to “purely ministerial or legal issues that do not require the resolution of disputed facts.” State v. Sadler, 147 Wn. App. 97, 114, 193 P.3d 1108 (2008) (emphasis added). In contrast to pretrial administrative excusáis at the trial court’s discretion, the voir dire portion of the jury selection process is a distinctly adversarial process in which both counsel and the trial court may actively question prospective jurors, elicit direct responses, and “scrutinize not only [the jurors’] spoken words but also [their] gestures and attitudes” to ensure that the defendant receives an impartial jury. Gomez v. United States, 490 U.S. 858, 875, 109 S. Ct. 2237, 104 L. Ed. 2d 923 (1989).
C. Other Case Law on Public Trial Rights; Inadequate Record Here
¶46 Washington courts have repeatedly recognized that a defendant’s “public trial right applies to the evidentiary phases of the trial, and to other ‘adversary proceedings,’ ” including voir dire. State v. Rivera, 108 Wn. App. 645, 652-53, 32 P.3d 292 (2001) (emphasis added) (quoting Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997)). Thus, most Washington cases finding violations of a defendant’s public trial right in relation to jury selection have involved clear public exclusion from actual juror questioning.29
*789¶47 Slert’s inconclusive record suggests that the trial court may have administratively excused four jurors based solely on their passive written responses to juror questionnaires, not in response to interactive juror voir dire questioning. There is no clear indication in the record (1) that any “ ‘adversary proceedings’ ”30 occurred during either the pretrial conference “in chambers”31 or the trial court’s “consultation with counsel”32 during which counsel agreed to excuse the four prospective jurors; or (2) that the trial court and counsel conducted any voir dire of these four jurors before excusing them (highly unlikely in light of the trial court’s flat refusal of Slert’s request to voir dire individually in chambers 15 jurors whose questionnaires indicated knowledge of pretrial publicity).
¶48 In Bennett, we declined to find a violation of the defendant’s public trial rights based on an inadequate record.33 The record reflected that the parties had an “in-chambers conference about jury instructions”; but it did not elaborate beyond the trial court’s later on-the-record statement that the court and counsel “ ‘had an opportunity *790to go over the instructions’ and that the instructions had ‘been copied and collated.’ ” Bennett, 168 Wn. App. at 205. Based on this record, which I note was more specific than the one we have here, we surmised that the “in-chambers conference” could have involved “purely ministerial or administrative matters” or it could have involved discussions about evidence or disputed facts related to the jury instructions; nevertheless, we rejected Bennett’s suggestion that we infer that nonministerial matters were discussed. Bennett, 168 Wn. App. at 206. Although Bennett did not involve excusal of potential jurors, the rationale pertains here, namely, that (1) we cannot base appellate decisions on conjecture about what may have occurred during discussions for which we have no clear record; and (2) we should not infer that nonministerial matters were discussed where the record does not clearly show this happened.
¶49 Here, the record before us does not show whether the trial court’s “in-chambers conference” involved “purely ministerial or administrative matters,” any juror excusáis at all (whether under RCW 2.36.100(1) or for other reasons), or discussions about disputed facts related to the four later-announced excused jurors’ fitness to serve that should have occurred during in-court voir dire.34 See Bennett, 168 Wn. App at 206. As in Bennett, the nonspecific clerk’s minute entries for Slert’s trial do not justify surmising that any matters implicating Slert’s public trial right, including voir dire, occurred during the pretrial conference in chambers. On the contrary, as previously noted, the Slert trial court’s unequivocal refusal to question any individual jurors in chambers justifies our surmising instead that the *791pretrial conference in chambers did not include “any [such] issues, factual or legal.” Bennett, 168 Wn. App at 206.35
II. No Reversal Required under Momah36 or Paumier37
¶50 Even if the trial court’s pretrial excusal of four jurors constituted a courtroom closure that denied Slert’s right to a public trial, I disagree with the majority that the closure was a “structural error” requiring reversal of Slert’s conviction. Majority at 779. Article I, section 22 of the state constitution guarantees a criminal defendant a “ ‘public trial by an impartial jury.’ ” Momah, 167 Wn.2d at 152 (first emphasis added) (quoting Wash. Const. art. I, § 22). The right to public trial and the right to an impartial jury are interrelated but distinct. Momah, 167 Wn.2d at 152. If these two rights come into conflict, we must “harmonize” them and construe them “in light of the central aim of a criminal proceeding: to try the accused fairly.” Momah, 167 Wn.2d at 152-53 (emphasis added).
¶51 A defendant is entitled to a fair, not a perfect, trial. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984). And because the public trial right is “primarily for the benefit of the accused,” we “permit the accused to make tactical choices to advance his own interests” and to achieve what he perceives as the fairest result for his trial. Momah, 167 Wn.2d at 148, *792153. Some early public-trial case law broadly stated that “[prejudice is presumed” and that an appellate court must automatically “remand for a new trial”38 anytime a trial court fails to apply the Bone-Club factors before closing the courtroom. State v. Bone-Club, 128 Wn.2d 254, 261-62, 906 P.2d 325 (1995) (citing State v. Marsh, 126 Wash. 142, 146-47, 217 P. 705 (1923)). But this bright line rule calling for automatic reversal no longer applies.
A. Momah
¶52 Three years ago, a majority of our Supreme Court recognized that not all courtroom closures are “fundamentally unfair,” that automatic reversal of a conviction is not required unless the courtroom closure was a “structural” error, and that the appellate court should “devise [ ] a remedy appropriate to [the] violation” for nonstructural errors. Momah, 167 Wn.2d at 149. An error is “structural” when it “ ‘necessarily render [s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ ” Momah, 167 Wn.2d at 149 (alteration in original) (internal quotation marks omitted) (quoting Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)). Conversely, then, an error would not be structural, warranting reversal and a new trial, if it did not “ ‘necessarily render [ ]; a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ ” Momah, 167 Wn.2d at 149 (alteration in original) (internal quotation marks omitted) (quoting Recuenco, 548 U.S. at 218-19). Our Supreme Court held that conducting individual juror voir dire in chambers did not constitute structural error where the defendant had “affirmatively accepted the closure, argued for the expansion of it, actively participated in it, and sought [the] benefit from it." Momah, 167 Wn.2d at 156.
¶53 I strongly disagree with the majority’s conclusion that Momah does not control any courtroom closure that *793they surmise might have occurred here; and their reliance on the plurality decision in Strode39 is misplaced.40 On the contrary, even if the Strode facts aligned with Slert’s, the Strode plurality decision would provide no precedent controlling our decision here.41 Instead, we are bound by the majority decision in Momah, which, as noted above, requires a “remedy appropriate to [the ]violation,”42 not automatic reversal. Following Momah, I fail to see how the process that the trial court followed below denied Slert a fair trial or prejudiced him in any way. On the contrary, the record clearly shows that all parties involved undertook extra cautionary measures to assure that Slert had an impartial jury and a fair trial, following Slert’s “tactical choices to advance his own interests” and to achieve what he perceived as the fairest result for his trial.43 Momah, 167 *794Wn.2d at 148, 153.1 would hold that Slert’s case falls within the parameters of Momah and that any courtroom closure that may have occurred was not structural and, thus, does not require reversal of his conviction and another retrial.
B. Paumier
¶54 I also cannot agree with the majority’s reliance on our split panel’s conclusion in Paumier that the United States Supreme Court’s decision in Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010), “sub silentio” overruled our State Supreme Court’s decision in Momah such that automatic reversal is required whenever a “ ‘trial court fails to sua sponte consider reasonable alternatives [to closure] and fails to make the appropriate findings.’ ” Majority at 776 (quoting Paumier, 155 Wn. App. at 685 (citing Presley, 558 U.S. at 215)). As both Judge Quinn-Brintnall and I have previously noted in dissents, Presley did not have such a far-reaching holding. Paumier, 155 Wn. App. at 688-90 (Quinn-Brintnall, J, dissenting); *795State v. Leyerle, 158 Wn. App. 474, 490, 242 P.3d 921 (2010) (Hunt, J., dissenting). The trial court excluded Presley’s uncle from voir dire over Presley’s express objection and his uncle’s request for “ ‘some accommodation.’ ” Presley, 558 U.S. at 210 (internal quotation marks omitted). The Supreme Court concluded that excluding Presley’s uncle from voir dire was a courtroom closure that violated Presley’s Sixth Amendment44 right to a public trial. Presley, 558 U.S. at 216.
¶55 The issue before the Supreme Court was whether Presley’s Sixth Amendment right to a public trial extended to voir dire and whether a trial court must consider alternatives to a courtroom closure when a defendant proffers no alternatives for the court to consider. Presley, 558 U.S. at 211. The Supreme Court did not, however, issue a bright line rule about the appropriate remedy for all courtroom closures, as the majority here implies. Nor did Presley expressly or impliedly overrule the Court’s previous holding in Waller v. Georgia, 467 U.S. 39, 50, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), in which it had adopted an approach similar to that in Momah and had required a “remedy . . . appropriate to the violation” for courtroom closure cases. Therefore, under both Presley and Momah, a “remedy appropriate to the violation” for courtroom closure cases, not automatic reversal, is still the standard and all that is required under federal and state law.
¶56 Furthermore, the United States Supreme Court has frequently admonished both (1) that lower courts should not speculate or conclude that its “more recent cases have, by implication, overruled an earlier precedent” and (2) that we should follow the case that directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions. Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct. 1997, 138 L. Ed. 2d 391 (1997) (emphasis added). Far from overruling the approach that our Washington Supreme *796Court took in Momah, Presley further supports the “remedy appropriate to the violation” standard, not automatic reversal. Accordingly, I respectfully disagree with the majority’s conclusion that Presley “sub silentio”45 overruled Momah or that its holding requires the remedy that the majority chooses here.
¶57 More importantly, as we recently held in Bennett, we should not reverse and remand for a new trial where, as here, the record does not clearly show a violation of Slert’s rights. In my view, nothing in the record or the law warrants reversal and remand for a fourth trial 12 years after Slert’s original conviction. I would affirm.
Review granted at 176 Wn.2d 1031 (2013).
Majority at 774.
VHP (Jan. 6, 2010) at 4.
Instead, the trial court stated that the jurors would receive and complete their questionnaires the first day of trial, set for January 25.
The following parts of the record suggest that the jury was not yet in the courtroom: (1) the trial court’s statement before these pretrial discussions, “[W]hen the jury panel comes in...,” and (2) Slert’s counsel’s later suggestion that the trial court “bring the panel in.” VRP (Jan. 25, 2010) at 4, 11.
VRP (Jan. 25, 2010) at 5.
CP at 194.
Majority at 774.
Although the trial court clerk’s minute entry states that the four jurors were excused “for cause” and the verbatim reports of proceedings suggests that the excusáis were based on the jurors’ questionnaire responses, neither the minute entry nor the related verbatim reports of proceedings explains what type of “cause” these excusáis entailed. CP at 194. Excusal could have been for reasons unrelated to the specifics of Slert’s trial because, when the court session began shortly thereafter, (1) Slert reminded the trial court that they had not yet dealt with 15 potential jurors whose questionnaires indicated knowledge about pretrial publicity covering his case; and (2) the trial court unequivocally vetoed Slert’s suggestion that they voir dire these 15 jurors individually in chambers. This colloquy strongly suggests that (1) the trial court did not and would not engage in voir dire in chambers; and (2) the trial court’s previous “consultation with counsel,” after which with their consent it had “excused” four jurors, had not involved such objectionable off-the-record in-chambers voir dire. VRP (Jan. 25, 2010) at 5.
I agree with the majority that counsel and the trial court likely excused the four jurors for cause because, according to Slert’s counsel’s comments on the record, their juror questionnaire answers had “indicated knowledge of [Slert’s] prior court trials.”VRP (Jan. 25,2010) at 11. But I disagree with the majority’s transforming this likelihood into a certainty on the silent record before us. Despite this hint, the record does not definitively show the actual cause for excusing these four jurors; *784nor does the record clearly show that these four excusáis were the result of out-of-court voir dire. In short, this incomplete record on appeal does not justify reversal and retrial based on speculation that the steps counsel and the trial court took to provide Slert with a fair and impartial jury might have violated his rights.
CP at 194.
VRP (Jan. 25, 2010) at 11.
VRP (Jan. 25, 2010) at 10-12 reflects the following eolloquoy:
[SLERT:] [W]e still haven’t dealt with the responses to the questionnaire.
And what I would like to do, I’ve got a list of IB jurors that responded that they knew something about the case based on publicity. ... 7 would want to have those IB interviewed in chambers individually.
And I would — because of the situation we’re in now, I would suggest we ... bring the panel in, start with number three and start calling them in [for questioning]. We can probably do it in here [in the court] rather than doing it in chambers.
[COURT:] Yeah. We’re not doing it in chambers.
*785[COURT:] [W]e’ll go through this process where we will bring the jurors in [to the court] individually and ask them some follow-up questions about the questionnaire [responses],
(Emphasis added.)
Nor does the record explain whether this consultation was a side-bar conference in open court or at some other location.
Majority at 774.
I agree with the majority’s admonition about refraining from conflating a defendant’s right to be present and his and the public’s rights to a public trial. Nevertheless, Irby’s actual holding does not apply here. Irby argued in Division One of our court that the trial court’s e-mail exchange with counsel about juror selection and questionnaires violated his right to be present and his right to a public trial under the state and federal constitutions; but Division One of our court based reversal of his conviction on only one of these two arguments, namely violation of only his right to be present at that stage of the proceedings in that case. Irby, 170 Wn.2d at 879. Thus, Irby’s earlier asserted public-trial-right argument was not before the Supreme Court.
Although Irby discusses the use of juror questionnaires and the portion of jury selection for which a defendant has a due process right to be present, Irby does not involve any discussion about a defendant’s right to a public trial. See Irby, 170 Wn.2d at 880-84. Furthermore, unlike the known facts here, the record in Irby more clearly showed that Irby had not been present for or privy to counsel’s and the court’s e-mail exchange about juror selection and questionnaires.
See, e.g., State v. Leyerle, 158 Wn. App. 474, 242 P.3d 921 (2010) (voir dire of juror in court hallway violated public trial right); State v. Paumier, 155 Wn. App. 673, 230 P.3d 212 (individual voir dire of jurors in chambers violated public trial right), review granted, 169 Wn.2d 1017 (2010); State v. Bowen, 157 Wn. App. 821, 239 P.3d 1114 (2010) (same); State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009) (same); State v. Erickson, 146 Wn. App. 200, 189 P.3d 245 (2008) (individual voir *789dire of jurors in jury room violated public trial right); State v. Duckett, 141 Wn. App. 797, 173 P.3d 948 (2007) (same); State v. Brightman, 155 Wn.2d 506, 122 P.3d 150 (2005) (public trial right violated when entire voir dire closed to all spectators); In re Pers. Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004) (same). But see State v. Momah, 167 Wn.2d 140, 217 P.3d 321 (2009) (individual voir dire in chambers was not “structural error” and did not violate public trial right), cert. denied, 131 S. Ct. 160 (2010).
In addition, the United States Supreme Court considered only whether the defendant’s Sixth Amendment right to a public trial applied to “the voir dire of prospective jurors.” Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 723, 175 L. Ed. 2d 675 (2010).
Rivera, 108 Wn. App. at 652 (quoting Ayala, 131 F.3d at 69).
CP at 194.
VRP (Jan. 25, 2010) at 5.
As we noted in State v. Bennett, 168 Wn. App. 197, 206, 275 P.3d 1224 (2012):
In order to obtain effective review of an in-chambers conference, the parties should make an adequate record in the trial court about what transpired during any conference so we can determine whether the conference dealt with purely ministerial issues or involved discussion or resolution of disputed facts or legal issues.
As previously explained, the clerk’s minute entries comprised only two short, but separate and unrelated, notations, the first reporting that the trial court held a “[p] retrial conference ... in chambers” and the second (following several lines describing advising Slert about his trial rights) reporting that four jurors “were excused for cause and agreed by counsel.” CP at 194. This second entry however, did not mention where or when this juror excusal occurred; more importantly, it does not state that the excusal occurred during the earlier reported “conference ... in chambers.” CP at 194.
The majority notes that the record does not show whether Slert was present during the in-chambers conference or that his counsel had consulted with him before later agreeing with the trial court to excuse the four jurors. The majority here asserts, “ ‘[W]here . . . personal presence is necessary in point of law, the record must show the fad ” to support its conclusion that the “in-chambers conference and resulting dismissal of jurors violated Slert’s right to be present during critical stages of the proceedings.” Majority at 775 (emphasis added) (alteration in original) (internal quotation marks omitted) (quoting Irby, 170 Wn.2d at 884). This conclusion is at odds with our holding in Bennett that we will not infer from an inadequate record that a defendant’s rights were violated, 168 Wn. App. at 206-07.
State v. Momah, 167 Wn.2d 140, 217 P.3d 321 (2009), cert. denied, 131 S. Ct. 160 (2010).
State v. Paumier, 155 Wn. App. 673, 230 P.3d 212, review granted, 169 Wn.2d 1017 (2010).
Orange, 152 Wn.2d at 814.
State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009) (plurality opinion).
Our Supreme Court reached a different result in Strode, a plurality opinion issued the same day as Momah. In Strode, the trial court and counsel had conducted individual voir dire of 11 prospective jurors in chambers to ensure “confidentiality” and that the jurors’ responses to a juror questionnaire (asking intimate details about the jurors’ exposure to sexual abuse) would not be “ ‘broadcast’ ” in front of the whole jury panel. Strode, 167 Wn.2d at 224. Under those facts, the plurality concluded that conducting voir dire in chambers was (1) a courtroom closure that violated Strode’s right to a public trial, and (2) structural error, because “the record [did] not show that the court considered the [defendant’s] right to a public trial” or that it balanced this public trial right “in light of [Strode’s] competing interests” in having an impartial jury. Strode, 167 Wn.2d at 235 (Fairhurst, J., concurring).
I respectfully disagree with the majority’s conclusion that Slert’s facts are more similar to the plurality decision in Strode than to the majority decision in Momah. Strode’s record was “devoid” of any showing that the trial court had considered his public trial interests — as opposed the jurors’ confidentiality interests — before it conducted voir dire in chambers. Strode, 167 Wn.2d at 228. Here, in contrast, the record indicates that the trial court did consider Slert’s public trial right when it flatly refused his request to voir dire in chambers 15 potentially prejudiced jurors.
See State v. Zakel, 61 Wn. App. 805, 808-09, 812 P.2d 512 (1991), aff’d, 119 Wn.2d 563, 834 P.2d 1046 (1992); see also Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977).
Momah, 167 Wn.2d at 149.
Here, as in Momah, the trial court and both counsel exhibited a common concern for balancing and safeguarding Slert’s right to a public trial and his right to an impartial jury. Slert’s counsel originally proposed a juror questionnaire designed to reveal jurors who knew information about Slert’s previous trials to *794avoid “taint[ing]” the rest of the jury pool; the State assented without protest, suggesting one small edit in the questionnaire wording to further this goal. VRP (Jan. 6, 2010) at 4.
The record does not show who proposed the pretrial in-chambers conference or that the excusal of four jurors resulted from this in-chambers conference. But assuming, without agreeing as the majority asserts, that it was this pretrial conference that resulted in excusing the four jurors, the record shows that Slert’s counsel “actively participated,” based on the trial court’s later statement on the record that it had excused four jurors “after consultation with counsel.” VRP (Jan. 25, 2010) at 5 (emphasis added). The record also shows that Slert was present when the trial court made this announcement on the record in open court and that he did not object, thus, tacitly, at least, approving these juror excusáis.
Further assuming, without agreeing with the majority, that the trial court’s • “consultation with counsel” was a courtroom closure, Slert twice advocated an even more “expansive” “courtroom closure” when he asked the trial court to conduct individual voir dire in chambers of 15 prospective jurors with knowledge of his prior trials to keep them from tainting the rest of the venire. See VRP (Jan. 6, 2010) at 3-4; VRP (Jan. 25, 2010) at 11. The trial court promptly rejected this latter proposal, stating, “[W]e’re not doing [voir dire] in chambers.” VRP (Jan. 25, 2010) at 12 (emphasis added). Again, this unequivocal refusal to allow juror voir dire in chambers, despite its potential efficacy for avoiding tainting the venire, is strong evidence that the trial court did not allow any in-chambers voir dire in Slert’s trial, that it excused the four jurors for administrative or ministerial reasons pretrial and pre-voir-dire, and that the trial court fully recognized and balanced Slert’s public trial rights with his right to an impartial jury.
U.S. Const. amend. VI.
Majority at 776.