dissenting.
I join in Parts III, IV and V of the majority opinion. Because I believe that the errors in the conduct of the voir dire require reversal, I respectfully dissent from the judgment of this court. In my view, the willful judicial exclusion of Alessandrello and Lacognata from a critical portion of their voir dire is an error which cannot be dismissed as harmless beyond a reasonable doubt. The standard the majority uses to reach its decision will make it almost impossible for future defendants to challenge a denial of both their right to be present during their trial and their right to exercise peremptory challenges. I am especially concerned because the majority’s approach seriously erodes the defendants’ right to make decisions which are important to their defense.
I am not unmindful of the overwhelming evidence against the defendants, and I recognize that the distinguished trial judge, in all but one respect, presided admirably over a difficult trial involving a highly publicized and tragic crime. If judges rulings were rated, like baseball players, for their general batting average, certainly the trial judge had an almost perfect record when one recognizes the challenges of this case. But the trial of a case is not like the arena of sports. The losses of the defendants, where here they received sentences of 21 years, cannot be recouped or redeemed in next year’s World Series.
I.
A.
The significance of the majority’s holding cannot be gleaned from a mere reading of the cold trial record or by a bland recitation of the questions which were asked during the time the defendants were excluded *148from one of the vital portions of their own trial. A critical part of the jury selection process is the use of the peremptory challenge. The challenge for cause permits the defendant to exclude individuals about whom he has articulable objections; the peremptory, on the other hand, permits him to exclude persons based on inarticulable feelings. The peremptory protects that which we know as women and men, namely, that inarticulable hunches and intuitions are often accurate perceptions of reality. The Supreme Court reflected on this in Hayes v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887), where it stated:
Experience has shown that one of the most effective means to free the jury-box from [jurors] unfit to be there is the exercise of the peremptory challenge. The public prosecutor [and, presumably the defendant] may have the strongest reasons to distrust the character of a juror offered, from his habits and associations, and yet find it difficult to formulate and sustain a legal objection to him. In such cases, the peremptory challenge is a protection against his being accepted.
The decision making in the peremptory challenge process occurs within a milieu that makes is virtually impossible or at least “difficult to formulate”, Hayes v. Missouri, supra, the reasons why the peremptory objections were or were not exercised. Yet it is within this elusive area that the facts of record must be understood.
Judge Meanor, after addressing the jury pool, elected to question each prospective juror individually in a small anteroom located off the main courtroom. Since the room was too small to accommodate the judge and his law clerk, counsel, a court reporter, a court clerk, the prospective juror and defendants, defendants were excluded from this portion of their own voir dire proceeding.
The trial judge explained that the reasons for exclusion of defendants from the anteroom proceedings were those of convenience (“technical and logistical problems”) and a desire to avoid the prejudice which might occur “in open court [when] ... a prospective juror will say something which would provide an argument that an entire group has been contaminated by what that juror has said.” He recognized that such contamination was a “significant risk in a case of this caliber.”1
I find this exclusion in itself startling when we recognize the importance of the *149voir dire proceedings and where defendants’ objections had been made explicitly to the trial judge. The objection was not an afterthought as in United States v. Dioguardi, 428 F.2d 1033, 1039, n.4 (2d Cir.) cert. denied, 400 U.S. 825, 91 S.Ct. 50, 27 L.Ed.2d 54 (1970), where the objection to the voir dire proceedings was raised for the first time at the hearing on sentencing. Here, counsel for defendants stated the objection explicitly:2
The solution to this logistical problem was easy though perhaps more time consuming. The trial judge could have had individual jurors brought into the main courtroom one at a time where they could have been questioned in the presence of the defendants, and it appears that there was a room close by where the proceedings could have taken place but as the trial judge noted “it would have taken a lot of extra time to shuffle everybody over there and back.”
B.
The majority concedes that the exclusion of the defendants “was a clear violation of Rule 43(a)” which guarantees to each defendant the right to “be present ... at every stage of the trial including the empaneling of the jury ...” Fed.R.Crim.P. 43, and it cautions the trial judges in this circuit to fully comply with the rule in the future. However the majority decided that this exclusion was harmless error because
this portion of the examination concerned only one topic, since experienced defense counsel were present and were encouraged to consult with the defendants as frequently and as fully as they desired, and since the defendants were located in the courtroom only 25 feet away, any potential harm which could arise from this procedure was greatly diminished. When these facts are added to the fact that the trial judge in no way limited the amount of consultation which the defendants and their counsel were permitted to have with each other before selecting the actual members of the jury, we conclude that in this instance the violation of Rule 43 constituted harmless error, (footnote omitted)
*150Majority Opinion at page 144.
It seems particularly ironic that the majority concludes that the questioning of a prospective juror (in the absence of the defendants) was harmless error when the jurors were being questioned on the “one topic” so sensitive that the trial judge feared, in his own words, that if another juror heard the answer it “would provide an argument that the entire group has been contaminated by what that juror has said.” Appendix at 76. If the topic is potentially poisonous enough to contaminate a whole group of jurors, why isn’t it important enough for the defendants to be present to make their own judgments on the prospective juror’s responses and to decide by what they hear and see whether they want to exercise a peremptory challenge against that juror?
While I commend wholeheartedly the trial judge’s concern for preventing the possible prejudice of pretrial publicity, a reading of the transcript, pertaining to the anteroom questioning, reveals that questions were asked and issues raised which are precisely the type of interchanges the defendants are entitled to witness in order to make meaningful their use of the peremptory challenge. For example, one prospective female juror acknowledged having read about the crime in the newspaper and also having been the victim of a past burglary. The defendants’ counsel challenged her for cause because “I think she is going to have some inner feelings that-she .. . [like the victim of the instant kidnapping is] a woman who is home alone.” T.R. at 84. Judge Meanor denied the challenge for cause. While counsel could have cast one of the defendants’ peremptory challenges on their behalf, the defendants by their absence were deprived of an opportunity to observe the would-be juror’s demeanor.
Similarly the following interchange, in the absence of the defendant, between the court and a prospective juror is illustrative of the need for the defendants’ presence:
EXAMINATION OF PROSPECTIVE JUROR NO. 4
BY THE COURT:
Q. Mr. Williams, do you recall having read anything about this case in the papers or heard about it over the news media?
A. Yes.
Q. Tell me what you specifically remember?
A. Well, it was a while ago, I didn’t pay that much attention. ' I don’t particularly like sensational cases per se. The only impression that I remember is that there seems to be some inherent stupidity on the part of the defendant.
Q. Mr. Williams, these people are entitled to a fair trial. Do you believe that there is any reason why you can’t give them a fair trial?
A, No, not on that basis.
Q. Do you think you would hesitate at all to bring back a verdict of not guilty if you found the case had not been proved beyond a reasonable doubt?
A. No problem.
Q. I might jar your memory. Do you recall having read anything in the newspapers or heard over the news media anything about the alleged abduction of one Joan Dedrick whose husband was a vice president of a bank?
A. Yes.
Q. Has this led you to form any opinion as to the guilt or innocence of the people now on trial?
A. I didn’t follow it that closely, sir.
Q. I take it your answer is in the negative?
A. Yes.
T.R. at 59, 60. Counsel’s challenge for cause was again denied.
Reading from the cold record we cannot always appreciate the nuances of a trial. Should we believe that simply because prospective juror Williams said he believed that the defendants were entitled to a “fair *151trial” that Williams really meant it? What does the record really reveal from Williams’ answer “I don’t particularly like sensational cases per se. The only impression that I remember is that there seems to be some inherent stupidity on the part of the defendant.”?
As I read many of the answers throughout the anteroom voir dire proceedings there were persistent issues of credibility as to the prospective jurors. How can it be harmless error when the defendants are excluded from hearing and seeing the jurors being questioned on matters which the trial judge considered sensitive and possibly prejudicial?
II.
The jury selection process in federal courts is too precious a right to sanction the trial judge’s well intentioned, but purposeful, exclusion of the defendants from approximately twenty per cent of their own voir dire proceeding. The majority views the lower court’s exclusion of the defendants from a portion of their own voir dire proceeding as mere “harmless error” and stresses that “Alessandrello and Lacognata do not in any way attack the impartiality of the jury.” Majority Opinion at page 142.
Perhaps my fundamental disagreement with the majority is our differing perception of the purposes for the voir dire proceeding. By relying on the fact that ultimately an impartial jury was selected in this case, the majority neglects the critical importance of the defendants’ right to participate in every stage of their trial. Clearly the majority would not condone a jury selection process, whereby the defendants were given absolutely no say, merely because it resulted in an impartial jury panel.
It is of the utmost importance that the defendant be present when the jury is being selected. First, his presence will make for a more effective defense, because it enables the defendant “to give advice or suggestion” to his lawyer during the trial. Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332,78 L.Ed. 674 (1934). This is important because the defendant has unique knowledge which is important at all stages of the trial, including voir dire. At the voir dire he may, for example, identify prospective jurors that he knows. He may also have knowledge of facts about himself or the alleged crime which may not have seemed relevant to him in the tranquility of his lawyer’s office, and thus may not have been disclosed, but which may become important as the individual prejudices or inclinations of the jurors are revealed. He may also be a member of the community in which he will be tried and might be sensitive to particular local prejudices his lawyer does not know about.
Second, if present, the defendant will be able to make decisions about his defense, as well as advise his lawyer. Unless he is present, he cannot observe how his defense is unfolding and would be unable to make “suggestion[s] or even to supersede his lawyers altogether and conduct the trial himself.” Snyder v. Massachusetts, 291 U.S. at 106, 54 S.Ct. at 332. He must be present so that he may participate in the defense, if he wishes, “for it is he who suffers the consequences if the defense fails.” Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). See United States v. Williams, 631 F.2d 198 (3d Cir. 1980) (Adams, J., dissenting) (discussing in detail the defendant’s right to control his own defense).
Third, the defendant’s presence at the voir dire not only affects the actual attainment of an impartial trial, but also is important to the appearance of impartiality. As Blackstone pointed out, “how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice even without being able to assign a reason for such his dislike.” 4 Blackstone 353, quoted in, Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892).
Although the Supreme Court has never held that the peremptory challenge is required by the Constitution, it has remarked *152frequently on its significance. See e. g., Lewis v. United States, 146 U.S. at 378, 13 S.Ct. at 139 (“essential in contemplation of law to the impartiality of the trial”); Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894) (“one of the most important of the rights secured to the accused”); Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965) (“a necessary part of trial by jury.”). The peremptory challenge is important because it helps the defendant select a jury by giving him “an opportunity beyond the minimum requirements of fair selection to express an arbitrary preference among jurors properly selected and fully qualified to sit in judgment on his case.” Frazier v. United States, 335 U.S. 497, 506, 69 S.Ct. 201, 206, 93 L.Ed. 187 (1948).
The peremptory challenge procedure was not designed to implement a judge’s perception of what constitutes an impartial jury. The peremptory challenge was designed for the defendant and the prosecutor — neither the trial judge nor the appellate courts are given the right to cast the litigants’ ballot for peremptory challenges. Plainly speaking, it is not for judges to select the type of jury which will decide the fate of the accused. More than a decade ago Justice White, speaking for the Court in Swain, stressed that:
The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.
380 U.S. at 220, 85 S.Ct. at 835. In this case, the peremptory challenge was impermissibly “subject to the court’s control” and therefore constituted reversible error.
This is a case where appreciation of the applicable legal precepts casts the facts in their proper perspective. Appellate courts should be extremely cautious when they decide beyond a “reasonable doubt” that a defendant would not have found an inarticulable suspicion important enough to exclude an individual from the jury. That decision cannot be made here because the portion of the voir dire from which the defendants were excluded, involved important issues about possible prejudice of the jurors. The majority asserts with confidence that the exclusion was mere harmless error. Its holding defies the principles of law which Mr. Justice Shiras reaffirmed almost a century ago when adopting the earlier views of both Justice Story and Bláckstone:
(1) As every one must be sensible, what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice even without being able to assign a reason for such his dislike. (2) Because, upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.
Lewis v. United States, 146 U.S. at 376, 13 S.Ct. at 138.
Admittedly before the anteroom proceeding the defendants had some opportunity “to measure the demeanor of prospective jurors” and to hear responses “to questions about personal background, as well as general trial-related matters,” Majority Opinion at pages 143-145, and I recognize that the voir dire in the anteroom was only twenty percent of the overall voir dire. Brief for Appellee at 32. But defendants are entitled to 100 per cent of their rights-an 80 per cent grant is not enough. Important issues of individual knowledge, preference and prejudice were explored in the anteroom. Not only did the judge question each juror about whether he or she had seen media reports of the crime, but he also asked each juror if there were any reasons why he or she would be prejudiced against the defendant or whether there were any other rea*153sons why he or she could not serve on the jury. The answers to these questions were undoubtedly significant in the decision about the peremptories. Can the majority say a juror’s response to any of these inquiries would not have given defendants what the Supreme Court, Justice Storey and Blackstone said, that “everyone must be sensible to ... sudden impressions and unaccountable prejudices” because of the manner of the response? Can the majority say that any lawyer would be able to adequately articulate to the defendants what should be the defendants impression of “the bare looks and gesture of another.”? Lewis v. United States, supra. I submit that looks, gestures and appearances which may be suspect to a defendant may seem innocuous to his lawyer. The defendants may have wished to hear what was said, to decide for themselves whether what a juror said “sounded” like the juror truly believed the answer given. The defendants may have wished to observe facial expressions; or other revealing physical reactions. These are the kinds of reactions which frequently form the basis of peremptory challenges. If we find today that non-verbal or intangible reactions to inquiries about prejudice and views are unimportant beyond a reasonable doubt, I query whether we would ever find intangibles significant.
Further, the majority ignores the question of burden of proof on this issue. Implicitly it has placed the burden on the defendants. That decision conflicts with the traditional rule that the burden rests on the government to prove that a procedure error of this sort is harmless beyond a reasonable doubt. See generally Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
III.
As I noted above, the defendants objected strenuously to their exclusion. The importance of the waiver in cases such as this is demonstrated by the fact that neither my review of the cases nor the majority’s uncovered any instance where a defendant made a timely objection to his exclusion from his voir dire and it was not found to be reversible error. See, e. g., United States v. Crutcher, 405 F.2d 239, 242-43 (2d Cir. 1968). In every case cited by the majority in which the court held the exclusion was a harmless error, the defendant waived his right below. The majority’s heavy reliance on U. S. v. Alper, Appeal of Stanley M. Greenberg, 449 F.2d 1223 (3d Cir. 1971), cert. denied, 405 U.S. 988, 92 S.Ct. 1248, 31 L.Ed.2d 453 (1972), reh. denied, 406 U.S. 911, 92 S.Ct. 1605, 31 L.Ed.2d 822 (1972), reveals that they fail to appreciate the significant and critical differences between cases where the litigants purposefully waived their right and those where, as here, the litigants protested from the beginning the court’s preclusion of the defendants from a crucial portion of the trial process. In Alper this Court stated explicitly that “there is no indication whatever that [the defendants] were excluded from the discussions in chambers by any action of the court.” 449 F.2d at 1231. In contrast here the defendants were precluded by the “action of the court.” If the defendants’ pointed objection was not enough to satisfy the majority, then there is nothing that a defendant could do to receive the right to be present “. . . at every stage of the trial including the impaneling of the jury” which the rules and the Constitution grant to a defendant.
In other cases cited by the majority the defendant’s waiver followed an offer by the trial court to repeat the portion of the voir dire that the defendant had missed. See, e. g., Phillips v. United States, 533 F.2d 369, 372 (8th Cir.) cert. denied, 429 U.S. 924, 97 S.Ct. 324, 50 L.Ed.2d 292 (1976) (“Appellant .. . was informed on the record that if he wished, he could have an entirely new trial.”); United States v. Dioguardi, 428 F.2d at 1039 and n.4, cert. denied, 400 U.S. 825, 91 S.Ct. 50, 27 L.Ed.2d 54 (1970) ([“T]heir experienced counsel, who had been earlier advised of the proposed procedure, did not ask that [the defendants] be allowed to come nearer the judge .. . when the point was first raised ... the judge stated he would have granted such a request.”); and Henderson v. United States, 419 F.2d 1277, 1278 (5th Cir. 1970) (“[T]he Court asked [defendant’s] counsel whether there was *154‘any need ... to go back through the preliminaries with respect to the exercise of challenges for cause.’ To this his counsel answered with a categorical ‘No.’ ”).
The presence of the defendants’ attorneys at the voir dire in the anteroom is not a waiver and does not alleviate the infirmity in this case. Candidly I am at a loss in understanding why the majority’s opinion notes that the defendants were only 25 feet away from the anteroom where this separate hearing was being conducted. Defendants have neither bionic eyes nor bionic ears — for them the impressions which these witnesses made while being questioned in this adjacent room were as undiscernable as if that separate proceeding occurred a mile away.
As I noted above, the right to be present at trial implicates the right to one’s own defense. The defendant, if he chooses, has the right to make his own judgments on the basis of a juror’s “nationality, his business, religion, politics, social standing, family ties, friends, habits of life and thought; the books and newspapers he likes and reads . .. [even to his] method of speech, the kind of clothes he wears, the style of haircut. ...” Darrow, Attorney for the Defense, Esquire Magazine, May 1936, quoted in, United States v. Barnes, 604 F.2d 121, 134 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980), and to eliminate jurors “whether they be Negroes, Catholics, accountants or those with blue eyes.” Swain v. Alabama, 380 U.S. at 212, 85 S.Ct. at 831. Here, defendants did not delegate the selection to their attorneys and they need not have done so.
IV.
Having been a trial judge for more than thirteen years, I am sympathetic to the lower court’s difficulties in the management of a complex and difficult case, and I applaud his concern for eliminating the impact of pretrial publicity. I am also aware
of the public’s general hostility to any decision which requires a retrial on what some would consider a mere “technicality.” I firmly believe, however, that the selection of a jury to sit in judgment and to decide the defendants’ freedom is more than a technicality. As Mr. Justice Frankfurter observed more than three decades ago:
In law, as in life, lines have to be drawn. But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere.
Pearce v. Commissioner of Internal Revenue, 315 U.S. 543, 558, 62 S.Ct. 754, 761, 86 L.Ed. 1016 (1942) (Frankfurter, J., dissenting). I draw the line where as here the defendants have been intentionally excluded, over their objections and without good cause, from a significant portion of their voir dire proceeding.3 As Judge Harold R. Medina once said, “The more odious and despicable the crime, the more important it is that justice be done.”4 In this case an injustice has been done, and fundamental procedural rights have been breached.
. THE COURT: All right.
Well, look, 1 think for the benefit of the record I ought to point out that I have behind this courtroom two small rooms. I would say probably 80 percent of the jury interrogation or my addresses to the jury took place in the presence of the defendants. I have a small room that I use to interrogate the jurors on two topics; one was the extent of publicity that they had read or seen or heard in regard to this case and there can be no gainsay in the fact that this case has received extensive publicity. The second topic of inquiry was whether the jurors had as a result of that publicity or otherwise, any preconceived notions about the guilt of the defendants. I have technical and logistical problems. Well I might agree that it would be preferable that the defense be present throughout the entire jury interrogation, not just 80 or 85 percent of it, 1 run a significant danger if I do this interrogation in open court, with the members of the Panel present or the groups of 16 present, that someone in open court who is a prospective juror will say something which would provide an argument that the entire group has been contaminated by what that juror has said.
Now, that is a significant risk in a case of this caliber and it was primarily that risk that I chose to avoid by interrogating the jurors upon these rather extensive topics, individually.
The defendants certainly were present at that interrogation at what I call sidebar or in the anteroom, through their counsel. I don’t think any counsel will deny that counsel were told that any time during the interrogation or at the end thereof if they wished to leave and consult with their clients, who were in the courtroom only for 20, 25, 30 feet away, they were free to do so. I’ve got to have a little play in the joints of this judicial machinery to make it work and I believe that doing it in this fashion was within my discretion. I do not believe it was an abuse of that discretion.
I think you’re adequately preserved on this point on the record for Appellate review.
MR. HOROWITZ: I just would like to make another comment, your Honor, so the record is complete, I, of course, agree with your Honor’s motives and intention in the *149procedure except I suggested it to your Hon- or yesterday and I repeat again here for the record that your Honor had a very feasible alternative; that individual interrogation could have been conducted in a larger room where the defendants could have been present. Indeed it could have been done in the courtroom with only one potential witness in the courtroom.
THE COURT: Yes, it could have been and it could have been bringing one juror in at a time instead of in groups of 16 and it would have been all week picking a jury. I don’t have logistically the place with which I can retire with four attorneys, four defendants, a Court Clerk, a Court Reporter, two attorneys for the Government and, perhaps, one of my law clerks to take care of this matter.
All right. You made your point. Denied.
MR. HOROWITZ: Your Honor, there was a room which was quite adequate for that purpose and it was the room in which the defendants were held and which all four counsel were given the opportunity to consult with their defendants after we conducted the interrogation right across the hall.
THE COURT: It’s a jury room what you’re talking about.
MR. HOROWITZ: It’s no more than 10 or 20 feet.
THE COURT: It’s more than that and it would have taken a lot of extra time to shuffle everybody over there and back.
Any further motions you wish to make?
MR. HOROWITZ: That’s it.
Appendix at 75-79.
. MR. HOROWITZ: We objected to the procedure whereby individuals members of the ■ jury panel were interviewed by Your Honor in the anteroom outside the courtroom, outside of the presence of the defendants. The reason for that is that the defendants are entitled to exercise peremptory challenges. A peremptory challenge can be based on anything, it can be based on a gut feeling, an innate distrust, whatever. Your Honor knows. For my client not to have had the opportunity to see each and every one of those jurors as they answered the questions at close range, if you will, more pointed questions than were-and alone, as distinguished from being a member of a panel and sitting in the box in a large room, it deprived them of the opportunity to see that, to get that feeling and to communicate that to counsel, which of those jurors he would prefer having or not having, (emphasis added)
Appendix at 75.
. Because I believe the exclusion in this case was not harmless error, I do not reach the issue of whether a per se rule is desirable. Nor do 1 express any opinion on the consequences of removing an obstreperous defendant whose behavior is disruptive to the voir dire proceeding. See, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).
. XII, Lloyd Paul Stryker, The Art of Advocacy (1954).