State v. Irby, 246 P.3d 796

Irby was charged with first degree murder with aggravating circumstances, first degree felony murder, and first degree burglary in Skagit County; trial court proceeded in his absence for part of jury selection.
On January 2, 2007, jurors were sworn and completed questionnaires; the trial judge emailed to dismiss several jurors, with Irby absent in his jail cell.
The State and Irby’s counsel agreed to the release of seven jurors identified in the judge’s email; three jurors with murdered parents (36, 48, 49) were initially objected to by the State but later affected by further discussions.
On January 3, Irby appeared and jury selection continued in open court; juror 36 was released for cause with Irby present; ultimately jurors 7, 17, 23, and 36 had relevance to Irby’s jury panel.
Irby was found guilty of the charged offenses and sentenced to life in prison without parole as a persistent offender; he appealed contending a right to be present during jury selection was violated and other issues.
The Court of Appeals reversed, and the Washington Supreme Court granted review to address the right to be present during jury selection and related constitutional questions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to be present during jury selection via email excusal	Irby contends the e-mail excusal of jurors during voir dire violated his right to be present.	State argues the e-mail exchange did not implicate a critical stage or Irby’s defense largely, and presence was not required.	Yes; violation of due process and article I, §22.
Harmless error analysis of right to be present	Irby argues the error could have affected the jury and verdict.	State contends any error was harmless because affected jurors did not sit on the jury.	Not harmless beyond a reasonable doubt.
Independent state constitutional claim under article I, § 22	Irby asserts a separate state constitutional right to be present at all stages.	State treats it as encompassed by federal due process; argues no independent violation.	Yes; violation under article I, § 22.

Snyder v. Massachusetts, 291 U.S. 97 (1934) (presence relates to opportunity to defend)
Gomez v. United States, 490 U.S. 858 (1989) (voir dire is a critical stage; jury selection focus)
United States v. Gagnon, 470 U.S. 522 (1985) (presence at proceedings related to defense)
Rice v. State, 110 Wash.2d 577 (1988) (jury qualification and discretion in excusals)
Benn v. State, 134 Wash.2d 868 (1998) (due process right to public/trial presence considerations)
Caliguri v. State, 99 Wash.2d 501 (1983) (harmless error standard adopted to evaluate presence violations)
Shutzler v. State, 82 Wash. 365 (1914) (historic breadth of appearance and defense rights)
Taylor v. Louisiana, 419 U.S. 522 (1975) (exemptions for hardship and jury service procedures)
Soto v. Commonwealth, 139 S.W.3d 827 (2004) (hardship excusals outside presence; no constitutional error)
State v. Cummings, 352 N.C. 600 (2000) (family/absence exemptions not inherently violative)