State v. Irby, 246 P.3d 796

Irby was charged with first degree burglary and first degree murder with aggravating factors in Skagit County.
Prior to trial, both sides agreed not to attend the first jury-voir dire day; jurors were sworn and given questionnaires.
An email from the trial judge suggested excusing several jurors based on hardship or related factors; Irby was in custody and not consulted during the email exchange.
Seven jurors (and later four more with parents murdered) were excused by email without Irby’s presence during the decision-making.
Jury selection proceeded in open court the next day with Irby present; ultimately jurors 7, 17, 23 sat and were questioned later, while others did not.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to be present at jury selection under due process	Irby claims absence during email-voiced excusal violated his presence rights.	Email excusals were administrative, not critical to defense; presence not required.	Violation; presence required during the relevant portion of jury selection.
Article I, §22 right to appear and defend	Same absence violated state constitutional right to appear and defend.	State law permits administrative excusals without defendant present.	Violation under state constitution as well.
Harmless error review	Constitutional error is not harmless; it affected voir dire.	Hardship excusals are harmless because jurors not seated were not from Irby's panel.	Not harmless beyond a reasonable doubt; however see related candid distinction in opinions.
Scope of jury-selection stages treated as critical	Voir dire-related exchanges fall within critical stage requiring presence.	Administrative preliminaries distill to non-critical stages.	Critical stage includes the part of jury selection involving evaluation for this case; presence required.

Gomez v. United States, 490 U.S. 858 (1989) (jury selection is a critical stage; defendant must be present)
Snyder v. Massachusetts, 291 U.S. 97 (1934) (presence relates to defense opportunity; not absolute)
United States v. Gagnon, 470 U.S. 522 (1985) (presence when substantial relation to defense)
Rice v. State, 110 Wash.2d 577 (1988) (jury qualifications and exclusions basis; discretion preserved)
Benn v. State, 134 Wash.2d 868 (1998) (harmless error analysis applicable to right to be present)
State v. Shutzler, 82 Wash. 365 (1914) (historic articulation of appear and defend right)
State v. Caliguri, 99 Wash.2d 501 (1983) (adopts harmless error standard for such rights)
State v. Ingels, 4 Wash.2d 676 (1940) (trial court discretion in excusing jurors)
Taylor v. Louisiana, 419 U.S. 522 (1975) (juror exemptions and hardship permissible)