227 F.3d 908 (7th Cir. 2000)
KATHLEEN A. BRAUN, Petitioner-Appellee,v.BARBARA POWELL, Respondent-Appellant.
No. 00-1096
In the  United States Court of Appeals  For the Seventh Circuit
Argued June 7, 2000Decided September 18, 2000

Appeal from the United States District Court  for the Eastern District of Wisconsin.  No. 97 C 423--Lynn Adelman, Judge.[Copyrighted Material Omitted]
Before POSNER, COFFEY and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge.


1
Kathleen Braun was  convicted of murder in 1976. While her motion for  a new trial was pending, she escaped from prison.  After her return to custody in 1984, she filed a  motion in Wisconsin state court to vacate the  judgment of conviction. The Wisconsin circuit  court denied her motion. The Court of Appeals of  Wisconsin affirmed; the Supreme Court of  Wisconsin then granted review and affirmed. Ms.  Braun later filed a petition for federal habeas  corpus relief; the district court granted the  petition. For the reasons set forth in the  following opinion, we reverse the judgment of the district court.


2
* BACKGROUND


3
Kathleen Braun was arrested in 1975 and charged  with the murder of William Weber. The primary  witness against Ms. Braun was Earl Jeffrey  Seymour. Seymour also had been arrested for  Weber's murder; he testified against Ms. Braun  pursuant to a plea agreement. A jury convicted  Ms. Braun in December 1976 after a six-week  trial, and she was sentenced to life  imprisonment.


4
During the trial, the trial judge excluded from  the courtroom a man named Mr. Mane. Mane had been  a member of the jury venire panel but had been  excused because he had said that he was friendly  to the defense. After he had been excused, he  returned to the courtroom to watch the trial. The  trial court then excluded Mane from the  courtroom, stating that it had a policy of  excluding all former members of the venire panel  from remaining in the courtroom during the trial.


5
In August 1977, Ms. Braun filed a post-  conviction motion under Wisconsin Statutes sec.  974.02.1 In December, before the trial court  could rule on the sec. 974.02 motion, Ms. Braun  escaped from prison. In May 1978, the trial court  dismissed Ms. Braun's motion on the ground that  she had escaped from prison.


6
Ms. Braun was involuntarily returned to custody  in 1984. In 1988, she filed a Motion to Vacate  Judgment pursuant to Wisconsin Statutes sec.  974.06.2 Ms. Braun argued that the trial court  had violated her Sixth Amendment right to a  public trial by excluding Mane. She also  contended that the prosecutor had committed  misconduct by not disclosing fully the terms of  the plea agreement under which Seymour testified  and, further, that the failure to disclose the  full terms of the plea agreement infringed on her  constitutional right to cross-examine witnesses.


7
The trial court denied her motion. The Court of  Appeals of Wisconsin affirmed. See State v.  Braun, 504 N.W.2d 118 (Wis. Ct. App. 1993). The  Supreme Court of Wisconsin granted review in the  case and also affirmed. See State v. Braun, 516  N.W.2d 740 (Wis. 1994). The Supreme Court of  Wisconsin did not reach the merits of Ms. Braun's  Sixth Amendment and prosecutorial misconduct  claims. Instead, it held that she was precluded  from bringing a motion under sec. 974.06 because,  by her escape, she had "forfeited all claims she  either raised or could have raised" in the  earlier post-conviction motion under sec. 974.02.  Id. at 745.


8
Subsequently, Ms. Braun brought a petition for  habeas corpus in the district court. The court  granted the petition. See Braun v. Powell, 77 F.  Supp.2d 973 (E.D. Wis. 1999). The court first  held that Ms. Braun's escape had not caused an  abandonment of her constitutional claims.  Addressing the merits of those claims, the court  held that the exclusion of Mane had violated Ms.  Braun's right to a public trial and that such a  violation required the issuance of the writ of  habeas corpus. The court also determined that  prosecutorial misconduct had occurred in  violation of the Constitution, but that the  violation was harmless; similarly, it found  harmless any unconstitutional restriction on Ms.  Braun's ability to cross-examine witnesses.

II
DISCUSSION
A.  Procedural Default

9
We review de novo the district court's holding  that Ms. Braun did not commit procedural default  during the state court proceedings. See Franklin  v. Gilmore, 188 F.3d 877, 882 (7th Cir. 1999),  cert. denied, 120 S. Ct. 1535 (2000); Fields v.  Calderon, 125 F.3d 757, 759-60 (9th Cir. 1997);  Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991)  (per curiam). In a federal habeas corpus  proceeding, we look to state law to determine  whether a claim has been defaulted. See Thomas v.  McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000);  Turentine v. Miller, 80 F.3d 222, 224 (7th Cir.  1996). If the state court declined to reach the  merits of the petitioner's claim because of a  procedural default, that default must constitute  an independent and adequate state-law ground in  order to be a bar to federal habeas relief. See  Coleman v. Thompson, 501 U.S. 722, 729-30 (1991);  Schaff v. Snyder, 190 F.3d 513, 524 (7th Cir.  1999).

1.

10
To conclude that the procedural default  constitutes an independent basis for the state  court's ruling, we must be convinced that the  last state court to consider the question  actually relied on procedural default as the  basis for its decision. See Willis v. Aiken, 8  F.3d 556, 561 (7th Cir. 1993); Prihoda v.  McCaughtry, 910 F.2d 1379, 1382 (7th Cir. 1990).  The state court therefore must have "clearly and  expressly" relied on procedural default as the  basis of its ruling. Harris v. Reed, 489 U.S.  255, 263 (1989) (quotation marks omitted);  Jenkins v. Nelson, 157 F.3d 485, 491 (7th Cir.  1998), cert. denied, 119 S. Ct. 2402 (1999); Rose  v. Lane, 910 F.2d 400, 402 (7th Cir. 1990). The  independence of the ground of procedural default  is not at issue in this case. The Supreme Court  of Wisconsin unambiguously based its holding on  its view that Ms. Braun's escape constituted an  abandonment of her right to bring an appeal. Ms.  Braun does not argue that procedural default was  not an independent basis for the state court's  ruling.

2.

11
To be an adequate ground of decision, the  state's procedural rule must be both "firmly  established and regularly followed." Ford v.  Georgia, 498 U.S. 411, 423-24 (1991) (quoting  James v. Kentucky, 466 U.S. 341, 348 (1984));  Franklin, 188 F.3d at 882; Rosa v. Peters, 36  F.3d 625, 633 (7th Cir. 1993). A procedural  ground is not adequate, however, unless it is  applied in a "consistent and principled way"; it  cannot be employed "infrequently, unexpectedly,  or freakishly." Thomas, 201 F.3d at 1000; Bobo v.  Kolb, 969 F.2d 391, 399 (7th Cir. 1992)  (quotation marks omitted); Prihoda, 910 F.2d at  1383. A state procedural rule is not an adequate  ground for finding default if the prisoner "could  not fairly be deemed to have been apprised of its  existence" at the time she acted. NAACP v.  Alabama ex rel. Patterson, 357 U.S. 449, 457  (1958); Moore, 148 F.3d at 709 (quoting NAACP).


12
We must now consider whether procedural default  was an adequate basis for the state court's  ruling in this case. This task is complicated  significantly by changes in the jurisprudence of  Wisconsin. The earlier precedent of this court  also must guide our inquiry.


13
After her conviction, Ms. Braun moved for post-  conviction relief under sec. 974.02, but the  trial court dismissed the motion because of her  escape while the motion was pending. She did not  appeal that dismissal. We must consider the  effect of Ms. Braun's failure to appeal under  Wisconsin law as it existed at the time of Ms.  Braun's escape. Specifically, we must determine  whether her failure to appeal that dismissal  automatically foreclosed a later collateral  attack under sec. 974.06 raising her  constitutional claims. As we shall discuss more  fully in the paragraphs that follow, we must  conclude that the ruling of the Supreme Court of  Wisconsin is not an adequate ground upon which to  preclude federal habeas review.


14
a.


15
Initially, we examine the procedure that a  prisoner normally would have followed, at the  time of Ms. Braun's conviction, in order to  challenge her conviction in the Wisconsin state  courts. After conviction, the prisoner's first  challenge would have been a motion under sec.  974.02. The sec. 974.02 motion would have been  considered by the state trial court. If the trial  court denied the motion, the prisoner could have  appealed to the Court of Appeals of Wisconsin  and, if necessary, to the Supreme Court of  Wisconsin. These appeals would have constituted  the prisoner's direct appeal. After the  completion of the direct appeal, the prisoner  then could have filed a collateral challenge  under sec. 974.06. The prisoner first would have  filed a sec. 974.06 motion in the trial court. If  relief was denied in that court, the prisoner  would, once again, have the opportunity to appeal  to the Court of Appeals of Wisconsin and then the  Supreme Court of Wisconsin.


16
Ms. Braun, because of her escape, did not follow  this procedure. She escaped while her sec. 974.02  motion was pending in the state trial court. When  that motion was dismissed, Ms. Braun, still an  escapee, did not appeal to the Court of Appeals.  Following her recapture, she filed a sec. 974.06  motion with the trial court. After that sec.  974.06 motion was denied, she appealed to the  Court of Appeals of Wisconsin and then to the  Supreme Court of Wisconsin. As we have noted, the  Supreme Court of Wisconsin held that Ms. Braun  could not bring these post-conviction claims  because her escape from prison and subsequent  fugitive status had constituted a forfeiture of  relief. When those challenges were unsuccessful,  she filed her habeas petition in federal court.


17
We first consider in detail the implications of  Ms. Braun's failure to take an appeal from the  dismissal of her sec. 974.02 motion for a new  trial. Because Ms. Braun failed to take an appeal  from that dismissal, she never presented her  arguments to the Court of Appeals of Wisconsin or  to the Supreme Court of Wisconsin.


18
Putting aside for the moment her escape while  the motion was pending in the state trial court,  it is quite clear that, at that time, the failure  to raise issues of constitutional magnitude on  direct appeal did not prevent those issues from  being raised in a later collateral attack. In  Bergenthal v. State, 242 N.W.2d 199 (Wis. 1976),  the Supreme Court of Wisconsin considered the  merits of a prisoner's constitutional claim under  sec. 974.06. The prisoner had taken a direct  appeal to the Supreme Court but, in that direct  appeal, had not raised one of the issues  addressed in his sec. 974.06 motion: a claim that  the government unconstitutionally had suppressed  evidence. See Brady v. Maryland, 373 U.S. 83  (1963). Later, the prisoner brought an action  under sec. 974.06, raised the Brady issue, and,  in due course, brought it to the Supreme Court of  Wisconsin. The Supreme Court of Wisconsin held  that "[e]ven though the issue might properly have  been raised on appeal, it presents an issue of  significant constitutional proportions and,  therefore, must be considered in this motion for  postconviction relief." Bergenthal, 242 N.W.2d at  203. Thus, after Bergenthal, a constitutional  claim not raised on direct appeal could be raised  in a collateral attack under sec. 974.06.


19
The Supreme Court of Wisconsin's holding in  Bergenthal remained the governing rule in  Wisconsin until 1994. In that year, however, the  Supreme Court of Wisconsin explicitly overruled  Bergenthal, and held that an issue must be raised  on direct appeal in order to be considered on a  motion under sec. 974.06. See State v. Escalona-  Naranjo, 517 N.W.2d 157, 162 (Wis. 1994) ("We now  overrule the holding in Bergenthal which stated  that although a defendant fails to raise a  constitutional issue on appeal, the issue still  must be considered when raised in a subsequent  sec. 974.06 motion."). Escalona-Naranjo was a  companion case to Ms. Braun's sec. 974.06 case;  the two cases were decided by the Supreme Court  on the same day. Notably, the Justices relied on  Escalona-Naranjo in deciding Ms. Braun's case.  See Braun, 516 N.W.2d at 745 (citing Escalona-  Naranjo).


20
At the time Ms. Braun abandoned her direct  appeal, Bergenthal was the governing rule in  Wisconsin. Therefore, Ms. Braun was entitled to  conclude that a constitutional issue not raised  on direct appeal could be brought later through a  motion under sec. 974.06. Consequently, as this  court already has made explicit, the rule of  Escalona-Naranjo cannot be the ground of a  procedural default for purposes of barring  federal habeas review when the state post-trial  motion was filed after Bergenthal but before  Escalona-Naranjo. See Liegakos v. Cooke, 106 F.3d  1381, 1385 (7th Cir. 1997) ("[T]he doctrine of  Escalona-Naranjo is not an 'adequate' state  ground for appeals briefed before its  announcement."); see also Liegakos v. Cooke, 108  F.3d 144, 145 (7th Cir. 1997) (on petition for  rehearing) (per curiam) ("Our opinion holds that  prisoners whose direct appeals came after  Bergenthal v. State, but before Escalona-Naranjo,  are entitled to raise constitutional arguments in  federal court under 28 U.S.C. sec. 2254 without  justifying their omission from the briefs on  direct appeal." (citation omitted)). Thus, the  rule of Escalona-Naranjo does not render Ms.  Braun in procedural default.


21
The State points out that, after the trial court  rejected her sec. 974.02 motion, Ms. Braun not  only failed to raise these arguments to the Court  of Appeals of Wisconsin and to the Supreme Court  of Wisconsin, but she failed to take any direct  appeal on any issue to those tribunals. We do not  believe, however, that this distinction is a  significant one. Prior to Bergenthal, the Supreme  Court of Wisconsin had held that "[m]erely  because a direct appeal was not taken does not  mean that a 974.06 motion cannot be made later."  State v. Loop, 222 N.W.2d 694, 696 (Wis. 1974).  The court made clear, however, that the only  issues that could be raised under sec. 974.06  after being abandoned on direct appeal were those  of constitutional magnitude. Indeed, Loop  specifically held that exhaustion on direct  appeal was not required before bringing a  constitutional claim under sec. 974.06.3 Thus,  under the rationale in Loop, Ms. Braun's failure  to take any appeal does not, by itself, operate  as a procedural bar to her later claims.


22
The State also contends that Ms. Braun's motion  under sec. 974.06 must be regarded as an improper  attempt to relitigate claims already decided. It  submits that, because the state trial court ruled  against Ms. Braun in its disposition of the  motion under sec. 974.02, that her claims have  been decided on the merits, and therefore could  not be relitigated in any subsequent proceeding  under sec. 974.06.


23
The State is correct that, at the time of Ms.  Braun's escape, issues actually raised in a  direct appeal could not be relitigated on a sec.  974.06 motion. The Supreme Court of Wisconsin had  held that "[t]he motion [under sec. 974.06] must  not be used to raise issues disposed of by a  previous appeal." Peterson, 195 N.W.2d at 845;  see also Smith v. State, 217 N.W.2d 257, 258 n.6  (Wis. 1974) (quoting Peterson).4 It appears,  however, that the Supreme Court of Wisconsin  applied this rule only when the issues had been  presented to the appellate courts. The result in  Bergenthal demonstrates that the Peterson bar  applied only when the denial of the post-trial  motion for a new trial was actually appealed. In  Bergenthal, the trial court reached the merits of  the petitioner's Brady claim in adjudicating the  post-trial motion for a new trial. See  Bergenthal, 242 N.W.2d at 202 (describing trial  court's resolution of post-trial motion).  Nonetheless, the petitioner was able to bring his  constitutional claim on a later sec. 974.06  motion; the Supreme Court of Wisconsin did not  consider Peterson a bar to its review. We must  conclude that, at the time of Ms. Braun's escape,  Wisconsin would permit constitutional claims  raised in a motion under sec. 974.02 to be  relitigated on a sec. 974.06 motion when the  earlier sec. 974.02 motion had not been  scrutinized by the appellate courts. Because Ms.  Braun did not bring a direct appeal, but instead  abandoned her appeal after the trial court denied  her motion for a new trial, the Peterson bar  would not have applied to her constitutional  claim. Her sec. 974.06 motion therefore cannot be  characterized as an improper attempt to  relitigate claims already decided.5


24
In summary, Ms. Braun's failure to raise her  constitutional claims in a direct appeal does  not, standing alone, foreclose the opportunity to  raise those claims in a later motion under sec.  974.06. Her sec. 974.06 motion was not an  improper attempt to relitigate matters already  decided.


25
b.


26
Although, in the usual situation at the time of  Ms. Braun's escape, the failure to perfect a  direct appeal did not foreclose a later  collateral attack, we also must consider whether  the nature of Ms. Braun's failure to appeal--her  escape from prison--affects her ability to bring  a later motion under sec. 974.06. In many  American jurisdictions, "[d]isposition by  dismissal of pending appeals of escaped prisoners  is a longstanding and established principle of  American law." Estelle v. Dorrough, 420 U.S. 534,  537 (1975). This "fugitive disentitlement"  doctrine, when clearly applied by a state, may be  an independent and adequate state procedural  ground for finding default. See Wood v. Hall, 130  F.3d 373, 377-78 (9th Cir. 1997); Schleeper v.  Groose, 36 F.3d 735, 736-37 (8th Cir. 1994);  Feigley v. Fulcomer, 833 F.2d 29, 30 (3d Cir.  1987). Although Wisconsin appears to have adopted  a broader version of this doctrine in its review  of Ms. Braun's case, our task, in determining  whether there has been a procedural default that  bars federal habeas review, is to determine  whether Wisconsin had a clear fugitive  disentitlement doctrine at the time of Ms.  Braun's escape. Specifically, we must determine  whether it was clear in December 1977 that a  prisoner escaping during the pendency of her  motion under sec. 974.02 would recognize that she  had abandoned her right to later bring a  collateral attack under sec. 974.06.


27
The critical case in our inquiry is State v.  John, 211 N.W.2d 463 (Wis. 1973). The parties  agree that John was the Supreme Court of  Wisconsin's only discussion of the fugitive  disentitlement doctrine prior to Ms. Braun's  escape. The appeal in John arose in a slightly  different procedural posture than Ms. Braun's. In  that case, John had pleaded guilty to aggravated  battery, but then filed a motion for  postconviction relief under sec. 974.06. The  trial court scheduled a hearing on that motion,  but at the time of the hearing, was informed that  John had escaped. Even though he was not in the  custody of the State of Wisconsin, John brought  an appeal.


28
The Supreme Court of Wisconsin, in deciding  John, acknowledged that the American courts  applying the fugitive disentitlement doctrine had  relied upon several different rationales to  justify its invocation. It noted that some courts  had grounded the doctrine on a waiver theory;  others had relied on a mootness theory; some on  an abandonment theory. Having surveyed these  approaches, the Supreme Court of Wisconsin then  wrote that its use of the doctrine in John would  rest on "a narrower ground and perhaps a stronger  one." 211 N.W.2d at 465. Summarizing its holding,  it wrote


29
When a convict escapes and puts himself in a  position where he cannot aid the court which  needs his testimony in the determination of his  petition, he has frustrated the administration of  justice, made it impossible for the court to  consider his petition, and has abandoned his  application for relief on the merits.


30
211 N.W.2d at 466.


31
The decision of the Supreme Court of Wisconsin  to ground the fugitive disentitlement doctrine on  such a narrow ground, especially when it  specifically acknowledged that broader bases  existed, renders the doctrine an ineffective  foundation for use as an adequate state ground to  bar federal habeas relief in a case such as this  one. A prisoner escaping from Wisconsin custody  in 1977 was not on notice that failure to  prosecute a motion for relief under sec. 974.02  would result in the loss of the right to later  bring a motion for relief under sec. 974.06. The  prisoner would be on notice that Wisconsin had  limited its fugitive disentitlement doctrine to  apply only in cases where the absence of the  prisoner prevented the court from receiving from  that prisoner information necessary to the  adjudication of the matter before the court. Ms.  Braun therefore would not have been given notice,  as required by our case law, that her escape  would preclude her later filing a sec. 974.06  motion.

B.  Merits

32
Because we have concluded that the State may not  rely upon an adequate and independent state  ground, we, like our colleague in the district  court, must address the merits of the habeas  petition. The petition in this case was filed  after the effective date of the Antiterrorism and  Effective Death Penalty Act of 1996 ("AEDPA").  Therefore the standard of review contained in  that Act governs Ms. Braun's claims. See Lindh v.  Murphy, 521 U.S. 320, 322-23, 335, 336 (1997). As  amended by AEDPA, the federal habeas statute now  allows federal courts to grant habeas relief only  if the state courts' denial of relief "was  contrary to, or involved an unreasonable  application of, clearly established Federal law,  as determined by the Supreme Court of the United  States" or "was based on an unreasonable  determination of the facts in light of the  evidence presented." 28 U.S.C. sec. 2254(d). This  standard only applies, however, to a "claim that  was adjudicated on the merits in State court  proceedings." 28 U.S.C. sec. 2254(d). In this  case, the Supreme Court of Wisconsin disposed of  Ms. Braun's claims without having reached the  merits. Therefore, we cannot characterize these  claims as having been adjudicated on the merits  by the state court. Accordingly, we shall not  employ the standard of review set forth in AEDPA  but, rather, must rely upon the general standard  as set forth in 28 U.S.C. sec. 2243. See Moore v.  Parke, 148 F.3d 705, 708 (7th Cir. 1998). This  standard requires us to "dispose of the matter as  law and justice require." 28 U.S.C. sec. 2243.

1.

33
Ms. Braun contends that her right to a public  trial, as guaranteed by the Sixth Amendment and  made applicable to the states through the  Fourteenth Amendment, see Gannett Co. v.  DePasquale, 443 U.S. 368, 379 (1979), was  violated by the state trial judge's exclusion of  Mane from the courtroom. This individual had been  a member of the jury venire and, after he was not  chosen to sit as a juror, he sought to remain in  the courtroom to watch the proceedings. The trial  judge excluded him from the courtroom on the  ground that the judge had a policy of not  permitting persons who had served on the venire  from remaining in the courtroom.


34
It has long been established that the Sixth  Amendment right to a public trial is for the  protection of the accused. See Waller v. Georgia,  467 U.S. 39, 46 (1984); Estes v. State of Texas,  381 U.S. 532, 538 (1965). Determining with any  precision the contours of this right is a  difficult task. Existing case law, although  setting the outer boundaries, gives comparatively  little guidance with respect to "gray areas."  Precedents reversing convictions on the ground  that the public trial right was violated  generally deal with more substantial exclusions  than the one at bar. Typically, when habeas  relief was granted or a new trial required, the  courtroom was totally closed to the general  public at some critical juncture in the  proceedings; or, in other cases, the court  excluded a friend or relative of the defendant,  in contravention of the Supreme Court's  requirement, announced in In re Oliver, 333 U.S.  257, 271-72 (1948), that such individuals be  allowed in the courtroom.6


35
In determining the contours of the right to a  public trial, our colleagues in the other  circuits also have recognized that there are  certain instances in which the exclusion cannot  be characterized properly as implicating the  constitutional guarantee. Several cases have held  that the exclusion of spectators from a trial  simply did not rise to the level of a  constitutional violation. See Gonzalez v.  Quinones, 211 F.3d 735, 737 (2d Cir. 2000) (court  officer locked courtroom doors, without knowledge  of the trial judge, during the testimony of two  witnesses); United States v. Al-Smadi, 15 F.3d  153, 154-55 (10th Cir. 1994) (defendant's wife  and child unable to enter courtroom when trial  continued 20 minutes past the closing of the  federal building in which the courtroom was  located); Snyder v. Coiner, 510 F.2d 224, 230  (4th Cir. 1975) (courtroom locked for a short  time without knowledge of trial judge during  arguments of counsel before the jury). Judge  Calabresi, writing for the Second Circuit, has  explained succinctly how identifying those cases  in which the circumstances do not implicate the  constitutional guarantee differs from a harmless  error analysis:


36
A triviality standard, properly understood, does  not dismiss a defendant's claim on the grounds  that the defendant was guilty anyway or that he  did not suffer "prejudice" or "specific injury."  It is, in other words, very different from a  harmless error inquiry. It looks, rather, to  whether the actions of the court and the effect  that they had on the conduct of the trial  deprived the defendant--whether otherwise  innocent or guilty--of the protections conferred  by the Sixth Amendment.


37
Peterson v. Williams, 85 F.3d 39, 42 (2d Cir.  1996).


38
Given the many factual circumstances that a  court must analyze in assessing whether the  closure at issue in a particular case is one that  implicates the constitutional guarantee of a  public trial, the methodology employed by the  trial court must be the focal point of appellate  review. Here, Peterson suggests a thoughtful and  helpful approach. The court distilled from the  Supreme Court's decision in Waller four reasons  that animate the right to a public trial:


39
1) to ensure a fair trial; 2) to remind the  prosecutor and judge of their responsibility to  the accused and the importance of their  functions; 3) to encourage witnesses to come  forward; and 4) to discourage perjury.


40
Id. at 43.


41
As the Second Circuit acknowledged, the case  before it was an easy one for disposition in  light of these factors, and the court had little  difficulty in determining that no violation of  the right to a public trial had occurred. The  court acknowledged that some minimal exclusions  had taken place, but noted that the closure of  the courtroom was "1) extremely short, 2)  followed by a helpful summation, and 3) entirely  inadvertent." Id. at 44. Our case involves a  closer situation. The exclusion was permanent, at  least as to the one individual involved, and it  was intentional on the part of the trial judge.  On the other hand, the fact that the exclusion  applied only to one person, not a relative or  friend7 of the defendant's, is not without  significance in assessing the values protected by  the right to a public trial.


42
When we turn to those values articulated in  Peterson, we must conclude that we do not believe  that they are implicated in any substantial way  by the exclusion of Mane. There is no reason to  believe that Ms. Braun's trial was any less fair,  or that the court officers or witnesses took  their roles any less seriously, because of the  exclusion of this one spectator. Indeed, the  exclusion was implemented, albeit mistakenly from  what appears in this record, by the trial court  to avoid any prejudice to the defendant.  Moreover, although the record gives no  justification for such action on the part of the  trial judge, it is difficult to see any basis for  attributing any significant detriment to the  integrity of the trial proceedings to it. Mane's  presence or absence from the trial does not  appear to have had any effect on encouraging  witnesses to come forward or on discouraging  perjury. His sole connection with this case was  that he had been a member of the jury venire and  had driven the defense counsel on one occasion in  his taxi cab.


43
In this six-week trial, this exclusion of a sole  individual without any significant connection to  the case or to the parties and on the apparently  mistaken belief that such an exclusion would  enhance, not detract, from the integrity of the  proceedings, does not implicate the policy  concerns that inform the Sixth Amendment's right  to an open trial.8


44
We caution that the exclusion of any spectator  runs the risk of violating the Sixth Amendment  and, accordingly, of requiring a new trial.  However, on the narrow facts presented here, we  are convinced that any effect on Ms. Braun's  trial did not rise to the level of a Sixth  Amendment violation.9

2.

45
The district court decided that the prosecutor  committed misconduct by failing to inform the  jury of the terms of the State's plea agreement  with Seymour, the cooperating witness. As a  consequence, the district court continued, the  prosecutor misled the jury with respect to the  circumstances under which Seymour was testifying.  The prosecutor did not tell the jury that Seymour  had been informed that the prosecutor would,  after hearing Seymour's testimony, reevaluate its  sentencing recommendation for Seymour. The terms  of Seymour's plea agreement properly could have  been used for impeachment purposes.10 Because  the terms of the plea agreement were favorable to  the defense in the sense that they could have  been used for impeachment, the prosecutor had a  duty to disclose those terms to Ms. Braun. See  Strickler v. Greene, 527 U.S. 263, 280 (1999)  (stating that the Government's duty to disclose  favorable evidence "encompasses impeachment  evidence as well as exculpatory evidence");  Giglio, 405 U.S. at 153-54. The prosecutor should  have disclosed to the defense that Seymour knew  the State would be evaluating his testimony and  thereafter recommending a sentence based, in  part, on how effectively he testified against Ms.  Braun. Moreover, in addressing the jury and in  offering Seymour as its witness, the prosecution,  by not disclosing the agreed-upon reevaluation,  created a misimpression of the terms of plea  agreement.


46
Nonetheless, like the district court, we cannot  say that, on this record, the evidence was  material. In cases where the prosecutor withholds  exculpatory evidence, such as a plea agreement,  the Supreme Court of the United States has  instructed that "[s]uch evidence is material 'if  there is a reasonable probability that, had the  evidence been disclosed to the defense, the  result of the proceeding would have been different.'"  Strickler, 527 U.S. at 280 (quoting United States  v. Bagley, 473 U.S. 667, 682 (1985)); see also  Schaff, 190 F.3d at 527 n.13 (quoting Strickler).  However, when the prosecutor knowingly relies on  false testimony, the conviction must be set aside  "if there is any reasonable likelihood that the  false testimony could have affected the judgment  of the jury." United States v. Agurs, 427 U.S.  97, 103 (1976); see also Schaff, 190 F.3d at 530  (quoting Agurs). The Agurs standard is different  from that in Bagley and sets a lower threshold  for determining materiality.11


47
Here, under either standard, we do not think  that the Government's failure to take the proper  action can reasonably be viewed as having  affected the jury. Therefore, under either  standard for materiality, the error was not  fatal. First, it is apparent that the information  withheld by the prosecutor was heard by the jury.  Although the prosecutor failed to inform the jury  of Seymour's plea agreement, Seymour himself  testified about the nature of the agreement. As  the district court wrote:


48
The prosecutor's lack of candor was mitigated by  the fact that Seymour, during his testimony, made  two statements to the jury suggesting that the  incarceration recommendation was not cast in  stone. On direct examination he testified that  the "District Attorney's office said that they  would take into consideration everything that I  have done since the murder to the time of  sentencing and make whatever recommendation they  feel appropriate at that sentencing." (Tr. at  1432.) And on cross-examination he again  testified that at the sentencing the district  attorney was free to make "whatever  recommendation he felt was proper." (Tr. at  1632.)


49
R.34 at 53. Thus, the jury was aware that Seymour  had a specific incentive to testify favorably in  the hope of further reducing his sentence.  Further, as the district court found, cross-  examination of Seymour drew out "other evidence  regarding Seymour's self-interest in testifying  against [Ms. Braun]." Id. at 55. Seymour was  cross-examined for approximately a week, and the  jury heard extensive evidence demonstrating his  lack of credibility.


50
In short, we do not believe that the  prosecution's conduct had a substantial and  injurious effect or influence in determining the  jury's verdict. See Brecht v. Abrahamson, 507  U.S. 619, 637 (1993).

Conclusion

51
For the foregoing reasons, the judgment of the  district court is reversed.

REVERSED


Notes:


1
 The text of sec. 974.02 provides:
(1)  A motion for postconviction relief other  than under s. 974.06 by the defendant in a  criminal case shall be made in the time and  manner provided in ss. 809.30 and 809.40. An  appeal by the defendant in a criminal case from a  judgment of conviction or from an order denying a  postconviction motion or from both shall be taken  in the time and manner provided in ss. 808.04(3),  809.30 and 809.40. An appeal of an order or  judgment on habeas corpus remanding to custody a  prisoner committed for trial under s. 970.03  shall be taken under ss. 808.03(2) and 809.50,  with notice to the attorney general and the  district attorney and opportunity for them to be  heard.
(2)  An appellant is not required to file a  postconviction motion in the trial court prior to  an appeal if the grounds are sufficiency of the  evidence or issues previously raised.
Wis. Stat. Ann. sec. 974.02.


2
 The text of sec. 974.06 provides:
(1)  After the time for appeal or postconviction  remedy provided in s. 974.02 has expired, a  prisoner in custody under sentence of a court or  a person convicted and placed with a volunteers  in probation program under s. 973.11 claiming the  right to be released upon the ground that the  sentence was imposed in violation of the U.S.  constitution or the constitution or laws of this  state, that the court was without jurisdiction to  impose such sentence, or that the sentence was in  excess of the maximum authorized by law or is  otherwise subject to collateral attack, may move  the court which imposed the sentence to vacate,  set aside or correct the sentence.
(2)  A motion for such relief is a part of the  original criminal action, is not a separate  proceeding and may be made at any time. The  supreme court may prescribe the form of the  motion.
(3)  Unless the motion and the files and records  of the action conclusively show that the person  is entitled to no relief, the court shall:
(a)  Cause a copy of the notice to be served  upon the district attorney who shall file a  written response within the time prescribed by  the court.
(b)  If it appears that counsel is necessary and  if the defendant claims or appears to be  indigent, refer the person to the state public  defender for an indigency determination and  appointment of counsel under ch. 977.
(c)  Grant a prompt hearing.
(d)  Determine the issues and make findings of  fact and conclusions of law. If the court finds  that the judgment was rendered without  jurisdiction, or that the sentence imposed was  not authorized by law or is otherwise open to  collateral attack, or that there has been such a  denial or infringement of the constitutional  rights of the person as to render the judgment  vulnerable to collateral attack, the court shall  vacate and set the judgment aside and shall  discharge the person or resentence him or her or  grant a new trial or correct the sentence as may  appear appropriate.
(4)  All grounds for relief available to a  person under this section must be raised in his  or her original, supplemental or amended motion.  Any ground finally adjudicated or not so raised,  or knowingly, voluntarily and intelligently  waived in the proceeding that resulted in the  conviction or sentence or in any other proceeding  the person has taken to secure relief may not be  the basis for a subsequent motion, unless the  court finds a ground for relief asserted which  for sufficient reason was not asserted or was  inadequately raised in the original, supplemental  or amended motion.
(5)  A court may entertain and determine such  motion without requiring the production of the  prisoner at the hearing. The motion may be heard  under s. 807.13.
(6)  Proceedings under this section shall be  considered civil in nature, and the burden of  proof shall be upon the person.
(7)  An appeal may be taken from the order  entered on the motion as from a final judgment.
(8)  A petition for a writ of habeas corpus or  an action seeking that remedy in behalf of a  person who is authorized to apply for relief by  motion under this section shall not be  entertained if it appears that the applicant has  failed to apply for relief, by motion, to the  court which sentenced the person, or that the  court has denied the person relief, unless it  also appears that the remedy by motion is  inadequate or ineffective to test the legality of  his or her detention.
Wis. Stat. Ann. sec. 974.06.


3
 Prior to Loop, in Peterson v. State, 195 N.W.2d  837 (Wis. 1972), the Supreme Court of Wisconsin  had held that exhaustion normally would be  required before a sec. 974.06 motion could be  brought:
The postconviction motion under sec. 974.06,  Stats., is not a substitute for a motion for a  new trial. A sec. 974.06 motion can be made only  after the defendant has exhausted his direct  remedies which consist of a motion for a new  trial and appeal.
Id. at 845; see also State v. Smith, 198 N.W.2d  630, 631-32 (Wis. 1972) (quoting Peterson).  However, this exhaustion requirement did not  apply to constitutional claims. In Loop, the  Supreme Court of Wisconsin clarified that  Peterson did not preclude a defendant from  raising in a sec. 974.06 motion a constitutional  issue that could have been raised on direct  appeal.


4
 We note that the cases cited by the State for the  proposition that claims may not be relitigated  under sec. 974.06 are cases that postdate Ms.  Braun's escape. Thus, their holdings could not  operate to put Ms. Braun in default because she  could not be aware of them at the time of her  escape. See Beamon v. State, 286 N.W.2d 592, 595  (Wis. 1980); see also State v. Brown, 291 N.W.2d  528, 531 (Wis. 1980) (quoting Beamon).


5
 The parties dispute whether the prosecutorial  misconduct claim raised here by Ms. Braun was  raised in her initial motion under sec. 974.02 in  the state trial court. The State argues that the  prosecutorial misconduct claim here is identical  to that earlier claim and, thus, that Ms. Braun  is improperly attempting to relitigate it. We  have shown that, even if it is the same claim,  the fact that it was identical to the earlier  claim would not preclude its inclusion in the  later sec. 974.06 motion.


6
 See Bell v. Jarvis, 198 F.3d 432, 437-42 (4th  Cir. 2000) (habeas relief necessary when  courtroom was closed to all but "family members  and friends of the prosecutrix" during  "empaneling of the jury, the court's introductory  statements to the jury, the attorneys' opening  statements, and the testimony of the  prosecutrix"); Brown v. Andrews, 180 F.3d 403,  404-09 (2d Cir. 1999) (granting habeas relief  because trial court closed courtroom for  testimony of police officer); Guzman v. Scully,  80 F.3d 772, 773-77 (2d Cir. 1996) (habeas relief  necessary when court excluded four spectators  from cross-examination of prosecution witness,  including two women either relatives or friends  of the defendant); Vidal v. Williams, 31 F.3d 67,  69 (2d Cir. 1993) (writ granted after court  excluded defendant's parents from testimony of  police officer); Davis v. Reynolds, 890 F.2d  1105, 1108-11 (10th Cir. 1989) (granting habeas  relief when court had "cleared the courtroom"  during a preliminary hearing); Rovinsky v.  McKaskle, 722 F.2d 197, 198-202 (5th Cir. 1984)  (habeas appropriate when state trial court held  motion hearing in camera); United States ex rel.  Bennett v. Rundle, 419 F.2d 599, 603 (3d Cir.  1969) (exclusion of "all persons other than [the  defendant], the attorneys, the witnesses and  court officials"); Lewis v. Peyton, 352 F.2d 791,  791-92 (4th Cir. 1965) (writ granted when  testimony of prosecutrix was taken at her home  without entry of court order); United States v.  Kobli, 172 F.2d 919, 922-24 (3d Cir. 1949)  (reversing for new trial because of "the general  indiscriminate exclusion of the public from the  trial"); Davis v. United States, 247 F. 394, 394  (8th Cir. 1917) (courtroom "cleared of all  spectators except relatives of the defendants,  members of the bar, and newspaper reporters, and  a bailiff at the door was instructed to admit  none but those of the excepted classes"); Kelly  v. Meachum, 950 F. Supp. 461, 467-68 (D. Conn.  1996) (granting habeas relief when witness'  cross-examination was closed to public); Ip v.  Henderson, 710 F. Supp. 915, 916-20 (S.D.N.Y.)  (when "trial judge closed the courtroom during  the testimony of a government witness," habeas  relief necessary), aff'd, 888 F.2d 1376 (2d Cir.  1989); Santos v. Brown, 596 F. Supp. 214, 215-19  (D.R.I. 1984) (writ granted when, "[d]uring the  testimony of the complaining witness, the trial  judge excluded spectators from the courtroom over  the objection of the defense attorney and without  an evidentiary hearing"); Sirratt v. State, 398  S.W.2d 63, 63-67 (Ark. 1966) (reversing  conviction when courtroom was "cleared of all  spectators"); Thompson v. People, 399 P.2d 776  (Colo. 1965) (en banc) (requiring new trial when  district court excluded all but relatives,  officials, and attorneys); State v. Ortiz, 981  P.2d 1127, 1138-39 (Haw. 1999) (new trial  necessary when trial was closed "to all of  Ortiz's family members"); State v. Lawrence, 167  N.W.2d 912, 913-19 (Iowa 1969) (reversing  conviction when the public was entirely excluded  during the reading of jury instructions);  Commonwealth v. Marshall, 253 N.E.2d 333, 335  (Mass. 1969) (court excluded "defendant's  relatives and friend"); State v. Schmit, 139  N.W.2d 800, 807 (Minn. 1966) (court allowed only  "members of the bar and press" to watch trial);  State v. Klem, 438 N.W.2d 798, 799-803 (N.D.  1989) (remanding for new trial when, during one  witness' testimony, court was cleared of "all  persons except court personnel, parties,  attorneys, jurors, and a 'representative of the  public media'"); People v. Kan, 574 N.E.2d 1042,  1043-45 (N.Y. 1991) (new trial necessary when  courtroom was closed "to all spectators,"  including defendant's family, "during the  testimony of the cooperating accomplice and of  the two undercover police officers"); Addy v.  State, 849 S.W.2d 425, 429 (Tex. Ct. App. 1993)  (exclusion of "appellant's friends"); State ex  rel. Stevens v. Circuit Court, 414 N.W.2d 832,  837 (Wis. 1987) (court "only allow[ed] news media  attendance").


7
 The Supreme Court has held that defendants have a  right to the presence of their friends in court.  See Oliver, 333 U.S. at 271-72 ("[W]ithout  exception all courts have held that an accused is  at the very least entitled to have his friends,  relatives and counsel present, no matter with  what offense he may be charged."). However, at  Ms. Braun's trial, her counsel specifically  disavowed any relationship between the defense  and Mane
THE COURT: . . . I do remember particularly the  State putting something on the record with  respect to Mr. Mane.
MR. LOWE [Assistant District Attorney]: Yes, we  did.
THE COURT: And with respect to [Mane's]  friendship with counsel for the defense and later  in meeting the people--the defendant and others.
MR. SHELLOW [counsel for Ms. Braun]: One moment,  friendship with counsel for the defense? He  apparently conveyed me in his taxicab on one  occasion.
THE COURT: Well, he said he was a friend of  yours.
MR. SHELLOW: I don't think he was.
THE COURT: He said he knew you and anyone that  knows you is a friend of yours.
Tr. 48 at 1111-12.


8
 We also note the analysis of the Court of Appeals  for the Fifth Circuit, in a case where the trial  court excluded some members of the general  public:
In this case, some members of the public were  admitted; the courtroom was at least three-  fourths full; the transcript of the trial became  public record. Particularly important is the fact  that the news media were admitted. The published  reports of the trial were lengthy and complete.  The defendant's relatives and clergymen were  present to provide moral support and comfort to  the accused. In sum, we find none of the secrecy  of the proceedings which are condemned by the  Sixth Amendment and In re Oliver, 333 U.S. 257  (1948) . . . . We conclude that the denial of  one's right to a public trial is not at issue  where "[t]here was no in camera or secret trial.  [The trial] was held in a public courtroom with  attorneys, court reporters, court attendants and  at least some outsiders present." . . .  "Certainly under modern conditions, when friends  of the accused, the representatives of the press,  and those necessary to the proper conduct of the  trial are present, the defendant receives every  safeguard insured by a trial open to the general  public."
Aaron v. Capps, 507 F.2d 685, 687-88 (5th Cir.  1975) (citations omitted).


9
 Because we hold that there was no violation of  Ms. Braun's right to a public trial, we need not  determine whether, consistent with Teague v.  Lane, 489 U.S. 288 (1989), the "no harmless  error" rule of Waller may be applied  retroactively in a federal habeas proceeding.


10
 See, e.g., Giglio v. United States, 405 U.S. 150,  155 (1972) (holding that key witness' credibility  was "an important issue in the case, and evidence  of any understanding or agreement as to a future  prosecution would be relevant to his credibility  and the jury was entitled to know of it"); United  States v. Scroggins, 939 F.2d 416, 421 (7th Cir.  1991) (describing the terms of a prosecution  witness' plea agreement as "obvious impeachment  material").


11
 Other circuits have also explained the difference  between the Bagley standard and the Agurs  standard. See United States v. Gambino, 59 F.3d  353, 364-65 (2d Cir. 1995) (finding that although  a Brady violation occurred, the prosecutor did  not rely on perjury, and thus "the lower standard  of materiality is not triggered"); Gilday v.  Callahan, 59 F.3d 257, 268 (1st Cir. 1995)  (explaining that "in the non-perjury setting, all  that is required or appropriate is the one-step  Bagley inquiry into reasonable probability," but  that "a prosecutor's knowing use of false  testimony presents a different analytical  situation"); United States v. Duke, 50 F.3d 571,  577 (8th Cir. 1995) (describing the difference in  standards); United States v. Alzate, 47 F.3d  1103, 1109-10 (11th Cir. 1995) (noting the Bagley  standard and explaining that "[a] different and  more defense-friendly standard of materiality  applies where the prosecutor knowingly used  perjured testimony"); Fitzpatrick v. Whitley, 992  F.2d 491, 497 (5th Cir. 1993) (observing that  "different standards of materiality apply to  Brady claims and claims that the prosecution has  knowingly used perjured testimony or false  evidence" and describing the standard for the  latter as "considerably less onerous"); United  States v. O'Dell, 805 F.2d 637, 641 (6th Cir.  1986) (acknowledging the difference in the  standards).


