                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

KARL ADOLPH FRANTZ,                 
            Petitioner-Appellant,         No. 05-16024
               v.
                                           D.C. No.
                                        CV-04-00135-WDB
HERBERT HAZEY; DORA B. SCHRIRO,
Director,                                   OPINION
          Respondents-Appellees.
                                    
       Appeal from the United States District Court
                for the District of Arizona
      William D. Browning, District Judge, Presiding

             Argued and Submitted En Banc
        March 22, 2007—San Francisco, California

                 Filed January 22, 2008

        Before: Alex Kozinski, Chief Circuit Judge,
           Mary M. Schroeder, Harry Pregerson,
      Diarmuid F. O’Scannlain, Pamela Ann Rymer,
 Sidney R. Thomas, Barry G. Silverman, Susan P. Graber,
Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez,
Marsha S. Berzon, Consuelo M. Callahan, Carlos T. Bea, and
              Sandra S. Ikuta, Circuit Judges.

               Opinion by Judge BERZON,
        with whom Chief Circuit Judge KOZINSKI,
   and Judges SCHROEDER, PREGERSON, THOMAS,
      GRABER, WARDLAW, PAEZ, and BEA join;
           Concurrence by Chief Judge Kozinski;
               Concurrence by Judge Gould



                           707
                     FRANTZ v. HAZEY                  711


                       COUNSEL

Jon M. Sands, Federal Public Defender, for the petitioner-
appellant.

Michael L. Burke, Phoenix, Arizona, for the petitioner-
appellant.

Paula K. Harms, Phoenix, Arizona, for the petitioner-
appellant.

Megan Moriarty, Assistant Federal Public Defender, for the
petitioner-appellant.

Terry Goddard, Attorney General, for the respondents-
appellees.

Randall M. Howe, Chief Counsel, Criminal Appeals Section,
State of Arizona Attorney General’s Office, for the
respondents-appellees.
712                          FRANTZ v. HAZEY
                               OPINION

BERZON, Circuit Judge:

   Karl Frantz appeals the district court’s denial of his petition
for a writ of habeas corpus. Invoking the Sixth Amendment
right to self-representation and the limits on advisory attor-
neys’ participation described in McKaskle v. Wiggins, 465
U.S. 168 (1984), Frantz challenges his exclusion from a
chambers conference in which his advisory counsel partici-
pated and discussed how the judge should respond to a query
from the deliberating jury.1 The Arizona Court of Appeals
denied Frantz’s claim on harmless error grounds. Clearly
established Supreme Court law holds, however, that a Mc-
Kaskle error is structural and therefore not subject to harmless
error analysis. Deciding this appeal first requires that we clar-
ify our approach to reviewing state court decisions that rely
on legal principles contradicting clearly established Supreme
Court law but do not necessarily reach the wrong result. Hav-
ing done so, we then proceed to consider the McKaskle issue
on its constitutional merits.

                        I.   BACKGROUND

                                     A.

   Karl Frantz was indicted for and later convicted of
attempted armed robbery of a McDonald’s restaurant in Ari-
zona. At the outset of the judicial proceedings, attorney Paul
Bates was appointed to represent Frantz and began to do so.
Before trial began, Frantz waived his right to counsel and
chose to represent himself. The trial court found Frantz com-
  1
   We recite here the facts evident from the portions of the state record
before us. While we have the transcript of the entire trial through the close
of evidence, our record lacks substantial portions of the transcripts from
various pre-trial proceedings, off-the-record discussions during the jury’s
deliberations, and sentencing.
                           FRANTZ v. HAZEY                           713
petent to do so but directed Bates to remain involved as “advi-
sory counsel.” Later, but still before trial began, attorney
Raymond Lamb replaced Bates as advisory counsel.2

   At trial, Frantz was limited to questioning witnesses from
behind the defense table. For reasons not fully explained in
the record before us, Frantz was required to wear a leg brace.
The limitation on his movement, the state appellate court later
explained, minimized the risk of prejudice from the jury’s
viewing his shackles. Further, “[t]o avoid any appearance that
[Frantz] was penalized by representing himself, the prosecutor
also examined witnesses and argued her case while seated at
the prosecution’s table.”

   Notwithstanding these restrictions, Frantz undertook most
of his own defense. He gave a statement to the jury venire;
examined and cross-examined all of the witnesses; responded
to the state’s motions to admit exhibits; stated objections to
testimony; and gave a closing argument before the jury.
Frantz also participated during trial in one bench conference
regarding questions for a witness submitted by the jury, and
in two conferences in which the judge and the parties dis-
cussed jury instructions out of the presence of the jury.

   At the first conference regarding jury instructions, both
Lamb and Frantz were present. Lamb told the court that he
believed Frantz should ask for instructions to cover the lesser
included offense of disorderly conduct. After the judge said
he would consider the suggestion, Frantz made a separate
request, without any apparent direction or input from Lamb.
Beginning, “if I may, one other thing,” Frantz asked the court
  2
   The trial court described Bates’s and later Lamb’s role as “advisory
counsel.” McKaskle, by contrast, refers to “standby counsel.” The two
terms may refer to slightly different roles. See Locks v. Sumner, 703 F.2d
403, 407 & n.3 (9th Cir. 1983) (suggesting that “standby counsel” is one
form of “advisory counsel”). For the purposes of the limitations described
in McKaskle, however, the two terms are interchangeable, and we use
them as such.
714                          FRANTZ v. HAZEY
also to consider instructing the jury on a separate lesser
included offense: assault. Frantz described why he believed
assault was a lesser included offense and rebutted the state’s
argument to the contrary, telling the court that “there is an
abundance of different types of assaults that can take place
[and] some of them don’t necessitate . . . any type of weapon
or anything.”

   After a recess, the judge conferred with the parties once
more regarding the jury instructions. Although Lamb was
present, when the court asked first whether the proposed ver-
dict forms were “agreeable” and, later, whether the parties
wanted to raise other matters related to the instructions, only
Frantz and the state prosecutor answered.

   At this latter conference regarding jury instructions, and at
other junctures during trial, Frantz also repeatedly asked the
court to admit as evidence either the tape or the transcript3 of
the 911 call made from the McDonald’s restaurant during the
incident. Frantz argued that the tape or transcript was admissi-
ble to impeach Diana Villalobos, a McDonald’s employee
who testified that Frantz approached her, demanded money,
and threatened her with a gun. Although the 911 caller stated
that the intruder had a gun — information that bolstered the
state’s case — Frantz maintained that the 911 call also con-
tained impeachment material because a woman on the tape —
whom Frantz contends is Villalobos — identified the robber
as blond, while Frantz describes his hair as brown and gray.4
  3
     Wherever possible, we have noted whether the tape of the call or the
transcript is at issue.
   4
     More specifically: During the first day of trial, Frantz told the judge he
hoped to introduce at least part of the 911 tape. After the judge dismissed
the jury for the day, the judge inquired: “Is there anything we need to
cover before tomorrow [when the jury returns] at 11?” Frantz responded,
“The 911 tapes, because I want that entered into evidence about the blond-
haired thing, description.” The judge replied, “I’ll see you at 11.” The trial
transcript shows no further response to the request.
                            FRANTZ v. HAZEY                            715
   Despite Frantz’s active and vocal advocacy, Lamb was not
silent during Frantz’s two-day trial. Lamb presented needed
exhibits to witnesses and also spoke briefly, in Frantz’s pres-
ence, on a number of issues. He stated, for example, that there
were no further questions for potential jurors during voir dire
and that there was no objection to admission of certain state
exhibits. He verified exhibit labels, cautioned Frantz to slow
down his questioning, requested aspirin for Frantz, and coun-
seled Frantz to “shut up” when Frantz identified himself in a
photograph shown to a testifying police officer.

   Lamb also participated, unaccompanied by Frantz, in a
bench conference during voir dire and in seven bench confer-
ences that took place during trial.5 During voir dire and in the
first five of these conferences during trial, the judge requested
“counsel” to approach the bench, and Lamb proceeded instead
of Frantz. At the conference during voir dire, Lamb stated that
he had no follow-up questions for a prospective juror. In one

   On the second day of trial, when the issue surfaced again during the
conference regarding jury instructions, Frantz responded to the judge’s
concern that the tape was hearsay by stating that he “want[ed] to use it to
impeach the victim due to the fact that she gives totally arbitrary testimo-
ny.” The judge did not rule on the question, stating that he would “con-
sider [the request] as individual events take place.”
   Frantz again pursued the issue when he called Villalobos, who had pre-
viously testified for the state, as a witness for the defense. After Frantz
examined Villalobos about her memory of the intruder’s face, Lamb asked
in Frantz’s presence to admit into evidence the call transcript. A bench
conference then began, at which Lamb represented Frantz on the topic.
   5
     We use the term “bench conferences” to refer to conferences with the
judge that took place while the jurors were present, but presumably out of
their earshot.
   The bench conferences are distinct from the earlier described confer-
ences in which jury instructions were discussed. During those conferences,
the jury was not in the courtroom.
   Neither any evidence in the record nor the state court’s factual findings
clearly explain why Lamb alone attended these conferences.
716                        FRANTZ v. HAZEY
bench conference during trial, Lamb conceded the prosecu-
tor’s objection to a report that Frantz previously stated he
wished admitted. In three others, Lamb reviewed questions
submitted by the jury for specific witnesses and stated that he
had no objection; the record does not show whether Frantz
also reviewed the questions or whether Frantz and Lamb dis-
cussed them prior to the bench conferences. In the fifth con-
ference during trial, the court reminded Lamb to reserve
Frantz’s “Rule 20” right,6 and Lamb advised the court that he
was going to try to persuade Frantz not to make an opening
statement before the presentation of defense witnesses.7

   In the final two bench conferences, Lamb argued for the
admission of several pieces of evidence: an officer’s testi-
mony about what a witness told her, portions of Frantz’s bank
records, and the tape or transcript of the 911 call. The first
such conference began when Frantz asked, “Can we
approach?” Lamb approached the bench without Frantz and
began the discussion by stating that “Frantz want[ed] [him] to
suggest” that the door had been opened for the officer’s testi-
mony about what witnesses told her. In the discussion that
followed, the judge changed the subject to the 911 tape, which
Frantz had previously asked the court to admit. Lamb told the
court that Frantz was “fixated” on the question of the robber’s
hair color. But the judge did not rule on the admissibility of
the tape; he simply upheld the objection to the officer’s testi-
mony.

  The last bench conference began after Lamb told the court
in Frantz’s presence, “We have some proposed exhibits.”
Lamb and the prosecutor approached the bench and discussed
  6
    Arizona Rule of Criminal Procedure 20 allows defendants to make
motions for a judgment of acquittal.
  7
    A few seconds later, Lamb reported back that he had successfully per-
suaded Frantz not to make the statement. Shortly thereafter, Frantz fol-
lowed up on the Rule 20 discussion, moving on his own behalf for a
judgment of acquittal.
                        FRANTZ v. HAZEY                      717
admission of the bank records and the transcript of the 911
call. The judge ruled admissible a portion of the bank records
and suggested that, with the proper foundation, he would
allow into evidence at least portions of the 911 call transcript,
either under an exception to the hearsay rule or as admissible
non-hearsay. Lamb stated, however, that he would advise
Frantz that the bank records “should suffice, that that is [sic]
— that will give him better grounds to argue [the call tran-
script], and maybe we can dispense with that.” The judge
never explicitly ruled on the 911 call transcript. Shortly after
Lamb asked “for a minute to talk to [his] client” and the court
ruled on the bank records, Frantz withdrew his request for the
transcript.

  Neither the 911 tape nor the transcript of the call was thus
ever presented to the jury at trial. But, critically for this
appeal, the question of the tape arose again, and Lamb, alone,
addressed the question before the court.

   While deliberating, the jury submitted questions related to
the tape of the 911 call and to a statement from a “manager,”
presumably of the McDonald’s restaurant. The judge
addressed the two questions in a chambers conference
attended by Lamb and the prosecutor, but not Frantz.

   As we explain in more detail below, nothing in the record
explains the circumstances of Frantz’s exclusion from the
chambers conference, but the record does explain what hap-
pened at the conference: The state agreed to release the tape
“if that’s what the defendant wants to do.” Lamb rejected the
state’s offer, replying, “He doesn’t want it,” and stating that
the answer to the jurors’ question “will be as [the judge] origi-
nally framed it.” Responding “okay” to Lamb’s statement, the
court denied the jury’s request, and later instructed the jurors
that they should simply rely on their recollection of the evi-
dence admitted during trial.

   Frantz was convicted and sentenced to a 135-month prison
term.
718                        FRANTZ v. HAZEY
                                   B.

   Upon affirmance of his conviction and sentence on direct
appeal, Frantz filed a petition for post-conviction relief pursu-
ant to Arizona Rule of Criminal Procedure 32. Among other
claims, he contended that his exclusion from the chambers
conference regarding the jury’s inquiries during deliberations
violated his Fifth, Sixth, and Fourteenth Amendment rights.
In support of that proposition, he cited McKaskle, which
establishes limitations on standby counsel’s assistance to a
criminal defendant who has exercised his Sixth Amendment
right to self-representation. Frantz argued that he should have
been able to discuss the jury’s request with the judge himself.
He claimed that Lamb either inaccurately communicated with
him about the jury’s request or failed to communicate with
him at all. Specifically, Frantz’s petition stated that “advisory
counsel told Defendant that part of [the] 911 transcript was
wanted, but only the part the State wanted to further prove
guilt of Defendant and not all [the] 911 tape as requested by
the jury.” The declaration that Frantz submitted with the peti-
tion worded the allegation differently: that “[o]n the final day
of trial . . . advisory counsel, Ray Lamb, did not tell [him] the
jury wanted to hear [the] 911 tapes, nor to have them played
to the jury.”

   The state trial court rejected Frantz’s contentions without
holding a hearing on them. In particular, the trial court
accepted the averment in the state’s response brief that, as the
court summarized, “[w]hen the question was presented to the
Petitioner [sic] was in a holding cell and was not present in
the courtroom. Advisory counsel consulted with the Petitioner
and advised the court that the Petitioner did not wish the tape
to be played.” The state’s brief had so asserted, but included
no evidence proving the allegation.8 The state Court of
  8
   The state’s brief simply stated: “[A]s the Court will recall, during
deliberations when the jury questions came in, advisory counsel went to
the holding cell in Superior Court and discussed the questions with the
defendant. After the question was discussed, advisory counsel reported the
defendant’s position to the State and the Court in chambers.”
                            FRANTZ v. HAZEY                             719
Appeals rejected the trial court’s factual finding, noting that
Frantz had submitted a contrary allegation under oath and
that, under state law, the trial court was therefore obliged for
purposes of summary determination to assume that Frantz’s
allegation was true. Nevertheless, the Court of Appeals held,
Frantz’s exclusion from the chambers conference did not
merit relief.

   The appellate court did not address whether Frantz’s exclu-
sion from the conference was unconstitutional under Mc-
Kaskle. Rather, it denied relief because it concluded that any
error did not prejudice Frantz. “[W]e fail to see how [playing
the tape to the jury] would have changed the verdict,” the
court held. “Petitioner’s argument focuses on the fact that the
911 caller described the suspect as having blond hair, whereas
he claims he has brown and gray hair. But petitioner did not
pursue a misidentification defense at trial.”

   Upon denial of all his claims for relief, Frantz petitioned
for further review by the Arizona Supreme Court. After the
state Supreme Court denied review, Frantz filed the federal
habeas petition that resulted in this appeal, challenging, inter
alia, his exclusion from the chambers conference. The district
court denied relief but granted a certificate of appealability
(COA) with regard to that claim and two others.9
   9
     The COA also covers Frantz’s claims that he was improperly denied
access to a law library and that his appointed counsel, Bates, was ineffec-
tive during plea negotiations when he failed to investigate the state’s alle-
gation that Frantz committed the offense while on probation for a Florida
offense. We deny both these claims in a memorandum disposition filed
simultaneously with this opinion.
   In addition to several other claims, the COA did not cover a claim
closely related to the one we discuss here. On direct appeal, Frantz chal-
lenged his exclusion from bench conferences during trial. The state court
concluded that the claim was best raised in state post-conviction relief pro-
ceedings, in which Frantz could develop a record. Frantz did not raise the
issue again in his petition for post-conviction relief in state court. On
habeas review, the district court concluded that the claim was not properly
raised because “Petitioner failed to clearly state the federal law bases for
his claim and he failed to follow the [state] appeals court’s instruction to
develop a record on the issue in post-conviction proceedings.”
720                          FRANTZ v. HAZEY
   We address only Frantz’s exclusion from the chambers con-
ference.10 Based on the uncontested record evidence, we con-
clude that Frantz’s Sixth Amendment rights could have been
violated by his exclusion from the conference. But we remand
for an evidentiary hearing on several critical questions unan-
swered by the record before us. Before we analyze the merits
of Frantz’s McKaskle claim, however, we clarify the scope of
our review of the Arizona Court of Appeals’ decision.

       II.   AEDPA ERROR AND SCOPE OF REVIEW

   Here is the dilemma we face: The Antiterrorism and Effec-
tive Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-
132, § 104, 110 Stat. 1214, 1218-19, provides that, if a claim
was adjudicated on the merits in state court proceedings, then

       [a]n application for a writ of habeas corpus . . . shall
       not be granted . . . unless the adjudication of the
       claim —

             (1) resulted in a decision that was contrary
             to, or involved an unreasonable application
             of, clearly established Federal law, as deter-
             mined by the Supreme Court of the United
             States; or
  10
     In doing so, we must accept any state court factual findings as true,
absent any evidence to the contrary. 28 U.S.C. § 2254(e). Unlike the Judge
Gould’s concurrence, Gould concurrence at 753-54, we do not consider
the federal district court’s statements that Frantz “was not in the court-
room but in a holding cell” at the time of the conference and that
“[a]dvisory counsel consulted with [Frantz]” regarding the conference.
The finding is clearly erroneous on the present record. The state trial
court’s findings to this effect were vacated by the state Court of Appeals
and thus merit no deference. See Buckley v. Terhune, 441 F.3d 688, 694
(9th Cir. 2006). Furthermore, as explained earlier, the record includes only
an unsupported averment to this effect. The sole evidence submitted in
state or federal court regarding this matter is Frantz’s affidavit, which con-
tradicts the district court’s statement.
                             FRANTZ v. HAZEY                             721
           (2) resulted in a decision that was based on
           an unreasonable determination of the facts
           in light of the evidence presented in the
           State court proceeding.

28 U.S.C. § 2254(d). As we develop later, the state appellate
court’s decision in this case was on the merits, but was “con-
trary to . . . clearly established Federal law, as determined by
the Supreme Court” because it applied an improper rule in
determining that any constitutional error was not prejudicial.
But the state Court of Appeal never addressed whether there
was constitutional error in excluding Frantz from the confer-
ence regarding the jury’s requests.

   Our case law concerning the appropriate approach under
AEDPA cases like this one, in which the state court decision
satisfies the § 2254(d)(1)11 standard for the grant of habeas
corpus relief but leaves a dispositive constitutional issue
undecided, is murky.12
  11
      Unless otherwise stated, all statutory citations in this opinion are to
sections of 28 U.S.C.
   12
      We have not, for example, always reviewed a state court’s choice of
legal standards under the “contrary to” prong of § 2254(d)(1), as we do
today. Some of our earlier cases have suggested that the choice of an
appropriate legal standard is unreviewable because it constitutes a court’s
“reasoning,” see, e.g., Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir.
2002), or that such a choice is reviewable only under the “unreasonable-
ness” prong of § 2254(d)(1), see, e.g., Williams v. Warden, 422 F.3d 1006,
1010 (9th Cir. 2005), cert. denied, 547 U.S. 1003 (2006).
   We have also not consistently stated whether identification of a
§ 2254(d)(1) error is alone sufficient to warrant habeas relief. One line of
cases, exemplified by Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th
Cir.), cert. denied, 546 U.S. 944 (2005), has held that a state court’s choice
of the wrong legal standard — or some other § 2254(d)(1) error — does
not alone justify habeas relief, and that further review of a petitioner’s
claim is necessary to grant a writ of habeas corpus. See, e.g., id. at 1243;
see also Inthavong v. Lamarque, 420 F.3d 1055, 1059 (9th Cir. 2005) (col-
lecting cases), cert. denied, 547 U.S. 1059 (2006). In conflict with our
722                         FRANTZ v. HAZEY
   With the aid of recent Supreme Court decisions, we begin
by delineating the proper approach to federal habeas in such
circumstances, with a focus on two questions: (1) Does a state
court’s use of the wrong legal standard meet the § 2254(d)(1)
criteria even if the state court’s ultimate conclusion that the
conviction was constitutional may have been correct for a dif-
ferent reason? And (2) if so, what manner of constitutional
review should follow our identification of this § 2254(d)(1)
error? In section III, we return to the merits of Frantz’s Mc-
Kaskle claim.

                                     A.

   [1] We have recognized a “latent confusion in our case law
concerning whether, under [§ 2254(d)(1)], it is necessary or
permissible for us to review the ‘reasoning’ used by the state
court, or whether we are simply to review the ‘decision’ of
that court adjudicating the merits of the petitioner’s claim.”
Sims v. Rowland, 414 F.3d 1148, 1152 n.2 (9th Cir.), cert.
denied, 546 U.S. 1066 (2005). It is now firmly established,
however, that “a decision by a state court is ‘contrary to’ [the]
clearly established law [of the Supreme Court] if it ‘applies
a rule that contradicts the governing law set forth in [Supreme
Court] cases.’ ” Price v. Vincent, 538 U.S. 634, 640 (2003)
(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000))
(emphasis added); see also Early v. Packer, 537 U.S. 3, 8
(2002) (per curiam) (“Avoiding [a ‘contrary to’ error] does
not require citation . . . [or] awareness of [Supreme Court]
cases, so long as neither the reasoning nor the result of the
state-court decision contradicts them.” (second emphasis
added)); cf. Panetti v. Quarterman, 127 S. Ct. 2842, 2855-58

holding today, another line of cases has suggested — if not explicitly
decided — that a § 2254(d)(1) error alone is sufficient to merit relief, even
when that error does not necessarily resolve the constitutionality or legal-
ity of a prisoner’s confinement. See, e.g., Kaua v. Frank, 436 F.3d 1057,
1062 (9th Cir. 2006), cert. denied, 127 S.Ct. 1233 (2007); Van Lynn v.
Farmon, 347 F.3d 735, 741 (9th Cir. 2003).
                            FRANTZ v. HAZEY                            723
(2007) (finding a § 2254(d)(1) error under the “unreasonable”
prong because the state court unreasonably applied the
Supreme Court’s procedural standards for considering such
claims). In other words, mistakes in reasoning or in predicate
decisions of the type in question here — use of the wrong
legal rule or framework — do constitute error under the “con-
trary to” prong of § 2254(d)(1).

   Indeed, except in the extremely rare circumstance in which
a state case presents facts that are materially identical to those
in a Supreme Court case, it is difficult to imagine many situa-
tions in which the result of a state court adjudication could be
contrary to clearly established Supreme Court precedent. In
this case, for example, asking whether the state court’s ulti-
mate denial of Frantz’s McKaskle claim was “contrary to”
established Supreme Court law is pointless, because Supreme
Court law dictates only the intermediate steps of analysis.
Consequently, the “decision” referred to in § 2254(d)(1) nec-
essarily encompasses the conclusions of law on which the
ultimate result in state court was based. See Williams, 529
U.S. at 412-13 (“Under the ‘contrary to’ clause, a federal
habeas court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a ques-
tion of law . . . .” (emphasis added)).

   [2] With this guiding principle in mind, we return to the
state court error in this case. By inquiring into prejudicial
effect, the Arizona Court of Appeals conducted harmless error
review of Frantz’s McKaskle claim. But, contrary to the state
court’s assumption, Supreme Court case law establishes
unequivocally that a violation of the right to self-
representation recognized in Faretta v. California, 422 U.S.
806 (1975), is structural and thus is not susceptible to harm-
less error review.13 See McKaskle, 465 U.S. at 177 n.8 (“Since
  13
    Harmless error review of constitutional “trial errors” in the context of
habeas petitions differs from harmless error review on direct appeal. See
generally Fry v. Pliler, 127 S. Ct. 2321 (2007). Where an error is struc-
724                        FRANTZ v. HAZEY
the right of self-representation is a right that when exercised
usually increases the likelihood of a trial outcome unfavorable
to the defendant, its denial is not amenable to ‘harmless error’
analysis.”); see generally United States v. Gonzalez-Lopez,
126 S. Ct. 2557, 2564 (2006) (surveying constitutional errors
characterized as structural and not subject to harmless error
analysis). Because the Arizona Court of Appeals “applie[d] a
rule that contradicts the governing law set forth in [Supreme
Court] cases,” Price, 538 U.S. at 640 (internal quotation
marks omitted), the § 2254(d)(1) standard for the grant of
habeas relief is satisfied.

                                   B.

   Having so concluded, what do we do next? Do we simply
grant habeas relief? Or do we decide the constitutional issue
that the state Court of Appeals did not decide: whether the
exclusion of Frantz from the mid-jury-deliberations confer-
ence was unconstitutional under McKaskle?

   [3] As we noted at the outset, our own cases are somewhat
unclear on that point. The Supreme Court, however, has
recently clarified our responsibility once we have found a
state court error that satisfies § 2254(d)(1): When “the
requirement set forth in § 2254(d)(1) is satisfied[, a] federal
court must then resolve the [constitutional] claim without the

tural, however, it is not subject to harmless error review of any kind on
direct appeal, see Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991),
and harmless error review also is not appropriate in habeas proceedings.
See Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993) (importing Ful-
minante’s distinction between trial errors and structural errors into the
habeas context); Gibson v. Ortiz, 387 F.3d 812, 820 (9th Cir. 2004)
(applying direct appeal definition of structural error to habeas review);
Martinez v. Garcia, 379 F.3d 1034, 1039 (9th Cir. 2004) (similar); see
also Mitchell v. Esparza, 540 U.S. 12, 15-17 (2003) (per curiam) (on
habeas review, consulting direct appeal cases to determine whether an
error was clearly established as “structural” or not).
                        FRANTZ v. HAZEY                       725
deference AEDPA otherwise requires.” Panetti, 127 S. Ct. at
2858; see also Rompilla v. Beard, 545 U.S. 374, 390 (2005)
(reviewing the prejudice requirement for an ineffective assis-
tance of counsel claim de novo after identifying a
§ 2254(d)(1) error in the state court’s evaluation of the perfor-
mance requirement); Wiggins v. Smith, 539 U.S. 510, 534
(2003) (similar); Penry v. Johnson, 532 U.S. 782, 795 (2001)
(holding that even if the state court’s decision was contrary to
Supreme Court case law, “that error would justify overturning
Penry’s sentence only if Penry could establish that the error”
was prejudicial under the pre-AEDPA standard for evaluating
prejudice); Williams, 529 U.S. at 406 (explaining that when
a federal habeas court identifies a “contrary to” error, it “will
be unconstrained by § 2254(d)(1)”). So it is now clear both
that we may not grant habeas relief simply because of
§ 2254(d)(1) error and that, if there is such error, we must
decide the habeas petition by considering de novo the consti-
tutional issues raised.

   The Supreme Court has not fully explained, however, why
that is true. We do so now, briefly, as the underlying reason-
ing may prove useful to habeas courts applying these princi-
ples.

   As the Eleventh Circuit has explained, “Section 2254 pre-
sumes that federal courts already have the authority to issue
the writ of habeas corpus to a state prisoner . . . . [I]t is not
itself a grant of habeas authority, let alone a discrete and inde-
pendent source of post-conviction relief.” Medberry v.
Crosby, 351 F.3d 1049, 1059-60 (11th Cir. 2003); see also id.
at 1056-58 (explaining the evolution of § 2254). Instead, it is
§ 2241 that provides generally for the granting of writs of
habeas corpus by federal courts, implementing “the general
grant of habeas authority provided by the Constitution.” White
v. Lambert, 370 F.3d 1002, 1006 (9th Cir.), cert. denied, 543
U.S. 991 (2004). In turn, § 2254(d), like other subsections of
§ 2254, implements and limits the authority granted in § 2241
for “a person in custody pursuant to the judgment of a State
726                            FRANTZ v. HAZEY
court.” § 2254(a). See White, 370 F.3d at 1008 (“[Section]
2254 is properly seen as a limitation on the general grant of
habeas authority in § 2241.”); see also Felker v. Turpin, 518
U.S. 651, 662 (1996) (“Our authority to grant habeas relief to
state prisoners is limited by § 2254 . . . .”). Just as, for exam-
ple, § 2254(b) restricts our underlying § 2241 and constitu-
tional authority by creating an exhaustion requirement,
§ 2254(d) establishes certain kinds of state court error as a
predicate to habeas relief “with respect to any claim that was
adjudicated on the merits in State court.”

   Where, as here, the limitations established by other subsec-
tions of § 2254 are satisfied, § 2254(a) sets out the general
standard that must be satisfied by a petition “for a writ of
habeas corpus in behalf of a person in custody pursuant to the
judgment of a State court”: The petition must rely “on the
ground that he is in custody in violation of the Constitution
or laws or treaties of the United States.” See also § 2241(c)
(extending federal courts’ general habeas authority not only to
prisoners in custody in violation of the Constitution or federal
laws but also to several other groups of prisoners).14 It is that
  14
      Section 2241(c) reads:
       The writ of habeas corpus shall not extend to a prisoner unless—
          (1) He is in custody under or by color of the authority of the
       United States or is committed for trial before some court thereof;
       or
         (2) He is in custody for an act done or omitted in pursuance of
       an Act of Congress, or an order, process, judgment or decree of
       a court or judge of the United States; or
          (3) He is in custody in violation of the Constitution or laws or
       treaties of the United States; or
           (4) He, being a citizen of a foreign state and domiciled therein
       is in custody for an act done or omitted under any alleged right,
       title, authority, privilege, protection, or exemption claimed under
       the commission, order or sanction of any foreign state, or under
       color thereof, the validity and effect of which depend upon the
       law of nations; or
         (5) It is necessary to bring him into court to testify or for trial.
                        FRANTZ v. HAZEY                      727
more general — but still limited — provision that alone gov-
erns, where the other limitations set out in § 2254(d) (and in
§ 2244) are no obstacle to the grant of habeas relief. Further,
the text of both § 2254(a) and § 2241(c) refers only to the
substantive invalidity of the confinement under the Constitu-
tion and contains no requirement of deference to state court
adjudications. Federal courts governed only by those sections,
therefore, necessarily decide the issues before them de novo,
as was done before AEDPA’s addition of § 2254(d) in 1996.
See Gratzer v. Mahoney, 397 F.3d 686, 689-90 (9th Cir.);
Chizen v. Hunter, 809 F.2d 560, 561 (9th Cir. 1986); cf. Fry,
127 S. Ct. at 2327 (in the context of harmless error review,
concluding that when a state court has made a § 2254(d)(1)
error, the pre-AEDPA habeas review standard is appropriate
for a question that the state court did not reach).

   We caution that this analysis does not dictate either a two-
stage process or any particular order of decision. For one
thing, a holding on habeas review that a state court error
meets the § 2254(d) standard will often simultaneously consti-
tute a holding that the § 2254(a)/§ 2241 requirement is satis-
fied as well, so no second inquiry will be necessary. See, e.g.,
Goldyn v. Hayes, 444 F.3d 1062, 1070-71 (9th Cir. 2006)
(finding § 2254(d)(1) error in the state court’s erroneous con-
clusion that the state had proved all elements of the crime);
Lewis v. Lewis, 321 F.3d 824, 835 (9th Cir. 2003) (finding
§ 2254(d)(1) error in the state court’s failure to conduct a con-
stitutionally sufficient inquiry into a defendant’s jury selec-
tion challenge). In this case, however, the Arizona court’s
§ 2254(d)(1) error — inappropriate use of harmless error
review — does not tell us whether Frantz’s conviction and
custody were unconstitutional. Whether it was depends on
whether McKaskle error occurred when Frantz, although rep-
resenting himself, was excluded from the chambers confer-
ence on the jury’s inquiry during deliberations. If no such
error occurred then, quite obviously, the state Court of
Appeal’s bottom line was right — the conviction was not
infected by constitutional error and should not have been
728                     FRANTZ v. HAZEY
reversed. In that event, we may not grant habeas relief under
§§ 2241 and 2254(a).

   Moreover, “AEDPA does not require a federal habeas court
to adopt any one methodology in deciding the only question
that matters under § 2254(d)(1).” Lockyer v. Andrade, 538
U.S. 63, 71 (2003). Nor does it require any particular method-
ology for ordering the § 2254(d) and § 2254(a) determination.
See Inthavong v. Lamarque, 420 F.3d 1055, 1061 (9th Cir.
2005). Sometimes, we may be able to decide the § 2254(d)(1)
issue better by deciding the constitutional issue de novo first,
when doing so would illuminate the § 2254(d)(1) analysis.
See, e.g., Weeks v. Angelone, 528 U.S. 225 (2000). In other
cases, it may make sense to address § 2254(d)(1) first. See,
e.g., Panetti, 127 S. Ct. at 2858.

   [4] In sum, where the analysis on federal habeas, in what-
ever order conducted, results in the conclusion that
§ 2254(d)(1) is satisfied, then federal habeas courts must
review the substantive constitutionality of the state custody de
novo.

                               C.

   Having established the appropriate mode of review once
the § 2254(d)(1) standard is met, we address one additional
point: Respondents suggest that, even upon de novo review,
we should consider only rationales supporting the state court
conviction that “were . . . within the contemplation of the state
court.” We generally agree, with some caveats.

   Representative of the issue that Respondents raise is Van
Lynn, a case in which the state court had erroneously denied
a defendant’s motion for self-representation by applying the
wrong standard to evaluate the defendant’s competence for
such representation. 347 F.3d at 741. The respondent argued
that, although the state court had erroneously deemed the
defendant incompetent, habeas relief was inappropriate
                           FRANTZ v. HAZEY                            729
because the court could have denied the motion on the alter-
native ground that it was untimely. Id. Reviewing the state’s
arguments, we concluded that we could not “invent an alter-
native rationale for the state court’s decision which requires
application of an entirely different and unrelated legal princi-
ple . . . and then . . . review the trial court’s decision as if it
had been made pursuant to that alternative rationale.” Id.
(emphasis added).

   [5] When we are reviewing a state court decision to decide
whether there is a § 2254(d)(1) error, the conclusion that we
reached in Van Lynn is undoubtedly correct. We confine our
§ 2254(d)(1) analysis to the state court’s actual decisions and
analysis. The text of § 2254(d)(1) demands this approach, by
pointing us to the “decision[s]” that result from state courts’
“adjudication of . . . claim[s]” and the “application[s] of . . .
law” that were “involved” in such decisions. Consistent with
the statutory text, the Supreme Court has twice cautioned fed-
eral courts to read state court decisions carefully to determine
the rule that actually governed the state court’s analysis. Hol-
land v. Jackson, 542 U.S. 649, 654-55 (2004) (per curiam);
Woodford v. Visciotti, 537 U.S. 19, 23-24 (2002) (per curiam).15

   Indeed, if we were to defer to some hypothetical alternative
rationale when the state court’s actual reasoning evidences a
§ 2254(d)(1) error, we would distort the purpose of AEDPA.
  15
    In the related context of “unreasonable application” errors, too, the
Supreme Court has focused its analysis on state courts’ actual reasoning
rather than hypothetical alternative lines of analysis. See Holland, 542
U.S. at 652 (“The Sixth Circuit erred in finding the state court’s applica-
tion of [federal law] unreasonable on the basis of evidence not properly
before the state court.”); Wiggins, 539 U.S. at 528-29 (holding unreason-
able a state court’s conclusion that an attorney’s performance was suffi-
cient because the attorney’s investigation was too narrow, without
considering separate justifications based on alternative readings of the
record); see also Oswald v. Bertrand, 374 F.3d 475, 483 (7th Cir. 2004)
(“A state court can of course be wrong without being unreasonable, and
the reasonableness of a decision ordinarily cannot be assessed without
considering the quality of the court’s reasoning . . . .”).
730                     FRANTZ v. HAZEY
AEDPA “plainly sought to ensure a level of ‘deference to the
determinations of state courts.’ ” Williams, 529 U.S. at 386
(Stevens, J., concurring) (quoting H.R. Conf. Rep. No. 104-
518, at 111 (1996)). Applying § 2254(d)(1) to a state court’s
actual analysis accords such deference. But applying the def-
erential standards in § 2254(d)(1) to evaluate analysis a state
court did not conduct is inconsistent with AEDPA deference.
Such an approach would require us to ignore rather than
respect the state court’s analysis, and it would effectively
require us to defer to states in their role as respondents in
habeas actions rather than as independent adjudicators. Such
a presumption in favor of a state party is distinct in both pur-
pose and effect from respect afforded to state courts.

   Our approach is not quite so straightforward, however,
when we are reviewing legal questions without AEDPA def-
erence. Unlike § 2254(d)(1) analysis, § 2254(a) review will
often require consideration of legal arguments not addressed
by the state court in its opinion. In this case, for example, we
must consider the McKaskle question that the state court
avoided and, in doing so, we consider the “alternative ratio-
nale” advanced by the respondents for affirming the Arizona
court’s decision.

   Nevertheless, even on § 2241 de novo review, we would
reject an alternative and unrelated legal argument of the type
advanced by the respondent in Van Lynn. As with any de
novo review, our § 2241 review is confined to the alleged
wrong and the actual course of events at trial and on appeal.
We cannot invent a constitutional sequence of events to jus-
tify that which simply did not happen. Cf. Hirschfield v.
Payne, 420 F.3d 922, 928-29 (9th Cir. 2005) (holding that the
federal court could not consider under § 2254(d)(1) a ratio-
nale offered by the state for the trial court’s denial of the peti-
tioner’s motion for self-representation when that rationale
would have constituted a discretionary denial of the motion).
Moreover, when the constitutional right itself is tied to the
reasons for a trial court’s decision, see, e.g., Van Lynn, 347
                         FRANTZ v. HAZEY                     731
F.3d at 740 (discussing the Supreme Court’s guidance on the
reasons why a trial court can deny a criminal defendant’s
motion for self representation), even on de novo review we
must focus on the trial court’s reasoning to determine whether
a constitutional violation occurred.

   We need not elaborate further today on the precise line
between those undecided issues that we will address on de
novo consideration of constitutional issues and those that we
will not. Here, the undecided issue was the logical predicate
to the one that was decided in the state Court of Appeals, and
was decided, albeit on a procedurally improper factual basis,
by the state trial court. And the U.S. Supreme Court has
repeatedly considered such inherently linked issues de novo
on habeas once the § 2254(d)(1) requirement is met.

   [6] In sum, then, we hold the following: To identify a
§ 2254(d)(1) “contrary to” error, we analyze the court’s actual
reasoning, to the extent that the Supreme Court has dictated
how a state court’s reasoning should proceed. Identification of
such an error is not the end of a federal habeas court’s analy-
sis, however, unless that identification necessarily means that
the state court’s determination of the ultimate constitutional or
legal question is also wrong. Instead, pursuant to § 2254(a)
and pre-AEDPA standards of review, we must also evaluate
de novo the petitioner’s constitutional claims, without limit-
ing ourselves to the reasoning of the state court.

                  III.   McKaskle ERROR

  Because we have identified a § 2254(d)(1) error in the Ari-
zona state court’s opinion, we review de novo Frantz’s Sixth
Amendment claim regarding his exclusion from the chambers
conference.

                               A.

   [7] Faretta established a criminal defendant’s right to rep-
resent himself, “provided only that he knowingly and intelli-
732                     FRANTZ v. HAZEY
gently forgoes his right to counsel and that he is able and
willing to abide by rules of procedure and courtroom proto-
col.” McKaskle, 465 U.S. at 173. But Faretta did not recog-
nize an unqualified right for pro se defendants to stand alone
in a courtroom. Instead, the Supreme Court allowed states to
appoint “standby counsel” to aid pro se defendants “if and
when [they] request[ ] help, and to be available to represent
the accused in the event that termination of the defendant’s
self-representation is necessary.” Faretta, 422 U.S. at 834
n.46.

   [8] In McKaskle, the Supreme Court reiterated Faretta’s
holding concerning standby counsel and indicated that rather
than creating an “absolute bar on standby counsel’s unsolic-
ited participation,” 465 U.S. at 176, Faretta allows standby
counsel sometimes to participate without violating an individ-
ual’s right to self-representation. Id. at 177. But to clarify the
distinction between permissible and impermissible interfer-
ence by standby counsel, McKaskle “impose[d] some limits
on the extent of standby counsel’s unsolicited participation,”
id. at 177, so as to protect the Faretta right.

   [9] Those limitations are, first, that “the pro se defendant
is entitled to preserve actual control over the case he chooses
to present to the jury,” and, second, that “participation of
standby counsel without the defendant’s consent should not
be allowed to destroy the jury’s perception that the defendant
is representing himself.” Id. at 178. Because the conference
that Frantz challenges took place out of sight of the jury, we
are concerned today with the first, but not the second, of Mc-
Kaskle’s two core limitations.

   [10] McKaskle offers considerable guidance as to when a
standby attorney’s participation so reduces a defendant’s con-
trol as to violate Faretta. On the one hand, “[i]f standby coun-
sel’s participation over the defendant’s objection effectively
allows counsel to make or substantially interfere with any sig-
nificant tactical decisions . . . or to speak instead of the defen-
                           FRANTZ v. HAZEY                      733
dant on any matter of importance, the Faretta right is eroded.”
Id. at 178 (emphasis in original). On the other hand, standby
counsel may assist in two ways: (1) “in overcoming routine
procedural or evidentiary obstacles to the completion of some
specific task, such as introducing evidence or objecting to tes-
timony, that the defendant has clearly shown he wishes to
complete,” id. at 183; and (2) by “help[ing] to ensure the
defendant’s compliance with basic rules of courtroom proto-
col and procedure.” Id.

   Applying this guidance, we conclude that Lamb’s solo par-
ticipation in the chambers conference may well have violated
Frantz’s right to self-representation, but that we need some
further development of the record before we can decide the
ultimate constitutional question. We first hold that, even if
Lamb accurately portrayed Frantz’s wishes, unconsented-to
exclusion from the conference would so substantially reduce
Frantz’s ability to shape and communicate his own defense as
to violate his Faretta rights. Having so concluded, we then
consider whether we can determine from the present record
that Frantz did not accede to Lamb’s participation, or whether
instead we must remand for an evidentiary hearing on the
question.

                                   B.

  [11] The chambers conference involved two questions rele-
vant to this case: (1) whether the jury, at its own request,
should be allowed to hear the 911 tape; and (2) if the tape was
not admitted, how the judge should respond to the jury’s
request.16 Neither question fell within McKaskle’s categorical
  16
    The transcript in our record of the conference reads:
  THE COURT: Let’s go on the record.
  Show the presence of counsel but not the defendant.
  We received jury questions No. 1 and 2. I understand there were no
managers’ statements taken; is that correct?
734                         FRANTZ v. HAZEY
exceptions to Faretta protection. Certainly, neither involved
the basic procedural issues contemplated by McKaskle as
appropriate for intercession by standby counsel. See 465 U.S.
at 184 (excusing standby counsel’s participation in matters of
“basic mechanics” such as “informing the court of the where-
abouts of witnesses, supplying [the defendant] with a form
needed to elect to go to the jury at the punishment phase of

  MS. GARCIA [for the state]: Yeah.
  MR. LAMB: That’s correct.
  THE COURT: And I further agree that — further understand that the
State would agree to play the 911 tape to the jury; is that correct?
  MS. GARCIA: Yeah, if that’s what the defendant wants to do.
  MR. LAMB: He doesn’t want it.
  THE COURT: Okay.
  MR. LAMB: The question will be as you originally — the answer will
be as you originally framed it.
   THE COURT: What we might do is clarify that — my proposed answer
was, The 911 tape was not, nor was any manager’s statement, admitted
into evidence. Please refer to my instructions.
   What we might do to clarify this and state: The 911 tape was not admit-
ted into evidence and no manager’s statement was ever taken.
  MS. GARCIA: That’s fine, or —
  MR. LAMB: Well, I’m sure somebody must have talked to the man-
ager.
[discussion follows between Lamb and Garcia] . . .
   THE COURT: I could simply say, You must rely on your collective rec-
ollection of the facts and the exhibits already admitted into evidence.
  MR. LAMB: That’s fine.
  THE COURT: Okay. What I have written here is: “You must rely on
your collective recollection of the testimony and the exhibits admitted into
evidence. Please refer to my instructions.”
  MR. LAMB: Fine, Judge.
  THE COURT: Okay. That’s fine.
                            FRANTZ v. HAZEY                             735
trial, explaining to [the defendant] that he should not argue his
case while questioning a witness”). And both questions dis-
cussed at the chambers conference involved far more than
“routine . . . obstacles to the completion of some specific task
. . . that the defendant ha[d] clearly shown he wishe[d] to
complete.” Id. at 183. Both the substance of the jury’s request
— for evidence not admitted at trial — and the judge’s appar-
ent willingness to consider granting it were highly unusual.17
Moreover, Frantz had not earlier established his position on
the jury’s inquiry, as the request had just then been made. The
upshot is that Lamb’s participation was entirely distinct from
that of the standby attorney in McKaskle, who — with the
Supreme Court’s approbation — questioned a witness to
establish “an appropriate predicate” only after the defendant
sought in open court to introduce the very evidence himself
and encountered difficulty because of the lack of such predi-
cate. Id. at 184.

   [12] As neither of the roles for standby counsel recognized
in McKaskle pertains, we must turn to the more general stan-
dard enunciated in McKaskle: Was the in-chambers proceed-
ing in which Frantz did not participate one involving “any
significant tactical decisions” or “any matter of importance”?
Id. at 178. We hold that it involved both and that, therefore,
Frantz had to be allowed to make the tactical decisions
involved and to speak for himself about them, unless he con-
sented to Lamb’s doing so instead.

  In considering these issues, we are aware of the Tenth Cir-
cuit’s observation that McKaskle “seems to stop short of a per
se rule when it states that [standby counsel’s interference in
  17
     The court’s request for input and the state’s acquiescence in providing
the tape indicate that the judge was willing to consider granting the jurors’
request. See supra note 16 (transcript of proceeding). At oral argument
before the en banc court, the respondents’ counsel stated that under state
law the tape could have been presented to the jurors on their request even
though it had not been introduced at trial.
736                    FRANTZ v. HAZEY
such matters] only ‘erode[s]’ Faretta rights. ‘Erode’ is not a
synonym for ‘violate.’ ” United States v. McDermott, 64 F.3d
1448, 1454 (10th Cir. 1995). In some cases, it may be that
standby counsel can “erode” Faretta rights without violating
them.

   This case, however, is not a borderline one of that kind.
The chambers conference involved two issues with undoubted
tactical importance. Particularly because the conference
involved discussions that Lamb and Frantz could not have
accurately predicted or rehearsed in advance, Frantz’s exclu-
sion resulted in a complete silencing of Frantz’s voice on the
matters.

   We take the two matters discussed at the in-chambers con-
ference in turn:

  (1) Whether the jurors should be allowed to hear the 911
  tape

   [13] The jurors’ request raised an issue that we have often
found quintessentially strategic: the choice of whether to
admit evidence that could either help or harm a defendant’s
case. See generally Darden v. Wainwright, 477 U.S. 168, 186
(1986); Boyde v. Brown, 404 F.3d 1159, 1174 (9th Cir.),
amended by 421 F.3d 1154 (9th Cir. 2005); Bonin v. Calde-
ron, 59 F.3d 815, 834 (9th Cir. 1995). Whether the jurors
should have been allowed to hear the 911 tape is no excep-
tion.

   Throughout the trial, Frantz indicated that he thought the
requested tape had particular significance to his defense.
Despite the damaging statement on the tape that the robber
was armed, Frantz believed that the tape could impeach the
credibility of the government’s most knowledgeable witness,
Diana Villalobos. Villalobos, the cashier whom Frantz alleg-
edly approached to rob, was the sole witness who described
the entire sequence of the robbery. She was also the only wit-
                           FRANTZ v. HAZEY                            737
ness to testify that she saw Frantz with a gun; the police offi-
cers who responded to the scene did not report seeing Frantz
with a gun and never recovered one. Accordingly, during his
two-day trial, Frantz three times tried to introduce the tape or
its transcript, and Lamb told the judge during one bench con-
ference that Frantz was “fixated” on the issue.

   After the judge suggested to Lamb that he would grant
Frantz’s request to admit the transcript of the 911 call, Frantz
withdrew the request; the record before us does not explain
why. Still, Frantz’s change of position does not diminish the
importance of any decision about the call tape or transcript.
Admitted or not, the content of the 911 call — on tape or as
transcribed — maintained its potential strategic relevance, as
the very request from the jury to hear the tape indicated.18

   [14] As a result, we conclude that, to the extent that the
chambers conference involved a decision about whether to
admit the 911 tape, participation in it was central to Frantz’s
Faretta right to control his defense. See generally McDermott,
64 F.3d at 1454 (holding that a defendant’s Faretta rights
were violated by his exclusion from bench conferences
addressing issues including admissibility of testimony and
other evidence); Oses v. Massachusetts, 961 F.2d 985, 986
(1st Cir. 1992) (per curiam) (holding that a defendant’s
Faretta rights were violated by his exclusion from bench con-
ferences covering “important issues” including “the admission
of evidence”).
  18
     The respondents urge us to consider the proceeding unimportant
because the 911 tape could not have helped Frantz’s defense. Whether or
not the tape could actually have affected the jury’s decision is irrelevant
to the question we confront here. As McKaskle recognizes, the “core of the
Faretta right” is the defendant’s “actual control over the case he chooses
to present to the jury.” 465 U.S. at 178. Our primary concern is which
choices were important to Frantz’s conception of his strategy, not whether
those choices were smart or necessary.
738                     FRANTZ v. HAZEY
  (2)   How the reply to the jury’s request should be worded

   [15] Independently of our concern regarding the decision
about the tape, we also hold that the conference triggered
Frantz’s Faretta rights because it resolved the content of the
judge’s response to the jurors’ request. The chance to shape
the jury’s interpretation of an important tactical decision is at
least as important as the chance to make the decision itself.
And regardless of the judge’s leeway in granting the jurors’
request, the substance and wording of the judge’s response
could have influenced the jurors’ interpretation of the tape’s
absence.

   We have repeatedly recognized how seriously jurors con-
sider judges’ responses to their questions. In federal court, we
allow trial judges substantial latitude in addressing jury ques-
tions. But we know that “analytically correct” answers to a
jury may unnecessarily — and improperly — influence a jury.
See Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir. 2003);
see also id. at 994-98 (discussing cases). Furthermore, even
if not improper, we recognize that some influence on the
jury’s deliberations is difficult to avoid when the jury is trou-
bled enough to seek advice. “The influence of the trial judge
on the jury is necessarily and properly of great weight . . . .
Particularly in a criminal trial, the judge’s last word is apt to
be the decisive word.” Bollenbach v. United States, 326 U.S.
607, 612 (1946) (internal quotation marks and citations omit-
ted); cf. United States v. Sacco, 869 F.2d 499, 501-02 (9th
Cir. 1989) (recognizing that a careful response to a jury’s
request for specific pieces of evidence can keep the jury from
overvaluing any one piece of evidence); United States v.
Frazin, 780 F.2d 1461, 1469 (9th Cir. 1986) (recognizing that
“[a] defendant’s participation in formulating a response to a
deadlocked jury . . . may be important to ensuring the fairness
of the verdict,” particularly because there may be hold-out
jurors).
                          FRANTZ v. HAZEY                          739
   Because of the delicate nature of such mid-deliberation
inquiries, we have recognized that defendants or their attor-
neys have a due process right to be present in conferences
when jurors’ notes are discussed, United States v. Barragan-
Devis, 133 F.3d 1287, 1289 (9th Cir. 1998), or “when a trial
court prepares a supplemental instruction to be read to a delib-
erating jury,” United States v. Rosales-Rodriguez, 289 F.3d
1106, 1110 (9th Cir. 2002). Presence is critical when a jury’s
questions are discussed because “[c]ounsel might object to the
instruction or may suggest an alternative manner of stating the
message,” id. at 1110 — a critical opportunity given the great
weight that jurors give a judge’s words. The defendant’s or
attorney’s presence may also be an important opportunity “to
try and persuade the judge to respond.” Barragan-Devis, 133
F.3d at 1289.19

   In this case, the transcript shows that the judge chose
between two instructions. He first proposed the following
response: “The 911 tape was not admitted into evidence and
no manager’s statement was ever taken.” He discarded this
initial proposal, however, after Lamb objected that it was not
clear that “no manager’s statement was ever taken.” Instead,
the judge instructed jurors much more generally — that they
“must rely on [their] collective recollection of the testimony
and the exhibits admitted into evidence.”

   It is difficult to discern how the difference between the ini-
tial proposed instruction and the judge’s actual instruction to
jurors might have affected them differently. But the two
responses were quite different, and Frantz, because he was not
present, had no opportunity to make any strategic decision
concerning them, or to develop on the spot an alternative pro-
posal once the judge changed his mind about his original, pro-
  19
    Although the McKaskle standards do not exactly mirror the “right to
be present” due process jurisprudence, the McKaskle standards do draw
upon the presence jurisprudence. McKaskle, 465 U.S. at 178.
740                    FRANTZ v. HAZEY
posed wording. That opportunity to strategize and to speak for
himself is a Faretta right protected by McKaskle.

                              C.

   Respondents argue that despite the conference’s impor-
tance, Frantz’s exclusion was constitutional because Lamb
consulted Frantz and accurately repeated Frantz’s desire not
to give the jury the 911 tape. But for reasons we explain
below, faithfully repeating Frantz’s opinion is not sufficient
under McKaskle, unless Frantz consented to have Lamb speak
for him at the conference.

   [16] Absent consent by Frantz for Lamb to participate in
his stead, whether or not Lamb accurately relayed Frantz’s
position on the tape is not dispositive of Frantz’s claim. See
generally McDermott, 64 F.3d at 1453-54 (holding that a
defendant’s rights were violated by his exclusion from sidebar
conferences even though he did not allege that he would have
conducted the conference differently than did the standby
attorney who participated). Faretta grants defendants the right
not only to manage, but also to conduct, their own defenses,
see 422 U.S. at 816-17, 834, a right that McKaskle recognized
as focusing “on whether the defendant had a fair chance to
present his case in his own way.” 465 U.S. at 177. Given Mc-
Kaskle’s references to the defendant’s right “to have his voice
heard,” id. at 174, and to “speak” for himself, id. at 177, an
advisory attorney’s appearance is not automatically an accept-
able substitute for the defendant’s as to matters of importance.

   For similar reasons, Lamb’s solo participation in the cham-
bers conference was not constitutional simply because the
record contains no objection by Frantz. The parties do not dis-
pute that the trial court found Frantz competent to represent
himself. Nor do they dispute that, despite the appointment of
advisory counsel, the trial began with the understanding that
Frantz alone was directing his representation at the trial.
Under such circumstances, McKaskle makes clear that —
                        FRANTZ v. HAZEY                      741
absent some basis for concluding that Frantz consented to rep-
resentation by Lamb as to the particular matter — Frantz’s
Faretta right remained intact. McKaskle does not place the
burden on pro se defendants to regulate each of their standby
attorneys’ actions. To the contrary, McKaskle limits standby
counsel’s “unsolicited participation” during critical proceed-
ings. 465 U.S. at 177 (emphasis added). When standby coun-
sel is appointed only to advise, the initial invocation of the
right of self-representation is generally sufficient to establish
that any participation by standby counsel other than for the
routine matters mentioned in McKaskle is “over the defen-
dant’s objection.” Id. at 178; see generally United States v.
Lorick, 753 F.2d 1295, 1299 (4th Cir. 1985) (A defendant’s
assertion of “the right [to self-representation] at the outset of
trial proceedings constituted an express and unambiguous
request that ‘standby counsel be silenced.’ This, under Mc-
Kaskle’s analysis, must be given effect as a reassertion of the
general right to pro se representation as to further proceedings
. . . .”). Moreover, Frantz, according to the government was
in “lock-up” during the conference, so it is particularly
unlikely that implied consent can be inferred from the failure
to object. As far as appears on the current record, Frantz was
never in the presence of the judge after the jury had retired,
so he could not have raised an objection to him.

   McKaskle’s rules are not, however, without exception.
Faretta established that standby attorneys can assist pro se
defendants “if and when” their help is requested. 422 U.S. at
834 n.46. And McKaskle further explained Faretta by cau-
tioning that

    “[i]n measuring standby counsel’s involvement
    against the [McKaskle] standards . . . it is important
    not to lose sight of the defendant’s own conduct. A
    defendant can waive his Faretta rights. . . . A defen-
    dant . . . who vehemently objects at the beginning of
    trial to standby counsel’s very presence in the court-
742                     FRANTZ v. HAZEY
      room, may express quite different views as the trial
      progresses.”

McKaskle, 465 U.S. at 182. It is this exception that we must
investigate further to determine whether Frantz merits relief.
Absent consent by Frantz, his exclusion from the chambers
conference was unconstitutional, for all the reasons we
described above.

   More specifically, McKaskle refers to two types of permis-
sible consent to a standby attorney’s participation. The first is
express approval for a particular action. Participation by a
standby attorney under such circumstances “is, of course, con-
stitutionally unobjectionable. A defendant’s invitation to
counsel to participate in the trial obliterates any claim that the
participation in question deprived the defendant of control
over his own defense.” Id. The second type of consent is
implied: “Even when he insists that he is not waiving his
Faretta rights, a pro se defendant’s solicitation of[,] or acqui-
escence in[,] certain types of participation by counsel substan-
tially undermines later protestations that counsel interfered
unacceptably.” Id. Thus, McKaskle concluded, “[o]nce a pro
se defendant invites or agrees to any substantial participation
by counsel, subsequent appearances by counsel must be pre-
sumed to be with the defendant’s acquiescence, at least until
the defendant expressly and unambiguously renews his
request that standby counsel be silenced.” Id. at 183 (empha-
sis added).

   [17] Implicit consent from the overall course of the trial
proceedings appears unlikely. Frantz asserted that his right to
self-representation extended to all matters involving jury
instructions. During trial, Frantz fully participated in the pri-
mary discussion regarding final jury instructions. Although
Lamb made one request during that discussion, Frantz made
an entirely separate request, arguing at length concerning why
the instructions should address assault as a lesser included
offense and responding to the judge’s queries on his proposal.
                        FRANTZ v. HAZEY                       743
The bench conferences in which Frantz did not participate did
not concern jury instructions; although they did concern some
evidentiary questions, Lamb was always within consulting
distance of Frantz and did sometimes consult with him during
the conference.

   Nevertheless, our record is far from complete. We know
that Frantz declared under oath that “[o]n the final day of trial
. . . advisory counsel, Ray Lamb, did not tell [him] the jury
wanted to hear [the] 911 tapes, nor to have them played to the
jury.” But we have no specific evidence concerning the cir-
cumstances that gave rise to Lamb’s solo participation in the
chambers conference concerning the jury’s request. The par-
ties did not develop the relevant factual record in state court
because the state trial court decided Frantz’s McKaskle claim
on summary adjudication, concluding that no facts were nec-
essary. The state court of appeals rejected that conclusion but
then went on, incorrectly, to find any McKaskle error harm-
less. As a result, the failure to hold an evidentiary hearing in
state court was not in any way the fault of the petitioner. The
hearing should be held now.

   [18] We thus remand to the district court for an evidentiary
hearing concerning the circumstances during the course of the
trial and after the jury retired that gave rise to Frantz’s exclu-
sion from the chambers conference, including whether Frantz
was accurately informed of the purpose of the conference and
given the opportunity to appear but declined to do so, and for
a determination consistent with this opinion regarding
whether Frantz’s Faretta/McKaskle rights to self-
representation were violated by that exclusion. See
§ 2254(e)(2).

                        CONCLUSION

   We conclude that, in addition to contradicting the clearly
established law of the Supreme Court, see § 2254(d)(1), the
decision of the Arizona Court of Appeals may have resulted
744                    FRANTZ v. HAZEY
in a denial of Frantz’s constitutional right to represent him-
self, but the record before us is insufficient to resolve the
issue fully. Because this court concludes in a separate disposi-
tion that Frantz’s other claims are not meritorious, we reverse
the district court’s denial of Frantz’s petition and remand for
an evidentiary hearing on the consent question described
above.

  REVERSED AND REMANDED.



KOZINSKI, Chief Judge, with whom Judges WARDLAW,
PAEZ and BEA join, concurring:

   Judge Gould spends much effort proving something that no
one disputes: That a criminal defendant who represents him-
self may use standby counsel to take certain actions on his
behalf. Judge Gould’s worry that we are “hostile to the ability
of a pro se defendant to delegate trial tasks to standby coun-
sel,” Gould Concurrence at 755, is entirely unfounded. Cases
where a pro se defendant voluntarily delegates tasks that he
could perform himself remain unaffected by today’s opinion,
which turns on a very different question: Whether petitioner
was allowed to appear at the bench conference to speak for
himself—as he was entitled to do under Faretta v. California,
422 U.S. 806 (1975), and McKaskle v. Wiggins, 465 U.S. 168
(1984)—or whether he was forced to communicate only
through standby counsel?

   On this record, this is hardly a trivial issue. Consideration
of a jury note in the midst of deliberations is a critical stage
of the proceedings where both sides are entitled to express
their views. See McKaskle, 465 U.S. at 178. When the jury
sent its note, petitioner was not in court but was being held
in custody elsewhere. Frantz’s trial judge thus had a responsi-
bility to have Frantz brought before him for the bench confer-
ence. Frantz, after all, was counsel for the defense. The
                        FRANTZ v. HAZEY                       745
prosecutor was invited to appear and did so; defense counsel
—in this case Frantz—had an equal right to be there. But
Frantz could not get there on his own: A prisoner in lockup
has no choice about whether to come into court. If the judge
orders him to appear, he is slapped into manacles and brought
in, like it or not; if the judge does not order him to appear, the
prisoner remains in his cell, no matter how badly he may want
to go before the judge. Frantz’s absence suggests that the trial
judge probably denied petitioner his right to self-
representation by failing to have him brought from his cell to
participate in the bench conference.

   It is conceivable that the judge here sent Frantz a message
inviting him to come if he wished, and Frantz chose to remain
in his cell and speak through Lamb instead. Judges seldom
send prisoners engraved invitations with stamped RSVP
cards, but maybe this judge was uncommonly polite and con-
siderate. If Frantz was given the option of attending and chose
not to, then there is no Faretta or McKaskle issue because
Frantz would have given up his right to appear pro se at the
bench conference. This is at least a theoretical possibility, and
the district court on remand can easily resolve it by taking
evidence on the narrow question of whether Frantz’s absence
was the result of his voluntary decision to remain in his cell
and communicate through his standby counsel, or was forced
on him by the judge’s wrongful failure to order Frantz
brought before him.

   And this is why the question that the concurrence finds
dispositive—whether Frantz authorized Lamb to speak for
him at the conference, Gould Concurrence at 754, 755—is
actually beside the point. It doesn’t matter whether Frantz
authorized Lamb to appear for him, if Frantz had no choice
in the matter. If Frantz was not allowed to attend the confer-
ence and speak for himself, what else could he do except
speak through Lamb? Frantz’s decision to do so, rather than
refuse to provide any defense input whatsoever, can hardly be
construed as waiving his right under Faretta and McKaskle to
746                    FRANTZ v. HAZEY
appear and speak for himself. If Frantz was not allowed to
appear, then he was denied his rights under Faretta, and the
fact that he authorized Lamb to speak for him cannot cure that
error—even if Lamb accurately conveyed Frantz’s instruc-
tions. See Bittaker v. Enomoto, 587 F.2d 400, 402-03 (9th Cir.
1978) (Faretta error is not subject to harmless error doctrine).

   Which brings me to the concurring opinion’s curious
silence on the issue that the majority finds dispositive, namely
whether Frantz voluntarily gave up his right to appear at the
bench conference. Since the majority sees the issue as pivotal,
one would think the concurrence would at least mention it, if
only to dispute its significance. But the concurrence says
nothing about it, leaving a complete mystery as to what the
author of the concurrence, and the judges joining him, think
about this issue.

   The concurrence seems to see some virtue in this, suggest-
ing that it is somehow premature to address such issues before
the record is further developed. Gould Concurrence at 756-57.
I find this very strange, because the concurrence is not the
least bit coy about expressing views on any number of legal
issues that turn on facts not yet found: “If Frantz told standby
counsel how to handle the bench conference concerning the
jury’s question about reading the 911 tape, then there is sim-
ply no Faretta violation whatsoever because a self-
representing defendant may properly use standby counsel to
assist in defense. Similarly, if Frantz directed standby counsel
concerning the conference, then there is no McKaskle issue
because McKaskle merely sets guidelines for when standby
counsel may act without the assent of the self-representing
defendant.” Gould Concurrence at 745-755 (emphasis added).
And again: “In my view, so long as Frantz adequately
instructed Lamb concerning the tape, there is no violation.”
Id. at 746 (emphasis added). And yet again: “There is no Mc-
Kaskle error if Lamb had received Frantz’s authority to speak
at the conference.” Id. (emphasis added). And still yet again:
“If Lamb was authorized by Frantz to attend the conference
                        FRANTZ v. HAZEY                       747
and state his position on the 911 tape, then there is no issue
under Faretta or McKaskle.” Id. at 756 (emphasis added).

   Of course, there’s nothing wrong with this; appellate opin-
ions usually discuss the facts and the law applicable to the
case. The quaint notion that we may not properly discuss the
law until the district court finds the facts is contradicted not
only by common sense and common experience but by the
concurrence’s own exuberant willingness to express legal
conclusions based on hypothetical facts. It also raises some
difficult questions, such as: How is the district court to know
what facts it needs to find, and how are the parties to know
what evidence to present, unless we explain to them the appli-
cable legal theory?

   If we are dissatisfied with the district court’s fact-finding
the first time around, we must tell the judge and the parties
what facts matter and, thus, what they are to do on remand.
To this end, we must adopt the legal framework pursuant to
which further proceedings are to be conducted. Or, to come
at it from the other direction: If we ask the district court to
find facts without first determining that those facts are of legal
significance, aren’t we asking the district judge and the parties
to engage in a futile exercise? Should we be free, as the con-
currence seems to believe, to say to the district court and the
parties after remand, “sorry to have bothered you, but all
those facts you found at our direction turn out to be of no
legal significance after all”?

   No responsible appellate court would say anything like
that. If we wish the district court and the parties to conduct
another trial, that’s our prerogative, but we must tell them
what facts matter and why. And to do that, we must develop
a legal theory that differentiates the legally significant facts
from the trivial ones. There is nothing premature or theoreti-
cal about this; it’s what appellate courts do all the time. If our
concurring colleagues disagree with the majority’s key legal
ruling, that it is dispositive whether Frantz was allowed to
748                         FRANTZ v. HAZEY
attend the bench conference in the flesh, they should say so
forthrightly and explain why. This magisterial gesture of
refusing to express a view as to selected legal issues, unless
and until the parties and the district court find facts that may
turn out to be irrelevant, is not judicial restraint; it is disregard
for the time and effort of the other players in the system.

  Contrary to the suggestion in the concurrence, Judge Ber-
zon’s opinion expresses no hypothetical views, nor is its dis-
cussion in the least premature. Rather, the opinion correctly
applies the law with a commendable economy of analysis. I
am pleased to join it.


GOULD, Circuit Judge, with whom Judges O’SCANNLAIN,
RYMER, SILVERMAN, CALLAHAN, and IKUTA join,
concurring in Part II and in the result:

   Although I am in agreement with the majority that an evi-
dentiary hearing is necessary to determine what was said or
decided between the Appellant-Defendant, Karl Frantz, and
his standby counsel, Raymond Lamb, in advance of the in
camera conference to address the jury’s request to hear the
911 tape, I write separately because I conclude the majority’s
rationale is unduly complicated, and intimates conclusions
about the scope of the right of self-representation under
Faretta v. California, 422 U.S. 806 (1975) and McKaskle v.
Wiggins, 465 U.S. 168 (1984), without knowledge of the
predicate facts.1
   1
     I have a concern whether the majority’s discussion of the scope of
review in Part II of the majority opinion is, in a practical sense, necessary
at this stage. Simply stated, if on remand it is determined that Lamb
attended the bench conference and acted there with Frantz’s specific direc-
tion and approval, Frantz would have no basis for relief under either the
AEDPA standard, 22 U.S.C. § 2254(d), or a de novo review of the issue
not addressed by the state court. In this sense, the majority’s expatiation
on the scope of review might appear to be gratuitous. However, I join Part
II because I agree with the substantive analysis and because our prior
cases on this issue are somewhat in disarray, yielding a value for the en
banc court to resolve the issue.
                        FRANTZ v. HAZEY                      749
   Frantz was arrested in Arizona on August 31, 1998, after he
allegedly walked into a fast-food restaurant, demanded all the
money in the register from cashier Diana Villalobos, threat-
ened to kill Villalobos if she did not hand over the money,
and finally lifted his shirt to reveal a handgun tucked in the
waistband of his pants. The police were called, Frantz left,
and shortly thereafter, not far from the restaurant, the police
picked up Frantz, who matched the description provided by
Villalobos, but the alleged handgun was never recovered.
Frantz was subsequently indicted for attempted armed rob-
bery. After his initial appointed counsel moved to withdraw,
Frantz elected to represent himself and waived appointed
counsel. After a hearing, the trial court found Frantz compe-
tent to represent himself and appointed Lamb as advisory
(standby) counsel.

   During a two-day jury trial, Frantz admitted that he had
been present at the restaurant, but argued that he was unarmed
and that the cashier misinterpreted his actions. Frantz deliv-
ered a brief opening statement, examined witnesses, and gave
a closing argument. The trial court imposed a restriction that
Frantz remain seated to minimize any prejudice where, for
security reasons, the trial court had previously found that
Frantz needed to be shackled during the proceedings because
Villalobos had expressed fear of facing him in the court room.
To mitigate any unfairness, the prosecution was likewise
required to remain seated while it put on its case. Otherwise
during the trial, to facilitate admitting items into evidence and
the use of exhibits, the trial judge permitted Lamb to approach
the bench or the witness stand at Frantz’s direction. Also due
to the shackling issue, Lamb participated at sidebar confer-
ences. In addition, Lamb occasionally assisted with objections
and offered suggestions about overcoming momentary
impasses while Frantz questioned witnesses. During the trial,
the trial judge referred to Frantz as “Counsel” or “Mr.
Frantz.”
750                         FRANTZ v. HAZEY
   After the parties rested and the case was submitted to the
jury, the jury requested that it be permitted to hear the 911
tape that recorded the restaurant manager’s call to the police,
in which the manager relayed the firsthand account by Vil-
lalobos, who was on the floor of the restaurant at the time,
that Frantz was armed and threatening to shoot people if he
was not given money. During trial, Frantz had twice sought
to admit this tape because the manager also made reference in
the call to Frantz as “blond” (again based on Villalobos’s
account) though Frantz describes himself as having “gray”
hair, a purported inconsistency that Frantz believed was
exculpatory despite the fact that he asserted no misidentifica-
tion defense. The trial court initially had rejected Frantz’s
motions, apparently on grounds that the tape was hearsay
because the manager was not in a position to see Frantz and
was only relaying Villalobos’s account.2 Although the trial
court was ultimately prepared to admit the tape upon a third
motion, Frantz then withdrew his request for unknown rea-
sons.

   The jury’s request to hear the tape during its deliberation
necessitated an in camera conference. At the time, Frantz was
in a holding cell awaiting the verdict, and Lamb attended the
conference. The prosecution had no objection to playing the
tape and the trial judge appears to have been willing to let the
jury hear it, but Lamb told the trial judge that Frantz “doesn’t
want it in.” Frantz and the State now give conflicting accounts
as to whether Lamb told Frantz that the jury wanted to hear
the tape; whether, if so, the request was fully explained; and
whether Frantz told Lamb that he did not want the jury to hear
the tape. In any event, without hearing the tape, the jury con-
victed Frantz.
  2
    I say “apparently” because the state trial court did not make an explicit
ruling grounding the exclusion of the evidence on the hearsay rule,
although before rejecting Frantz’s request the tape be admitted the state
trial court expressed concerns that it was hearsay.
                        FRANTZ v. HAZEY                        751
   The majority rightly concludes that remand is necessary to
determine what transpired between Frantz and Lamb. In
Faretta, the Supreme Court considered a rejection of a defen-
dant’s request to represent himself where the trial court relied
on California Supreme Court precedent holding that a crimi-
nal defendant had no right to self-representation under the
state and federal constitutions. 422 U.S. at 809-12, 810 n.4,
811 n.6. This posed a dilemma for the Supreme Court because
its prior precedents in Argersinger v. Hamlin, 407 U.S. 25
(1972), Gideon v. Wainwright, 372 U.S. 335 (1963), Johnson
v. Zerbst, 304 U.S. 458 (1938), and Powell v. Alabama, 287
U.S. 45 (1932), consistently had held that “the help of a law-
yer is essential to assure the defendant a fair trial.” Faretta,
422 U.S. at 832-33. In Faretta, however, the Supreme Court
concluded that an independent right to self-representation was
implied in the text, structure, and history of the Sixth Amend-
ment. Id. at 818-32. The Supreme Court, in balancing these
constitutional considerations, required that a criminal defen-
dant, who elects to represent himself or herself, must “know-
ingly and intelligently” waive the benefits of a right to
counsel. Id. at 835 (internal quotation marks omitted).

   As for the structure of the Sixth Amendment, the Supreme
Court held that the “compact statement of the rights necessary
for a full defense . . . is given directly to the accused,” and not
counsel, which provides for a personal right to defend oneself
because it is the defendant “who suffers the consequences if
the defense fails.” See id. 818-19. From this structure, the
Supreme Court further concluded that “the language and the
spirit of the Sixth Amendment contemplate that counsel, like
other defense tools guaranteed by the Amendment, shall be an
aid to a willing defendant . . . .” Id. at 820. Historically, many
colonies had recognized a right of self-representation, and it
was probably in those days hard to imagine the idea that the
state would forbid a person from representing himself. See id.
at 832. In the long course of English common law history, a
right of self-representation had been denied only in the
dreaded Star Chamber that was at its height during the Tudor
752                      FRANTZ v. HAZEY
and Stuart monarchies. Id. at 821 n.17. In view of this history,
the Supreme Court reasoned that to “force a lawyer on a
defendant can only lead him to believe that the law contrives
against him.” Id. at 834.

   Although the Supreme Court observed that a defendant rep-
resenting himself or herself would likely not do as well as one
aided by counsel, it upheld the right of self-representation
despite such consequences because of the respect for the indi-
vidual that animated the law. Id. Three justices expressed a
contrary view in dissent, but the Faretta right of self-
representation has thus far withstood the test of time.

   In Faretta, the Supreme Court left open what role might be
taken by standby counsel. See id. at 834 n.46 (“Of course, a
State may — even over objection by the accused — appoint
a ‘standby counsel’ to aid the accused if and when the
accused requests help, and to be available to represent the
accused in the event that termination of the defendant’s self-
representation is necessary.”).

   In McKaskle v. Wiggins, the Supreme Court developed the
contours of the standby counsel’s role in relation to the defen-
dant’s Faretta right to proceed pro se, in instances where the
standby counsel’s help was not requested by the self-
represented defendant, concluding that “Faretta’s logic . . .
indicate[s] that no absolute bar on standby counsel’s unsolic-
ited participation is appropriate or was intended.” 465 U.S.
168, 176 (1984) (emphasis added). As the majority recog-
nizes, even unrequested participation by standby counsel out-
side the presence of the jury is permissible as long as this
participation does not subvert the core principles that under-
gird the Faretta right:

      [T]he pro se defendant is entitled to preserve actual
      control over the case he chooses to present to the
      jury. . . . If standby counsel’s participation over the
      defendant’s objection effectively allows counsel to
                       FRANTZ v. HAZEY                       753
    make or substantially interfere with any significant
    tactical decisions, or to control the questioning of
    witnesses, or to speak instead of the defendant on
    any matter of importance, the Faretta right is eroded.
    ...

    Thus, Faretta rights are adequately vindicated in
    proceedings outside the presence of the jury if the
    pro se defendant is allowed to address the court
    freely on his own behalf and if disagreements
    between counsel and the pro se defendant are
    resolved in the defendant’s favor whenever the mat-
    ter is one that would normally be left to the discre-
    tion of counsel.

Id. at 178-79 (emphasis added). In short, the right to self-
representation under Faretta and McKaskle may be violated
by overly intrusive “unsolicited participation” by counsel, see
id. at 183, or if “disagreements” between the defendant and
standby counsel are not resolved in the defendant’s favor. See
id. at 179 (emphasis added). But if a pro se defendant and a
willing standby counsel are in agreement regarding trial strat-
egy, I do not read McKaskle as limiting the defendant’s ability
to delegate any chores of trial to standby counsel. That seems
to be the result contemplated by Faretta itself, which antici-
pated standby counsel’s use when, and to the extent, a pro se
defendant requests help. See Faretta, 422 U.S. at 834 n.46.

   I agree with the majority that at this stage in the proceed-
ings, and absent an evidentiary hearing, we may not disregard
the State’s factual assertions that Lamb acted under Frantz’s
direction and with Frantz’s consent at the in camera confer-
ence. Although the record before the district court does not
provide a clear picture of any consultation between Lamb and
Frantz, the state court in a minute order made an express find-
ing in the post-conviction context that after the jury requested
to hear the 911 tape, and before advising the trial court of
Frantz’s position, “[a]dvisory counsel consulted with the Peti-
754                    FRANTZ v. HAZEY
tioner and advised the court that the Petitioner did not wish
the tape to be played.” It is true that Frantz had twice sought
to admit the 911 tape during the trial, but as the majority
points out, Frantz ultimately withdrew this request. That
Frantz did not want the 911 tape in evidence before the case
was submitted to the jury is consistent with Lamb’s portrayal
of Frantz’s view at the in camera conference. Like the state
court’s minute order, the federal district court also made a
specific finding that: “Advisory counsel consulted with Peti-
tioner and told the court that the petitioner did not want the
tape to be played.”

   The significant import of these findings — that some con-
sultation took place — is supported by Frantz’s own inconsis-
tent statements in his state petition for post-conviction relief
and need not be invalidated because the Court of Appeals of
Arizona later reversed the trial court’s summary denial of
Frantz’s McKaskle claim as “improperly based.” In reversing,
the appellate court noted that Frantz attached an affidavit to
the petition, dated January 3, 2002, which stated that “advi-
sory counsel, Ray Lamb, did not tell me the jury wanted to
hear the 911 tapes, nor to have them played to the jury.” It is
no doubt correct, as the Arizona appellate court concluded,
that Frantz asserted a “colorable” claim in light of his affida-
vit, which the Pima County trial court should not have sum-
marily denied.

   The Arizona appellate court erred by denying Frantz’s
Faretta claim under harmless error analysis instead of first
determining the facts and then using structural error analysis,
if the Faretta right was violated. See McKaskle, 465, U.S. at
177. The appellate court should have remanded to the Pima
County trial court for an evidentiary hearing which would
have made clear whether the Faretta right was or was not vio-
lated. Indeed, this case now requires no complex analysis: If
Frantz told standby counsel how to handle the bench confer-
ence concerning the jury’s question about reading the 911
tape, then there is simply no Faretta violation whatsoever
                       FRANTZ v. HAZEY                      755
because a self-representing defendant may properly use
standby counsel to assist in defense. Similarly, if Frantz
directed standby counsel concerning the conference, then
there is no McKaskle issue because McKaskle merely sets
guidelines for when standby counsel may act without the
assent of the self-representing defendant.

   I have a sense of unease about the majority opinion, insofar
as it may read McKaskle too expansively. In a case where a
self-representing defendant has directed standby counsel to
assist, McKaskle does not require that a criminal must “speak
for himself,” as the majority appears to characterize that case.
See Majority Opinion at 740. Instead, McKaskle imposes its
limits on the “unsolicited participation” of standby counsel.
465 U.S. at 178 (emphasis added). This rule suggests that
standby counsel may not usurp the role of the pro se defen-
dant who otherwise wants to participate directly in some stage
of the proceedings. McKaskle does not prohibit a criminal
defendant from delegating certain tasks to standby counsel.
See id. (“[T]he objectives underlying the right to proceed pro
se may be undermined by unsolicited and excessively intru-
sive participation by standby counsel.”) (emphasis added). Cf.
United States v. Mills, 895 F.2d 897, 903 (2d Cir. 1990) (rec-
ognizing that Faretta right was not eroded where pro se
defendant conceded that standby counsel took no “action that
was not authorized by Mills or adopted any strategy or posi-
tion that was not initiated by Mills”).

   I part company with the majority’s rationale insofar as it
suggests that if Frantz had told Lamb what to do about the
tape, but had not explicitly addressed participation in the
chambers conference, there would be a violation of Faretta
and McKaskle. In my view, so long as Frantz adequately
instructed Lamb concerning the tape, there is no violation. We
should not be hostile to the ability of a pro se defendant to
delegate trial tasks to standby counsel. I also part company
with the majority’s rationale insofar as it says that there “may
have been” a Faretta and McKaskle violation without recog-
756                    FRANTZ v. HAZEY
nizing that there may well not have been. We would be better
advised to determine difficult legal issues with the predicate
issues fully developed, rather than indulging in a bias toward
a particular result before the trial court has engaged in the
necessary fact finding.

   Here, Lamb participated in all the sidebar conferences
without Frantz, which the trial judge deemed necessary for
security reasons, without objection from Frantz. Given the
absence of pertinent evidence, Frantz may well have dele-
gated to Lamb the responsibility of attending the in camera
conference and conveying his position that the 911 tape not
be given to the jury. That is indeed what counsel Lamb says
occurred. There is no McKaskle error if Lamb had received
Frantz’s authority to speak at the conference. The record in its
current state just does not inform us adequately about the cir-
cumstances of Frantz’s absence from the in camera confer-
ence. But an evidentiary hearing is being ordered for exactly
these reasons — to fill in the gaps in the record and resolve
the competing factual accounts. That being so, I am at a loss
to understand why the majority wishes to speak at length on
what may be the case, rather than awaiting the factual deter-
minations that are being ordered and then assessing the law of
Faretta and McKaskle in light of the determined facts.

   The majority seems to suggest that even if Frantz consulted
with Lamb about the jury’s request, Lamb might not be able
to participate in the conference without infringing Frantz’s
rights to self-representation. Again, I think a simple analysis
is dispositive: If Lamb was authorized by Frantz to attend the
conference and state his position on the 911 tape, then there
is no issue under Faretta or McKaskle. Conversely, if Lamb
accurately conveyed the position of Frantz on the tape, but
Frantz had not asked Lamb to attend the conference, then a
square issue is presented whether standby counsel’s bench
conference attendance offends Faretta and McKaskle. In my
view, that issue should be reached, if required, after the rele-
vant facts are fully determined. I cannot join the majority, in
                            FRANTZ v. HAZEY                            757
part, because it insists on elaborating on such issues prema-
turely. See Majority Opinion at 736 (“Frantz’s exclusion
resulted in a complete silencing of Frantz’s voice on the mat-
ters.”) (emphasis added).

   If the majority is suggesting that Frantz could not use Lamb
at the bench conference, then that position misinterprets the
permissible role of a standby counsel, who may handle any
duties delegated by a self-representing defendant.3 Instead, the
defendant is representing himself or herself when he or she
delegates a task to a standby counsel and assents to being
assisted to that extent.4

   We should keep in mind that broadly speaking, there are
two distinct purposes of a standby counsel. One is to “stand
by” and be ready to proceed if the defendant should choose
to cease self-representation, or if there is any other reason
why self-representation cannot continue. The second purpose
of a standby counsel is to help a self-representing defendant
if, and to the extent, assistance is requested. As discussed
above, the Supreme Court in Faretta expressly recognized
both these applications, see 422 U.S. at 834 n.46, even though
  3
     In such a case, no formal waiver analysis is required, because there is
no affront to the scope of self representation recognized in Faretta. When
a self-representing defendant requests the assistance of an available
standby counsel, courts have not required a separate “waiver” analysis
before each and every task is delegated by a defendant to a standby coun-
sel. There must be a knowing waiver of the right to counsel before self-
representation can proceed, but in Faretta, sensitive to the undeniable fact
that many self-representations would be detrimental to the accused with-
out the guiding light of counsel, the Faretta court made it as clear as can
be that the state could provide a standby counsel. When a self-representing
defendant asks a standby counsel to handle anything, there is no need to
burden the court procedures with a task-oriented waiver analysis.
   4
     Whether or not this kind of delegation might be characterized as “hy-
brid” representation, the Supreme Court has considered it permissible even
though a pro se defendant may not insist on it by right. See McKaskle, 465
U.S. at 183 (“Faretta does not require a trial judge to permit ‘hybrid’ rep-
resentation of the type Wiggins was actually allowed.”).
758                    FRANTZ v. HAZEY
it left the precise scope of standby counsel’s role not fully
charted. In the wake of Faretta, however, federal courts have
adopted both these rules in delineating standby counsel’s role.
See, e.g., United States v. Gomez-Rosario, 418 F.3d 90, 96-
97, 102 (1st Cir. 2005) (holding that district court could, con-
sistent with Faretta, require that standby counsel screen pro
se defendant’s motions to “facilitate the orderly functioning of
the proceedings” after the unassisted defendant deluged the
district court with nearly 100 long and frivolous motions);
United States v. Lawrence, 161 F.3d 250, 252 (4th Cir. 1998)
(recognizing, where standby counsel was initially restricted to
procedural matters only and self-representing defendant sud-
denly decided to absent himself from court room at the outset
of trial, that standby counsel’s role could be extended “to
include a substantive discussion of the implications of waiv-
ing his right to be present at his own trial”); United States v.
Tarantino, 846 F.2d 1384, 1420 (D.C. Cir. 1988) (acknowl-
edging implicitly defendant’s ability to delegate tasks to
standby counsel within district court’s discretionary authority
to accept “some sort of hybrid form of representation,
whereby both he and his appointed counsel would be permit-
ted to examine witnesses, make objections, and argue
motions,” even though defendant “did not have a constitu-
tional right under the Sixth Amendment to combine self-
representation with representation by counsel”). The key
inquiries under Faretta and McKaskle hinge on the uncertain
factual questions of whether Frantz objected to his exclusion
from the in camera conference, and whether he requested or
consented to the position Lamb conveyed there. If Lamb
accurately relayed Frantz’s position, and if Frantz asked
Lamb to attend the bench conference, the role of standby
counsel at that point concerned only the task of informing the
trial court that Frantz did not wish to have the 911 tape
played. Viewed in this light, Lamb’s ancillary assistance to
the trial judge in fashioning a response to deny the jury’s
request can be considered akin to one of “overcoming routine
procedural or evidentiary obstacles to the completion of some
specific task, such as introducing evidence or objecting to tes-
                        FRANTZ v. HAZEY                      759
timony, that the defendant has clearly shown he wishes to
complete.” McKaskle, 465 U.S. at 183.

   The Supreme Court in McKaskle held that a Faretta error
is structural and that it cannot be shown to be harmless. See
465, U.S. at 177. Because the Supreme Court reasoned in
Faretta that self-representation would often be to the detri-
ment of a defendant, see 422 U.S. at 834, it would destroy the
right if, after the fact of denial, courts could simply find that
the defendant was not harmed because he or she would have
done better with counsel. Here, it would not be Faretta or Mc-
Kaskle error if, in an evidentiary hearing, it were determined
that Frantz had consented to standby counsel Lamb’s handling
the in camera conference at Frantz’s direction. On the other
hand, because the conference was an important stage of the
proceedings, if Frantz did not direct Lamb to handle the con-
ference for him, but merely gave him his views on the 911
tape, then a square and difficult issue will be presented
whether Frantz’s Faretta rights, as clarified in McKaskle,
were violated.

   Faretta and McKaskle strike a delicate balance between the
probable negative impact of self-representation on the quality
of a defense, and the superordinate interest in honoring the
respect for individual choice that animated Faretta. Thus, if
Frantz chose to communicate a position through standby
counsel Lamb at the bench conference, that choice should be
respected.

   I would remand for the required fact determinations, and
then address the Faretta and McKaskle issues in the light of
determined facts.
