concurring in result.
This case presents this court with the opportunity to spell out the standards of closure to be applied in criminal cases. In order to provide some guidance to the trial courts when future closure requests are made, I write separately to articulate the standards which I believe should be applied.
The plurality opinion of Chief Justice Burger in Richmond Newspapers, Inc. v. Virginia, -U.S. -, -, 100 S.Ct. 2814, 2830, 65 L.Ed.2d 973 (1980) (opinion of Burger, C. J.), articulated a broad standard to be applied in deciding closure issues. Chief Justice Burger stated that “[ajbsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.” (Footnote omitted.) Justice Blackmun, in his opinion concurring in result, commented upon the uncertainty of this statement:
I need do no more than observe that uncertainty marks the nature-and strictness-of the standard of closure the Court adopts. The plurality opinion speaks of “an overriding interest articulated in findings,” ante, [100 S.Ct.] at 2830; Mr. Justice STEWART reserves, perhaps not inappropriately, “reasonable limitations,” ante, [100 S.Ct.] at 2840; Mr. Justice BRENNAN presents his separate analytical framework; Mr. Justice POWELL in Gannett was critical of those Justices who, relying on the Sixth Amendment, concluded that closure is authorized only when “strictly and inescapably necessary,” 443 U.S., at 399-400, 99 S.Ct., at 2915, and Mr. Justice REHNQUIST continues his flat rejection of, among others, the First Amendment avenue.
Richmond Newspapers, supra, - U.S. at -, 100 S.Ct. at 2842 (Blackmun, J., concurring in result).
I believe now is the time to provide more precise guidance in order to avoid confusion at the trial level and to obviate the need for interlocutory appeals on the closure issue.
After a careful reading of the Supreme Court’s opinion in Richmond Newspapers, I believe this court should extend the standards for closure announced in United States v. Powers, 622 F.2d 317, 322-23 (8th *680Cir.), cert. denied, -U.S.-, 101 S.Ct. 112, 66 L.Ed. 44 (1980), to cases where the prosecution and defense agree on closure.
In Powers, we adopted the standard outlined in Justice Blackmun’s dissent in Gannett Co. v. DePasquale, 443 U.S. 368, 440-42, 99 S.Ct. 2898, 2935-2937, 61 L.Ed.2d 608 (1980) (Blackmun, J., dissenting), and applied the standard to “the limited case where the defendant seeks closure without the consent of the prosecution.” Powers, supra, 622 F.2d at 323. We found that “[t]he norm and presumption of the sixth amendment is that a trial should be a public proceeding. Gannett, 443 U.S. at 385, 99 S.Ct. at 2908.” Id. We buttressed this finding on the historical tradition of open trials and the important societal interests which it serves. See id. Subsequently, the Supreme Court in Richmond Newspapers, supra, -U.S. at---, 100 S.Ct. at 2821-26, has reaffirmed our belief in the correctness of this position. However, in Powers we specifically expressed no opinion on whether the first amendment provided an independent right of access to criminal trials on the basis of the first and fourteenth amendments. Powers, supra, 622 F.2d at 321 n.3, 324.
In light of the Supreme Court’s finding that the right to attend criminal trials is implicit in the guarantees of the first amendment in Richmond Newspapers, supra, -U.S. at-, 100 S.Ct. at 2829, I see no reason to limit the criteria for closure announced in Powers to only cases where the prosecution opposes closure. In Powers we held that an accused who seeks closure must “ ‘establish that it is strictly and inescapably necessary in order to protect the fair trial guarantee’ [Gannett, supra] 443 U.S. at 440, 99 S.Ct. at 2936 [Blackmun, J., dissenting] (emphasis added).” Powers, supra, 622 F.2d at 322.1
In adopting Justice Blackmun’s test, we noted that he would apply his test regardless of the consent or nonconsent of the prosecutor. Id. at 323; see Gannett, supra, 443 U.S. at 445, 99 S.Ct. at 2939. Justice Blackmun articulated a number of reasons for a broad application:
I thus reject the suggestion that the defendant alone may determine when closure should occur. I also reject any notion that the decision whether to permit closure should be in the hands of the prosecutor on the theory that he is the representative of the public’s interest. It is in part the public’s interest in observing the conduct of the prosecutor, and the police with whom he is closely associated, that the public-trial provision serves. To cloak his own actions or those of his associates from public scrutiny, a prosecutor thus may choose to close a hearing where the facts do not warrant it. Moreover, prosecutors often are elected, and the public has a strong interest, as noted, in observing the conduct of elected officials. In addition, the prosecutor may fear reversal on appeal if he too strenuously resists the motion of a defendant to close a hearing. Conversely, a prosecutor may wrap in the mantle of the public interest his desire to disseminate prejudicial information about an accused prior to trial, and so resist a motion to close where the circumstances warrant some restrictions on access. I thus am unwilling to commit to the discretion of the prosecutor, against whose own misconduct or incom*681petence the public-trial requirement is designed in part to protect, the decision as to whether an accused’s motion to close will be granted.
Id.
This case, as well as the Richmond Newspapers ease, see id.,-U.S. at-, n.3, 100 S.Ct. at 2842 n.3 (Blackmun, J., concurring in result), demonstrates that the public interest may not be fully protected by the participants in the litigation. For whatever reason, the prosecutor in this case consented to closure in a potentially politically sensitive case involving a United States senator who was up for reelection. The criteria to be applied by the trial court should, therefore, be the same regardless of whether the prosecutor consents or not.
. Under the “strictly and inescapably necessary” standard, we again adopted Justice Blackmun’s three-prong test and required:
The accused who seeks closure should establish * * * the following:
First, he should provide an adequate basis to support a finding that there is a substantial probability that irreparable damage to his fair trial right will result from conducting the proceeding in public.
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Second, the accused should show a substantial probability that alternatives to closure will not protect adequately his right to a fair trial.
Third, the accused should demonstrate that there is a substantial probability that closure will be effective in protecting against the perceived harm.
Powers, supra, 622 F.2d at 322-23, quoting Gannett, supra, 443 U.S. at 441-42, 99 S.Ct. at 2937 (Blackmun, J., dissenting). See also 28 C.F.R. § 50.9, 28 Crim.L.Rptr. 2146 (Nov. 5, 1980).