dissenting:
I am not yet satisfied that the district court has articulated sufficient findings to support its decision to partially close the trial during some of the testimony. Specifically, I do not think the court’s findings “indicate the court was concerned that this particular witness was susceptible to harm from testifying” in open court. See supra at 1390. I therefore respectfully dissent.
As we pointed out in United States v. Galloway, 937 F.2d 542 (10th Cir.1991), a partial closure requires a lesser showing of government interest than a total closure. Whereas a judge may not close a courtroom to all spectators in the absence of an “overriding interest,” a “substantial reason” will suffice for the exclusion of some part of the public. Here, the trial court on remand stated its interest in “protecting the victim” in view of the fact that “failure to partially close the trial could harm the victim in view of her age and the nature of the crimes charged.” (emphasis added) No doubt protecting a witness is a substantial reason for closure; indeed, it may even be a compelling reason such as would support total closure in certain circumstances. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982) (compelling interest in protecting physical and psychological well-being of youthful witnesses); Davis v. Reynolds, 890 F.2d 1105, 1110 (10th Cir.1989).
The problem here is apparent from the district court’s inability to say more than that public testimony “could harm” the witness. Having failed to inquire into the complainant’s psychological background, her level of maturity and understanding, the interests of her parent and relatives, or even her desire that her testimony be secret or public, see Globe Newspaper, 457 U.S. at 608 and n. 21, 102 S.Ct. at 2621 and n. 21 (suggesting that some rape victims may desire to make testimony public), the court lacked any reason to believe that closure was desirable, let alone necessary, in this case. The court’s findings state *1393only that the victim was a minor, that she lived with her parents (as in fact do most minors), and that the alleged crime involved sexual matters. In short, the trial court reveals nothing that we did not already know when we remanded the case. Cf. Galloway, 937 F.2d at 547 (court must make sufficient findings to allow reviewing court to determine if closure was proper). Instead of making findings specific to this victim, the court stated generalities applicable to all cases involving sexual offenses against minor victims. And while the age of the witness and the nature of the crime charged are appropriate factors for consideration, Globe Newspaper, 457 U.S. at 608, 102 S.Ct. at 2621, such considerations “support a closure only when they form part of a careful case-by-case analysis of each individual situation.” Davis, 890 F.2d at 1110.
The deficiency here is not in the government’s asserted interest, but rather in the continued failure of the trial court to demonstrate that this witness, in this case was susceptible, vulnerable, or in need of protection. “Without any inquiry or findings concerning the specific condition of the witness in this case,” a closure order “is essentially equivalent to the blanket legislative closure rejected [by the Supreme Court] in Globe Newspaper.” Davis, 890 F.2d at 1111 (emphasis added). The lower standard applicable to partial closures reduces the necessary showing of reasons from “compelling” to “substantial,” but it in no way relieves the court of its duty to evaluate the needs and desires of the particular witness in a given case.
The differences between this case and other cases where closures have been upheld are instructive. In Nieto v. Sullivan, we affirmed the court’s decision to exclude the defendant’s relatives during the testimony of a witness who told the judge he feared retribution. 879 F.2d 743, 749-51 and nn. 11, 13 (10th Cir.), cert. denied, 493 U.S. 957, 110 S.Ct. 373, 107 L.Ed.2d 359 (1989). The Ninth Circuit upheld a partial closure when the trial judge observed a rape victim’s “apprehension in testifying before [the defendant’s] family members”, who were “making faces and giggling during her testimony.” United States v. Sherlock, 865 F.2d 1069, 1077 (9th Cir.1989). In the same vein, we reversed the conviction of a defendant whose trial for rape was totally closed during the complainant’s testimony only because the victim was a minor and the defendant would not be prejudiced. Davis, 890 F.2d at 1108-1111. Unlike Nieto and Sherlock, we have here only the abstract potential for harm, and no indication that this particular witness would have suffered incrementally from testifying in public, see Globe Newspaper, 457 U.S. at 607 n. 19, 102 S.Ct. at 2620 n. 19 (measure state’s interest in protecting against incremental injury of testifying in public).
It may be that the trial court failed to make the requisite findings because it could no longer do so; the court apparently did not conduct a relevant inquiry at the time of trial, and evidence may since have become unavailable. This is unfortunate, but it is totally irrelevant to our consideration of the legal issue presented here. The law on trial closures has been evolving for some time, and it has been clear with respect to a defendant’s Sixth Amendment rights since the Supreme Court’s 1984 decision in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). Reversal is the appropriate remedy for a violation of a defendant’s Sixth Amendment right to a public trial, Davis, 890 F.2d at 1111; see Waller, 467 U.S. at 49 n. 9, 104 S.Ct. at 2217 n. 9, and I would grant it to Mr. Galloway along with a remand for a new trial.