COMMONWEALTH vs. WILLIAM G. REINSTEIN.

WILKINS, J. Following the declaration of a mistrial in a proceeding involving charges of conspiracy and perjury, the defendant, a former mayor of the city of Revere, moved to dismiss the indictments, asserting that a retrial would violate his rights under the double jeopardy clause of the Fifth Amendment to the Constitution of the United States. The trial judge denied that motion and reported to the Appeals Court the propriety of his action. [Note 1] We granted the

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Commonwealth's application for direct appellate review. We conclude that double jeopardy principles under the Fifth Amendment do not bar a retrial of the defendant and answer the reported question in the affirmative. [Note 2]

On November 30, 1979, the second day of the taking of testimony, the prosecutor brought to the judge's attention a full page advertisement that had been published in a weekly television magazine distributed "throughout Revere, Winthrop, Chelsea and East Boston" for the week commencing December 2, 1979. The advertisement, portions of which were read into the record by the judge, as set forth in the margin, [Note 3] suggested

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that the defendant had been "framed," that his rights had been trampled on, and that the district attorney was engaged in a political vendetta. The publication was free, and some 5,000 copies had been available for as long as three days when it was brought to the judge's attention. Three of the sixteen jurors came from the area of distribution of the publication.

The advertisement stated that it was sponsored by "The Committee for Human Rights." The defendant admits that the advertisement was the product of efforts of members of his family and friends, and that, prior to the commencement of trial, he personally had disseminated material similar to the advertisement. However, the judge accepted the defendant's representation that he was not responsible for the publication of this particular advertisement.

Although the Commonwealth had initially requested that the jury be sequestered, anticipating a publicity problem in light of prior publications of the letter quoted in the advertisement, the defendant had vigorously opposed the sequestration of the jury. In the course of the pretrial discussion of the question of sequestration, the defendant agreed to maintain complete, public silence during the course of his trial and "to request in the strongest of terms that the committee refrain, on the same basis as he will refrain, from any activity, [oral] or written in connection with this matter until it is concluded." The judge noted that a mistrial might be required if the defendant presented prejudicial publicity.

In apparent reliance on these representations and the anticipated consequences of the defendant's request to the committee, the judge did not sequester the jury. The jury were selected on the basis that they would not be sequestered, although they were advised of a possibility of it. The judge noted in a memorandum of decision that one juror had a very young child at home, and that another juror of advanced age had shown some early signs of strain. Another factor in not sequestering the jury was that the trial was expected to last through the Christmas holiday season.

When the prosecutor brought the advertisement to the judge's attention, the judge engaged in an extensive discussion

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of available alternatives. The prosecutor urged that the jury be sequestered. The judge noted the possibility of a mistrial. Defense counsel objected to a mistrial and suggested that the judge determine whether any juror had read the advertisement. The judge responded that, whether or not the jury had yet seen the advertisement, if they were not sequestered, it could come to their attention in the future. Defense counsel objected that the jury would be an angry jury if they were sequestered. Beyond suggesting a voir dire, defense counsel offered no alternative to sequestration or a mistrial. He argued both against sequestration and against a mistrial and, when the judge declared a mistrial, he recorded his objection. Only after the declaration of a mistrial did defense counsel allude to double jeopardy considerations.

In a memorandum of decision, filed several weeks after the declaration of a mistrial the judge noted that the advertisement "appeared to be a direct breach of the understanding and commitment which had led to . . . an unsequestered jury." If the defendant had carried out his agreement, his relatives and friends chose "to ignore his request or they were essentially uncontrollable in this regard -- which did not bode well for the future conduct of the case."

The normally appropriate procedure when possibly prejudicial publicity comes to a judge's attention is to interrogate the jury. See Commonwealth v. Jackson, 376 Mass. 790, 799 (1978). The judge was aware of this requirement but concluded that it was not feasible to inquire of the jurors as to their knowledge of the advertisement. He said in his memorandum of decision that, if questioned concerning the advertisement, the jury would have attributed its publication to the defendant and "might well have considered [it] as a major impropriety on the defendant's part." He concluded that, unless the jury were sequestered, any such questioning would do more harm than good. The judge set forth in detail the reasons for his decision not to proceed with an unsequestered jury. [Note 4]

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Having concluded that a fair trial required that the trial not continue with an unsequestered jury, the judge then weighed the question of the sequestration of the jury. "The problem with sequestering the jury was, first, that, as already stated, the particular jurors seated in this case had not been `screened' with that possibility in view. The trial, by any account, would be protracted; a substantial number of witness were projected. More important, perhaps, was the impact upon the jury of a sequestration at this stage of the proceedings. No matter how skillfully the court approached the matter, there was little question but that the jury would have been angry, and that its anger would have been manifested against the party who (they would conclude) was the cause of their sequestration. Given the nature of the proceedings and the fact that certain questions to them in voir dire must have alerted them to the fact that there had been pre-trial publicity about the case and that the defendant (or his friends) had engaged in pre-trial activity on this behalf, it is highly likely that the jurors would have pointed the finger at the defendant as the cause of the change in their status to his detriment. His attorney recognized this danger, that the jury would be `angry.' On balance, the court was of the opinion that the risk of prejudice to the defendant by sequestering the jury substantial, indeed."

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The judge expressed his conclusion, as follows: "Weighing all of the factors described, as well as others set forth in the colloquy with counsel, the court decided, on balance, that it should exercise its discretion in aborting the proceedings at the stage, in response to a situation which was created wholly by the defendant's family, relatives and friends and in no way by the Commonwealth or the court; and that here the public's interest in a fair trial designed to end in a just judgment, fair to both the Commonwealth and to the defendant, required such action. In short, there was a high degree of need under the singular and special circumstances which existed on November 30, 1979 -- which had been created by the publication and broad dissemination of the offending advertisement by persons aligned with the defendant."

This case is unusual because the publicity was favorable to the defendant, was the product of efforts of members of his family and his friends, and was the aftermath of efforts the defendant made to expose his position through the news media. Further, the defendant was advised to take steps to prevent further publicity, and either he did not take adequate steps or his supporters chose to disregard any such requests. We do not say that the defendant voluntarily created the situation of which he complains and that therefore double jeopardy rights are not involved. C.f. Lydon v. Commonwealth, ante 356, 365 (1980). However, in assessing the defendant's constitutional claim, consideration may fairly be given to his contribution to the problem -- his agreement to seek to keep others from publishing material in his favor in exchange for an unsequestered jury and his practice of generating favorable media publicity of which the troubling advertisement was an aftermath.

The issue is whether, jeopardy having attached, there was a manifest necessity for the declaration of a mistrial. Arizona v. Washington, 434 U.S. 497, 505 (1978). United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824). There is no mechanical formula by which to determine the

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existence of manifest necessity. "[V]irtually all of the cases turn on the particular facts and thus escape meaningful categorization." Illinois v. Somerville, 410 U.S. 458, 464 (1973). See United States v. Jorn, 400 U.S. 470, 479-480 (1971).

If the judge had questioned the jury in general terms concerning whether any member had seen or heard of the publication, we might know of the extent of juror bias, if any, that already existed. We agree with the judge, however, that the problem existed for the future if the jury were not sequestered, even if, as we shall assume in the defendant's favor, questioning would have disclosed that no juror was then prejudiced by the advertisement.

The critical question, therefore, is whether the jury could have been sequestered at that time as a reasonable alternative to the declaration of a mistrial. We think it significant that the defendant did not point to sequestration as a reasonable option. Indeed, he opposed sequestration and made no proposal of any other alternative to the declaration of a mistrial.

The record would be considerably more satisfactory if the judge had inquired of the jurors whether sequestration at that time was reasonable and possible. Yet we accept as valid the judge's reasons for his refusal to sequester the jury. The necessity for a mistrial must be manifest; there must be a high degree of necessity; but it need not be absolute. Arizona v. Washington, 434 U.S. 497, 506 (1978). The jury had not been selected with sequestration in mind. Although the defendant now disclaims any concern over sequestration in terms of the adverse impact on him, at trial his counsel argued that, if sequestered, the jury would be angry. The judge was entitled to consider this factor in reaching his decision. Because the jury knew from the voir dire questioning that the defendant had engaged in pretrial publicity, the inference was reasonable that the jury would direct their anger at him. The judge was fully warranted in concluding that interrogation of the jury followed by sequestration would have created a substantial risk of prejudice

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to the defendant. The trial judge saw and heard the jurors and conducted the voir dire examination, including an inquiry concerning jurors' awareness of pretrial publicity. His evaluation of the likelihood that the impartiality of one or more jurors might be affected by sequestration is entitled to the "highest degree of respect." Arizona v. Washington, supra at 511.

We are satisfied that the judge exercised sound discretion in his decision to declare a mistrial. Arizona v. Washington, supra at 514. He did not act precipitately, or without awareness of the double jeopardy impact of an erroneous ruling. He gave each side a full opportunity to explain its position with respect to a mistrial, and explored less drastic alternatives, such as interrogation of the jurors, cautionary instructions, and sequestration. Contrast United States v. Jorn, 400 U.S. 470, 486-487 (1971); Cherry v. Director, State Bd. of Corrections, 613 F.2d 1262, 1267 (5th Cir. 1980); United States v. Pierce, 593 F.2d 415, 417-419 (1st Cir. 1979); Jones v. Commonwealth, 379 Mass. 607, 616-617 (1980). There was no abuse of discretion. The declaration of a mistrial was a matter of manifest necessity.

We answer the reported question in the affirmative. The case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.