Com. v. Reinstein

• Citation: 409 N.E.2d 1307,381 Mass. 555
• Parties: COMMONWEALTH v. William G. REINSTEIN.
• Decision Date: 09 September 1980
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1307

409 N.E.2d 1307

381 Mass. 555

COMMONWEALTH v. William G. REINSTEIN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 29, 1980.

Decided Sept. 9, 1980.

Richard B. Michaud, Boston, for defendant.

Roger A. Emanuelson, Sp. Asst. Dist. Atty. (Margaret A. Corrigan, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.

WILKINS, Justice.

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. ¹ We granted the 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. 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, ³ suggested 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 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, --- Mass. ---, --- - --- ^a, 383 N.E.2d 835 (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. ⁴

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 witnesses 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 his 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 was substantial, indeed."

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 that 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. Cf. Lydon v. Commonwealth, --- Mass. ---, --- ^b, 409 N.E.2d 745 (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...