661 F.2d 255 (1st Cir. 1981), 81-1050, Reinstein v. Superior Court Dept. of Trial Court of Massachusetts

Docket Nº:81-1050.
Citation:661 F.2d 255
Party Name:William G. REINSTEIN, Petitioner, Appellant, v. SUPERIOR COURT DEPARTMENT OF the TRIAL COURT OF MASSACHUSETTS, Respondent, Appellee.
Case Date:September 30, 1981
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 255

661 F.2d 255 (1st Cir. 1981)

William G. REINSTEIN, Petitioner, Appellant,

v.

SUPERIOR COURT DEPARTMENT OF the TRIAL COURT OF

MASSACHUSETTS, Respondent, Appellee.

No. 81-1050.

United States Court of Appeals, First Circuit

September 30, 1981

Argued April 9, 1981.

Page 256

Francis J. DiMento, Boston, Mass., with whom Richard B. Michaud and DiMento & Sullivan, Boston, Mass., were on brief, for petitioner, appellant.

Barbara A.H. Smith, Asst. Atty. Gen., Chief, Crim. Appellate Div., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for respondent, appellee.

Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.

ALDRICH, Senior Circuit Judge.

By this petition for habeas corpus William G. Reinstein, a former mayor of Revere, seeks to overturn a decision of the Massachusetts Supreme Judicial Court that a mistrial, declared over his objection during his trial for conspiracy in the superior court, was justified by manifest necessity, preventing his reliance on the double jeopardy clause. Commonwealth v. Reinstein, --- Mass. ---, 409 N.E.2d 1307. The district court denied the writ. We affirm.

The trial had been his second. During the first a witness for the Commonwealth, one Sharigian, fell ill during cross-examination. A mistrial was declared, which defendant did not contest. Prior to his second trial defendant personally, and his family and friends self-styled as the Committee for Human Rights, engaged in issuing and publishing statements entirely inappropriate for a jury to read or learn of if the Commonwealth was to receive a fair trial. One such, a full page advertisement, appeared in several issues of TV FACTS, a weekly television guide distributed free throughout Revere, Winthrop, Chelsea and East Boston, purporting to disclose that Sharigian, described as a prosecution witness who had since died, had written a letter to the district attorney proclaiming defendant's innocence. Because of defendant's political position this alleged letter was the subject of considerable newspaper publicity.

Fearing continuation of such tactics, the Commonwealth requested at pretrial conference that the jury be sequestered. Defendant vigorously objected. The court denied sequestration in consideration of defendant's agreeing to maintain complete silence 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." Thereafter, on the second day of testimony, the district attorney brought to the court's attention that an issue of TV FACTS for the week about to commence, published two days ago, and a week after defendant's above undertaking, contained a full page ad repeating the supposed letter from the deceased witness and stating that the district attorney had ignored it, as a result of which to continue the prosecution would be a political vendetta and harassment, and a miscarriage of justice. "If those in power are trampling on Reinstein's rights today, tomorrow they can trample on yours." The statement was "Sponsored by the Committee

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for Human Rights." Approximately 5,000 copies of the guide had been published and left in various business establishments for distribution. Three of the sixteen jurors came from the immediate circulation area.

The court, not unnaturally, was deeply upset. The defendant requested a voir dire of the jury, but the court declined. It stated,

"I've got only two remedies as far as I can see. One is to lock up this jury at this point. The other one is to declare a mistrial. My inclination is not to lock up this jury, even though I said it was a possibility, because, as I see it, having listened to this matter, we may well go through the Christmas season with this case, and that it would not be fair to the sixteen persons presently here, on the conditions that were given, to do that at this time."

It was expected that trial would last several weeks, and for at least two jurors it was known that sequestration would present problems.

Defendant's then response was to continue his opposition to sequestration. 1 Counsel said, "If you sequester the jury, the jury is just going to be an angry jury." In his next breath, the court having pointed out why, inevitably, it would be the defendant who would be the one blamed, counsel added, "This is a disaster, Your Honor."

Disaster it was. It seems clear that as between mistrial and sequestration the former was the better choice, or, at a minimum, within "the sound discretion of a presiding judge." Wade v. Hunter, 1949, 336 U.S. 684, 692, 69 S.Ct. 834, 838, 93 L.Ed. 974. The sole question is whether there was some other, less drastic, choice which, upon reflection, should have been obvious to the court, 2 or whether, within the trial court's "sound discretion," a "manifest," viz., a "high degree," of necessity dictated a mistrial. Arizona v. Washington, 1978, 434 U.S. 497, 505-06, 98 S.Ct. 824, 830-31, 54 L.Ed.2d 717.

Concededly, as the Massachusetts Supreme Judicial Court recognized, the normal first response in a situation of this kind is to conduct a voir dire of the jury, individually or collectively. See, e. g., United States v. Perrotta, 1 Cir., 1977, 553 F.2d 247, 249-50; Commonwealth v. Reinstein, ante, 409 N.E.2d at 1310. Various special objections to a voir dire in this case have been advanced, but nothing prevented having a voir dire and then deciding whether to declare a mistrial. Accordingly, omitting a voir dire can be excused only on the assumption that sequestration or mistrial, in this case mistrial, was necessary regardless of whatever should be learned. Hence we make the assumption the most unfavorable to the Commonwealth, that a voir dire would have disclosed that no juror had learned of the TV publication.

In this event the first question would be the likelihood of some juror or jurors learning of the publication thereafter. Defendant urged upon the court that a group was at work retrieving issues of TV FACTS and cutting out the offending page. The Commonwealth's answer, which could not be rebutted, was that it could not be told how many remaining copies such as the district attorney's had already been distributed. These copies would be current for an entire week. Hanging over this was the fact that this trial was not simply a local issue; if the metropolitan-wide press, which had been much interested before, should get wind of it, the jig would be up. Under the circumstances, we believe the court could reasonably

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fear there was a substantial danger that the jury, even if presently ignorant, would not remain so.

Next, the question comes, why, in place of a mistrial, would not the customary warning to the jury to disregard matters learned outside of court be sufficient? Whether jurors can, or will, comply is a subjective matter that must be decided case to case. Compare United States v. Pierce, 1 Cir., 1979, 593 F.2d 415, with Killilea v. United States, 1 Cir., 1961, 287 F.2d 212, cert. denied, 366 U.S. 969, 81 S.Ct. 1933, 6 L.Ed.2d 1259. Like the trial court we regard this particular publication as peculiarly prejudicial. In the first place, the writer of the putative letter was dead, and could not be called his alleged out-of-court disclosure would not be before the jury to be rebutted. This was a case where the information coming to the jury out of court would be more prejudicial than if introduced on the stand. Second, the information was not only given in highly inflammatory terms, but it had the apparent endorsement of some broad, public spirited body, a Committee for Human Rights, which had a general concern about the future. If it had been truthfully signed, viz., The Family and Friends of Reinstein, whose interest is personal and partial, it would have been far less harmful. As it was it was admirably designed to outrage a lay juror, and make an impression difficult to eradicate. 3

How much jurors are influenced by out-of-court information, and whether the effect can be eradicated, is a subject on which there can be much disagreement. Certainly there are cases where eradication can reasonably be thought highly doubtful. E. g., Simmons v. United States, 1891, 142 U.S. 148, 154-55, 12 S.Ct. 171, 172, 35 L.Ed. 968; Delaney v. United States, 1 Cir., 1952, 199 F.2d 107, 112-13. As the Court said in Arizona v. Washington, ante, 434 U.S. at 511, 98 S.Ct. at 833,

"(T)he extent of the possible bias cannot be measured, and ... some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. In a...

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