¶1dissenting.
¶2There was no good reason for the trial justice to refuse to grant appellant’s challenges for cause to the persons on the panel who admitted they believed defendant was a former BMHI patient. We do not have to hold that the retention of those persons on *1104the jury was a per se violation of the state or federal constitutions in order to conclude that this appellant was unjustly treated by leaving them there in the face of his strong, timely, and insistent protests. Appellant made known to the trial justice at an early stage of the proceedings that, because of possible prejudice, he did not want persons on the trial jury who knew of his status as a former BMHI patient.
¶3Appellant does not have to establish that the mere fact that a defendant has undergone treatment at a mental hospital will “always” have such “high potential for ineradicable prejudicial impact” on those who ultimately become jurors as to deny him a fundamentally fair trial. There is no need to conjure with so broad a generalization in order to resolve the simple issue in this case.
¶4The majority treats appellant’s request as if it were a piece of whimsy not grounded in any reality of possible prejudice. I do not know — and neither does anyone else— whether appellant was actually prejudiced in the jury’s deliberations. He certainly thought he would be, and the court is assuming too much in declaring he was not. We have no basis whatever for holding, as we do in effect, that attitudes of hostility toward persons with known mental problems have been exorcised from the populace. It is equally naive to assume that it sufficed to ask the venire-persons holding the belief that the defendant was once an inmate whether they thought they could come to a fair verdict.
¶5On voir dire, the entire panel was exposed to information that caused six members of the panel to form the belief, which they had not held before voir dire, that appellant had been a patient at BMHI. The court denied appellant’s request for individualized voir dire, with the result that the entire panel was exposed to the issue again. Nine individuals admitted to having the belief that appellant had been a patient, and, in the circumstances, others must have developed doubts on the subject. Seven of those who had admittedly formed the belief were unsuccessfully challenged for cause, and after appellant exercised his peremptory challenges two of them remained on the trial jury. Though the seven said that their belief would not influence their decision, there remained a possibility that they might not meet their own expectations. See Silverthorne v. United States, 400 F.2d 627, 639 (9th Cir. 1968). Furthermore, even though the seven said they would not be influenced, there was a danger of prejudice if, during deliberations, they communicated their belief to other members of the jury who had not been examined on possible prejudice.
¶6Any evidence to prove appellant’s status as a former BMHI patient would have been inadmissible and prejudicial in his case. See Maine Rules of Evidence, Rules 401-404. He moved for a mistrial and challenged the seven panelists for cause before the State was put to the expense of a full trial. Since appellant made timely indication that he felt he would be prejudiced and the jurors’ specific belief about him had a high potential for prejudicial impact, he should be given a new trial.
¶7In these days of widespread publicity, jurors often- have some exposure to cases prior to trial. When prospective jurors are exposed to such publicity, a mistrial or removal of the venireman is not always required. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Mere exposure to publicity does not necessarily lead prospective jurors to form a belief about facts in the case. They may disregard the supposed information more easily than when they have actually formed an opinion about a fact in issue or about a party’s record or reputation. Even so, convictions have been reversed in such cases. In Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), the Supreme Court reversed a federal court conviction for a drug law violation where, during the trial, some of the jury read newspaper items mentioning prison terms the defendant had served a few years before. On learning that the news account had reached the jurors, the trial judge summoned them *1105into his chambers individually. All seven told the judge that they would not be influenced by the news items, that they could decide the case only on the evidence of record, and that they felt no prejudice against defendant as a result of the articles. The trial judge denied a motion for mistrial. Reversing and granting a new trial, the Supreme Court said, in a per curiam opinion, at page 312, 79 S.Ct. at page 1173,
“We have here the exposure of jurors to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence. The prejudice to the defendant is almost certain to be as great when that evidence reaches the jury through news accounts as when it is a part of the prosecution’s evidence. Cf. Michelson v. United States, 335 U.S. 469, 475, 69 S.Ct. 213, 218, 93 L.Ed.2d 168, [173]. It may indeed be greater for it is then not tempered by protective procedures.”
¶8When members of the panel have actually formed a belief, based on information not in evidence, about a fact at issue in a criminal trial, or about the defendant’s record or reputation, a new trial should ordinarily be granted. United States v. McMann, 435 F.2d 813 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971); Silverthorne v. United States, supra; State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973); People v. Harris, 53 App.Div.2d 1007, 386 N.Y.S.2d 263 (1976).
¶9In his opinion in United States v. McMann, supra,at page 818, Judge Friendly quoted as follows from Judge Goldberg’s opinion in United States v. McKinney, 429 F.2d 1019, 1022-23 (5th Cir. 1970).
“ ‘All must recognize, of course, that a complete sanitizing of the jury room is impossible. We cannot expunge from jury deliberations the subjective opinions of jurors, their attitudinal expositions, or their philosophies. These involve the very human elements that constitute one of the strengths of our jury system, and we cannot and should not excommunicate them from jury deliberations. Nevertheless, while the jury may leaven its deliberations with its wisdom and experience, in doing so it must not bring extra facts into the jury room. In every criminal case we must endeavor to see that jurors do not [consider] in the confines of the jury room . . . specific facts about the specific defendant then on trial.
¶10The costs of drawing a new jury or excusing several veniremen are not large as long as relief is requested and afforded prior to trial. Knowledge of appellant’s status as a former patient at BMHI posed a danger of ineradicable prejudice, and appellant should have been afforded some relief by the trial court. At the very least, the trial court should have excused those veniremen who had actually formed a belief that appellant was a former patient at BMHI. Those seven individuals had not merely been exposed to the potentially prejudicial information but had actually formed the opinion that appellant was a former BMHI patient. The judgment of the trial court should be set aside and the case remanded for a new trial on the ground that it was a plain abuse of discretion for the trial judge to deny appellant’s request to remove for cause persons from the panel who believed he had been an inmate at Bangor Mental Health Institute. I would not characterize this as a fair trial.
¶11Leaving aside any idea of fair play, one would suppose that considerations of pure expediency would have led the prosecuting attorney in this case to join with the defense at least in asking that the questionable panel members be kept off the jury. There is a tendency for eager prosecutors to oppose, in á kind of Pavlovian response, every request that the defense makes. The prosecution, as well as the judiciary, has a responsibility to see that justice is done in criminal cases. That ideal is not well served by our decision in this case.