dissenting.
Julia Camden was on trial in an Illinois state court for attempted murder and other offenses committed in a tavern; one of her defenses was diminished capacity by reason of intoxication. At a lunch recess during the third day of the trial, juror Hatton told the sheriff (the custodian of the jury) that he didn’t think he could render an impartial verdict, because of his own former drinking problem. The entire jury, including the alternate, was sitting at a table when Hatton made his declaration, and the other jurors not only heard it but discussed it. The alternate remarked to Hatton, “You’re going to stick me yet, aren’t you.”
The sheriff reported the incident to the judge. After examining the sheriff and Hatton in the presence of the prosecutor and the defense counsel, and eliciting Hat-ton’s acknowledgment that his prejudice might “place a bigger burden on the State than what could be overcome,” the judge reconvened the jury and informed it that because “one of the jurors has indicated before other members of the Jury and the Alternate that they cannot ... render an unbiased verdict ..., it is the duty of the Court at this time to declare a mistrial.... And this Jury is now discharged.... I do want to thank you and you are now excused.”
The majority holds that because defense counsel did not object to the judge’s declaring a mistrial and afterward discussed with prosecutor and judge possible dates for a retrial, Camden gave her implied consent to the mistrial and therefore cannot complain that she will be placed in double jeopardy if forced to undergo a new trial. Although the question is close, I am not persuaded that there was consent. Camden’s lawyer had no reason to consent to a mistrial, since Hatton’s revealed bias was in favor of the defense rather than of the prosecution. Also and more important, he had no reasonable opportunity to object to a mistrial; therefore no inference of consent can be drawn from his failure to object.
The first he learned of the judge’s intention to declare a mistrial was when the judge declared the mistrial and excused the jurors. The lawyer could hardly have been expected to interrupt the judge while he was addressing the jury and say, “Wait a minute, judge, I don’t want a mistrial.” And once the judge had thanked the jurors and told them that they were excused and could go home, the lawyer could not jump up and say, “Wait a minute, judge, don’t let them go,” And after they were gone he could not shout, “Bring them back! Bring them back!” United States v. Sanders, 591 F.2d 1293, 1298 (9th Cir.1979). We should not require defense counsel, on pain *620of sacrificing a client’s constitutional right, to make futile gestures — gestures that cannot lead to the rectification of error, because they come too late. It is true that “if a judge should say, T think a mistrial would be a good idea, but think this over and let me you know if you disagree’, the defendant’s silence would be assent.” United States v. Buljubasic, 808 F.2d 1260, 1265-66 (7th Cir.1987). But the judge said no such thing here. He created no space in which to make an objection. The purpose of requiring lawyers to make objections is to prevent lawyers from sandbagging judges: the judge must be given a chance to correct his mistake. Once the mistake has become irrevocable, an objection serves no purpose.
The majority appears to believe that the mistake (if that is what it was — a separate question which I take up later) was not irrevocable until the jurors actually departed. After the judge told them they were excused, there was an interval — how long or short a one we do not know — during which the jurors were still in the courtroom, or certainly in the courthouse; and the majority believes that Camden’s counsel could and should have objected during that interval, and asked the judge to reconsider his ruling. Can a jury, once discharged, be recalled? Authority is sparse on the question. Sanders suggests not, 591 F.2d at 1298, but without discussion, and I prefer the practical approach taken in Summers v. United States, 11 F.2d 583 (4th Cir.1926). The jury “may remain undischarged and retain its functions, though discharge may have been spoken by the court, if, after such announcement, it remains an undispersed unit, within control of the court, with no opportunity to mingle with or discuss the case with others, and particularly where, as here, the very case upon which it has been impaneled is still under discussion by the court, without the intervention of any other business.” Id. at 586; cf. United States v. Josefik, 753 F.2d 585, 587 (7th Cir.1985). So we may assume there was a brief interval during which the jury could have been recalled if the defendant’s counsel had objected to the mistrial and the judge had acceded to the objection. But in holding that the failure to make an objection in this interval forfeits the client’s constitutional right not to be placed twice in jeopardy for the same criminal charge, the majority is asking too much of defense counsel. It is of course true that objections not made are waived, and that often — in deciding for example whether to object to a question asked of a witness— counsel may have only a second in which to make up his mind. The situation is different when the judge unexpectedly declares a mistrial and excuses the jury. Counsel is naturally reluctant to risk antagonizing the jury by asking the judge to recall it and to risk antagonizing the judge by arguing with him in front of the jury. This problem is now widely recognized in other contexts. See Fed.R.Evid. 614(c) and Note of Advisory Committee thereto; 3A Wright, Federal Practice and Procedure: Criminal § 842, at p. 289 (2d ed. 1982). And the making of such an argument, followed by the judge’s recalling the jury, would in all likelihood so befuddle the jury as to make it incapable of continuing.
I acknowledge that the cases cited by the majority, in particular United States v. Smith, 621 F.2d 350, 352 (9th Cir.1980), and United States v. Puleo, 817 F.2d 702, 705 (11th Cir.1987), go far toward inferring implied consent from silence in circumstances not unlike those of the present case. Behind these cases may lie a concern with the strategic employment of silence. Maybe the trial was going badly for Camden, and her lawyer wanted a mistrial so that he could take a crack at another jury. But the state does not argue this, and the cases on which the majority relies are distinguishable. In Puleo the court found “forewarning” of the mistrial, which my brethren do not find in this case, while in Smith there was a lengthy interval between the declaration of the mistrial and the discharge of the jury during which defense counsel could have but did not request the judge to reconsider his ruling. The present case goes further than any previous one; it makes consent a fiction.
There is an argument in favor of fictionalizing consent. The objection to the mis*621trial gives the judge a warning that he had better justify the mistrial under the “manifest necessity” standard, for otherwise there can be no retrial without violating the double jeopardy clause. Even if the objection comes too late to enable the mistrial to be rescinded, it need not come too late to enable the judge to make the kind of record that I am about to argue he failed to make here. But the majority does not mention this argument for requiring a belated objection.
Having found implied consent, the majority does not feel obliged to consider the state’s alternative ground, that of “manifest necessity,” but I must do so because of the view that I take of the case. Under the rubric of “manifest necessity,” if a mistrial to which the defense does not consent is declared because there is no way the trial can continue, the defendant can be retried, without any violation of the double jeopardy clause, whether or not he consented to the mistrial. Traditionally though not invariably, this exception to the rule that successive trials place a defendant in double jeopardy was narrowly, although not literally, construed. The impossibility of continuing with the trial had to be “imperious,” Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963); see also United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824); United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971) (plurality opinion), but the relevant impossibility was not that of continuing with the trial but that of continuing with a trial that would be a fair trial — fair to the prosecution as well as to the defense. The most common and least exceptionable example of manifest necessity was where the jury had hung. By a short extension, manifest necessity was found in cases where the jury was incapable of impartial adjudication. Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); Thompson v. United States, 155 U.S. 271, 273-74, 15 S.Ct. 73, 73-74, 39 L.Ed. 146 (1894).
The trial judge in the present case did not make, or at least did not articulate, a determination that a mistrial was neces-
sary. Ordinarily when a juror reveals bias that requires his removal, he is replaced by an alternate juror and the trial continues; there is no manifest necessity — no necessity of any kind — to abort the trial. The fact that juror Hatton went public with his declaration of bias and that the alternate may have resented being called on to replace him may, as in Simmons, have so contaminated the jury as to preclude a fair trial, and if this were clear the trial judge’s failure to intone “manifest necessity” would not be fatal. Arizona v. Washington, 434 U.S. 497, 517, 98 S.Ct. 824, 836, 54 L.Ed.2d 717 (1978); United States v. Grasso, 600 F.2d 342 (2d Cir.1979). It is not clear. The trial judge made no inquiry into the extent, if any, to which the jury had been poisoned, beyond ascertaining that they had heard Hatton’s comment. He did not interview the jurors (it was from the sheriff that he learned that the other jurors had heard Hatton), or make any effort to determine whether the alternate’s statement (“You’re going to stick me yet, aren’t you”) was uttered resentfully, or, as is equally plausible, jocularly. In Thompson, only one juror was disqualified, but so far as appears there was no alternate to replace him, so the jury had to be discharged. Here there was an alternate, and it is merest speculation that he could not have participated fairly or that the other jurors had been contaminated by overhearing Hatton.
As an original matter, therefore, I would have little doubt that there was no “manifest necessity” for a mistrial here — that, in other words, the necessity for a mistrial had not been shown, although it may have existed. But Arizona v. Washington, while purporting to retain the “manifest necessity” standard, so emphasizes the discretion of the trial judge, the haste with which he must act, the inessentiality of findings, etc., that little scope remains for appellate review of the judge’s determination that a mistrial was unavoidable. See also United States v. Grasso, supra; United States v. Shaw, 829 F.2d 714, 720 (9th Cir.1987); United States v. Jarvis, 792 F.2d 767 (9th Cir.1986). I fear that our decision in Lovinger v. Circuit Court, 845 *622F.2d 739, 745 (7th Cir.1988), while following the lead of the Supreme Court’s plurality opinion in United States v. Jorn, supra, 400 U.S. at 487, 91 S.Ct. at 558, in requiring that the judge weigh the defendant’s interest in finality (there is no indication he did that here), is inconsistent with Arizona v. Washington — a majority opinion that postdates Jorn although it predates Lovinger. Even though the necessity to abort Camden’s trial has not been shown, it may be that to find a violation of the double jeopardy clause we must go further and find that the judge was acting irrationally in granting a mistrial. Arizona v. Washington, supra, 434 U.S. at 514, 98 S.Ct. at 834. The approving discussion in Arizona v. Washington, supra, 434 U.S. at 512, 98 S.Ct. at 833, of Simmons, where the judge declared a mistrial on the basis of a newspaper article without inquiring into the article’s effect on the jury’s ability to render a fair verdict, is a further indication that the burden of showing that a mistrial was unnecessary is a heavy one.
Yet to find manifest necessity in the present case would go beyond the precedents, for in Simmons it was the defendant’s lawyer who had given the story to the newspaper; in a sense the defendant was the author of the mistrial and, if so, he should not benefit from it. The precipitan-cy with which the trial judge in the present case acted without explanation or further inquiry in the face of a possibly trivial incident that required the discharge of one juror but was unlikely to have poisoned the rest of the jury (with the possible, essential, but speculative exception of the alternate) negates an inference of manifest necessity.
Camden is entitled to her freedom.