Key Points

  • A party's failure to move for a mistrial does not categorically bar a later Rule 59 motion for a new trial, particularly where the party timely objected and accepted curative instructions.
  • Federal Rule of Evidence 606(b) applies to Rule 59 motions, and a district court abuses its discretion by relying on a juror's post-verdict media statements about deliberations to deny a new trial.
  • The court held that it would reach the same result under plain-error review because the juror interview was the only basis for the district court's finding that the misconduct did not affect the outcome.
  • The court held that defense counsel's persistent misconduct, which the district court catalogued in 38 instances, was so prejudicial that curative instructions could not salvage the verdict.
  • The judgment for St. John the Baptist Parish and its officials was vacated and the case remanded for a new trial.

A federal appeals court on Oct. 16 threw out a jury verdict for a Louisiana parish and two of its officials in a free-speech lawsuit. The court held that the trial judge wrongly relied on a juror's remarks to a local news station when refusing to grant a new trial.

The U.S. Court of Appeals for the Fifth Circuit ruled for Joy Banner, who sued St. John the Baptist Parish after its council chairman cut off her public comment at a 2023 meeting by reading aloud a state law that a federal court had struck down nine years earlier. Judges Smith and Higginson decided the appeal as a two-judge quorum in an unsigned, per curiam opinion. Judge Wiener, a member of the original panel, did not participate.

The ruling decides two procedural questions. A party that objects to misconduct and accepts the judge's curative instructions does not forfeit a later motion for a new trial by failing to request a mistrial, the court held. A judge deciding that motion also may not consider a juror's account of deliberations, which Federal Rule of Evidence 606(b) bars.

The dispute began at a parish council meeting on Nov. 28, 2023, led by Parish President Jaclyn Hotard. Banner rose to comment on an agenda item to retain the law firm R. Gray Sexton as special counsel on ethics matters. She had recently filed an ethics complaint alleging that Hotard took part in an industrial zoning decision that would benefit the financial interests of Hotard's immediate family.

Five seconds into Banner's remarks, Hotard and then Council Chairman Michael Wright interrupted her. Wright read aloud a Louisiana statute making it a misdemeanor, punishable by up to a year in prison, to make public statements about a private ethics board investigation. He told Banner to "stop this comment" and that she was "in violation of state law." Banner understood the statement as a threat and ended her comment.

A federal district court had declared the statute unconstitutional in 2014. The opinion noted that "the piece of paper from which Wright read during the meeting was, in fact, marked 'unconstitutional' at the top." Banner sued Hotard, Wright and the parish under 42 U.S.C. § 1983, alleging First Amendment discrimination and retaliation. She also brought claims under the Louisiana Constitution and the state's Open Meetings Law.

A jury in the Eastern District of Louisiana unanimously found for the defendants on all counts. The trial judge acknowledged that defense counsel "repeatedly crossed the bounds of proper advocacy" and catalogued 38 instances. Defense counsel told jurors in opening that the struck-down statute "is the law," asked lay witnesses legal questions after the judge forbade it, and pressed Banner about her unsuccessful campaigns for office.

During Banner's cross-examination, defense counsel pulled out a timer and invited her to deliver "the exact same speech" she had prepared for the meeting, drawing an admonishment from the judge for "making a mockery" of the matter.

After the verdict, juror Cam Owen told a local news station that deliberations relied heavily on video of the meeting. "We didn't vote no because the defense gave a good case. We voted no because the facts weren't there for the claims that the plaintiffs have," Owen said.

Banner then moved for a new trial under Federal Rule of Civil Procedure 59. The judge denied the motion and cited Owen's interview as proof that the misconduct "did not substantially influence the jury, and the jury's verdict was reasonably supported by the evidence." The judge also found that Banner's failure to seek a mistrial before the verdict weighed heavily against her.

The Fifth Circuit rejected both grounds. The panel acknowledged that a failure to request a mistrial weighs against a new trial, but wrote that "no authority supports the notion that failure to move for mistrial imposes a categorical bar against the success of a Rule 59 motion." Because Rule 59 lets judges order new trials on their own initiative, "it naturally follows that the rules aren't intended to condemn a party who is merely slow on the draw," the court wrote.

Banner had objected throughout the trial and accepted the judge's curative instructions, the panel found. Requiring her also to seek a mistrial in order to preserve a new-trial motion "would inherently defeat the intended purpose of those instructions and thereby undermine fundamental aspects of trial procedure," the court held.

On the juror interview, the panel held that Owen's statement "falls squarely within Rule 606's ambit," because the rule bars evidence of a juror's statements about deliberations, the effect of anything on jurors' votes, and jurors' mental processes. "At bottom, 'a motion for new trial may not be based on inadmissible evidence,'" the court wrote, quoting its own 2014 precedent. The panel added that it would reverse even under plain-error review, the standard that applies when an objection was not preserved, because the interview was the only basis for the judge's conclusion that the misconduct "did not materially affect the outcome of the trial."

The panel then held that the misconduct required a new trial. "The record tells a sordid story," the court wrote, finding that the defendants repeated their improper tactics "seemingly undeterred by multiple sua sponte interjections from the district court and over a dozen sustained objections."

Curative instructions could not save the verdict, the panel held, invoking a 1977 Fifth Circuit decision that likened such instructions to throwing "a skunk into the jury box" and telling jurors "not to smell it." The panel wrote that "defendants petulantly persisted in tainting the jury with their barrage of ill-conceived statements."

The panel also wrote that the defendants' appellate brief offered "conclusory statements claiming victory" and treated their counterarguments on prejudice as waived.

The Fifth Circuit vacated the judgment and remanded the case to the district court for a new trial. The panel did not reach Banner's alternative argument that the great weight of the evidence favored her. Beyond ordering the retrial, the court wrote, "we place no limitations on what matters the district court may address, nor do we suggest what decisions should be made."