State v. BanksState v. Banks
The state has sought review of the decision in State v. Banks, 95-1210 (La.App. 3rd Cir. 4/3/96), 677 So.2d 455, reversing the defendant‘s conviction and sentence for aggravated crime against nature, in violation of
Jury selection in this case was completed on June 14, 1995, and the court recessed trial overnight. On the following morning, the Alexandria Daily Town Talk printed an article containing general information about the charges against the defendant and the trial as well as references to other pending, similar charges against the defendant in New Orleans. In response to questioning by defense counsel, three jurors indicated that they had seen the article. Two jurors had read the entire article but stated that they could put aside what they had read and consider only the evidence presented at trial in determining the defendant‘s guilt. The third juror did not read the entire article; when he discovered that it was about the defendant, he stopped reading because he “didn‘t want to know anything more.”
After questioning the jurors, defense counsel moved for a mistrial. The court denied the motion on grounds that “the two individuals who in fact read the article ... would be able to put it aside and decide strictly on the facts of this particular case.” The court was therefore “just not satisfied that they are tainted enough to the point that they couldn‘t separate it and sit and listen to the evidence and the testimony that will be produced today.”
In this case, one of the jurors who had actually read the article assured the court that he “more or less made up my mind that being that I was on the jury that I would forget about what was in the paper and base[ ] the case on what I hear in Court....” The juror thereby reaffirmed his understanding that the “burden is on the prosecutor to prove that ... the charges are factual.” He otherwise remained firm in his belief that he could “put aside what I read in the paper ... and not take that into any consideration whatsoever concerning this case.” The other juror found nothing in the article that would prejudice him and did not “anticipate a problem at all” with separating out the evidence at trial from the newspaper account.
In a closely related context, this Court has held that when voir dire examination discloses a possible source of partiality in a prospective juror, the trial judge should grant a challenge for cause “even where a prospective juror declares impartiality if the juror‘s testimony on voir dire reveals the existence of facts from which bias, prejudice, or inability to render judgment according to the law may be reasonably implied.” Smith, 430 So.2d at 38. The same rule should apply when events which have occurred after jury selection may have a prejudicial impact on the trial and require further examination of the jurors. The trial judge must, however, retain the same broad discretion in determining the extent to which media accounts of the trial may have impacted the jury that he or she possesses during voir dire examination because the court “has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning by the parties’ attorneys.” State v. Lee, 93-2810, p. 9 (La.5/23/94), 637 So.2d 102, 108.
Given the emphatic and unequivocal assurances of continuing impartiality by both jurors, obvious even on a cold appellate record, the content of the newspaper article, which referred to accusations of other similar crimes but not to convictions, cf., Marshall, 360 U.S. at 312-313, 79 S.Ct. at 1172-1173; State v. Roman, 473 So.2d 897, 899-900 (La. App. 3rd Cir.1985), and the absence of any evidence that information in the news account infected the entire jury panel and became a matter of general discussion, we find no abuse of discretion by the trial court in
The judgment of the Third Circuit is therefore reversed, and this case is remanded to the court of appeal for consideration of the defendant‘s remaining assignments of error.
LEMMON, J., concurs and assigns reasons.
LEMMON, Justice, concurring.
The trial judge erred in failing to instruct the jurors, after swearing them and releasing them for the evening, that they were to avoid media reports about the trial. Two of the jurors, as a result of the error, read the article which reported that defendant, who was on trial for soliciting sex with a fourteen-year-old basketball player on a team coached by defendant, had been arrested four months earlier “on multiple charges of molestation of juveniles and aggravated crimes against nature [involving victims who] were nine of Banks’ students in New Orleans.”
The information that the jurors read in the newspaper surely would have been inadmissible at trial. Indeed, if a court official had made a statement at trial containing such information,
Nevertheless, at a hearing outside the presence of the other jurors, defense counsel questioned the allegedly tainted jurors only briefly, and each of the jurors swore that he could put the information from the newspaper out of his mind and decide the case solely on the evidence introduced at trial. While the newspaper information obviously was extremely prejudicial and unfavorable to defendant, the burden was on defendant to establish at the hearing that he could not obtain a fair trial. See