Fifth Circuit Orders New Trial for Citizen Cut Off at Parish Meeting After Defense Counsel's Repeated Misconduct

Oct 21, 2026 · 6 min read · By Brandon J. Grable

Case: Banner v. Wright, No. 25-30381, 2026 WL 3091152 (5th Cir. Oct. 16, 2026) (published, per curiam). Before Judges Smith and Higginson (decided by a quorum). Appeal from the U.S. District Court for the Eastern District of Louisiana, No. 2:23-CV-7296. Read the opinion on the Fifth Circuit's website.

What happened

On November 28, 2023, the council of St. John the Baptist Parish in Louisiana held a public meeting led by Parish President Jaclyn Hotard. Joy Banner stepped to the lectern to comment on an agenda item about hiring a law firm as special counsel on ethics matters. According to the court's opinion, Ms. Banner had recently filed an ethics complaint against Ms. Hotard, alleging that Ms. Hotard had impermissibly participated in an industrial zoning decision that would directly benefit the financial interests of her immediate family.

Ms. Banner spoke for just five seconds before she was interrupted, first by Ms. Hotard and then by Council Chairman Michael Wright. She was told she was off-topic and ordered to stick to approved agenda items. Mr. Wright then read aloud a Louisiana statute that, as written, made it a misdemeanor, punishable by a fine of up to $2,000, up to a year in jail, or both, for anyone other than the person under investigation to make public statements about a private Board of Ethics investigation without the investigated person's written request. He told her to "stop this comment" and that she was "in violation of state law." Ms. Banner took that as a threat and stopped speaking.

There was a problem with that statute. A federal court had ruled it unconstitutional in 2014, nearly a decade earlier. As the Fifth Circuit noted, the piece of paper Mr. Wright read from "was, in fact, marked 'unconstitutional' at the top."

Ms. Banner sued Mr. Wright, Ms. Hotard, and the parish under 42 U.S.C. § 1983, the federal civil rights statute, claiming discrimination and retaliation against her protected speech in violation of the First Amendment. She also brought claims under Louisiana's Constitution and Open Meetings Law.

The trial

A jury ruled against Ms. Banner on every claim. But the trial judge acknowledged that defense counsel "repeatedly crossed the bounds of proper advocacy," and catalogued 38 separate instances. Among them, according to the opinion, defense counsel told the jury in opening statement that the unconstitutional statute "is the law," kept asking witnesses legal questions after being told not to, raised the dismissal of Ms. Banner's ethics complaint despite the court's ruling that it was immaterial, questioned her about losing past elections, and, during her cross-examination, pulled out a timer and asked her to give her speech "right now." The trial judge admonished counsel for "making a mockery" of the case.

After the verdict, a juror gave an interview to a local news station. The trial judge denied Ms. Banner's request for a new trial, relying in part on that interview as proof that the misconduct did not substantially influence the jury. The judge also pointed out that Ms. Banner never asked for a mistrial during trial.

What the Fifth Circuit decided

The Fifth Circuit vacated the judgment and sent the case back for a new trial. It made three main rulings.

Not asking for a mistrial did not forfeit the right to seek a new trial. Ms. Banner objected throughout trial and accepted the court's curative instructions. The court held that "Banner's failure to move for mistrial does not forfeit her claim to a new trial under Rule 59." Requiring a mistrial motion on top of curative instructions, the court reasoned, would defeat the purpose of those instructions.

The trial judge could not rely on a juror's comments to the press to deny a new trial. Federal Rule of Evidence 606(b) generally bars evidence about jury deliberations and jurors' thought processes; it has three narrow exceptions, none of which applied here. The court held that the trial judge abused its discretion by relying on the juror's media interview, repeating its earlier rule that "a motion for new trial may not be based on inadmissible evidence."

The misconduct was too much for curative instructions to fix. "The record tells a sordid story," the court wrote. It found that defense counsel kept going despite more than a dozen sustained objections and multiple interruptions by the judge. Borrowing a trial judge's remark quoted in a 1977 Fifth Circuit decision, the court put it bluntly: "you can throw a skunk into the jury box and instruct the jurors not to smell it, but it doesn't do any good."

The court did not decide whether Ms. Banner's First Amendment rights were violated. The case returns to the district court for a new trial.

Why it matters

The First Amendment question is still open. This case started with a citizen trying to criticize local officials at a public meeting and being told she was breaking the law. The Fifth Circuit did not decide whether her rights were violated; that question will be tried again. Whether a particular comment can be cut off depends on the facts and the meeting's rules, but in our view threats based on a statute already struck down as unconstitutional raise serious concerns.

Every party is entitled to a fair trial. The Fifth Circuit held that, on this record, defense counsel's persistent misconduct was so pervasive that sustained objections and curative instructions could not salvage the verdict. The court stressed that there is no set threshold; each case turns on its own record.

Jurors' after-the-fact comments about deliberations generally cannot be used. Under Federal Rule of Evidence 606(b), what a juror later says about deliberations, votes, or mental processes generally cannot be used to attack or defend a verdict, though the rule has narrow exceptions (for example, extraneous prejudicial information or outside influence).

What this means in Texas

This is a published Fifth Circuit opinion, so it is binding precedent in federal courts in Texas, Louisiana, and Mississippi. Its rulings on new-trial motions, mistrial motions, and Federal Rule of Evidence 606(b) apply in federal civil trials, including civil rights trials, in the federal courts in San Antonio and across Texas. Texas state courts apply their own procedural and evidence rules.

Texans regularly speak at city council, commissioners court, and school board meetings. If you were silenced, threatened, or punished for what you said to your local government, talking with a lawyer can help you understand your rights and the deadlines that may apply.

Attorney advertising. This post is for general information only. It is not legal advice and does not create an attorney-client relationship. Past results do not guarantee a similar outcome in any future matter. Every case depends on its own facts. Grable PLLC was not involved in this case.

Attorney responsible for content: Brandon J. Grable, Grable PLLC, San Antonio, Texas.

Topics: First Amendment