## Facts

- Elvis Washington was prosecuted for distribution of cocaine in a Louisiana district court.
- On the morning set for trial, before the judge, Washington, and defense counsel were present, the clerk of court and the district attorney addressed the jury venire in the courtroom.
- The clerk thanked the venire and stated that the venire’s presence often puts “pressure” on defendants to plead guilty (to charged or lesser offenses), in which event the venire would be sent home without serving.
- The clerk then introduced the district attorney, who thanked the venire, called jurors “the backbone of our system,” expressed hope service was not inconvenient, and indicated hardship requests could be raised with the judge.
- Jury selection proceeded in the usual way after these remarks.
- Defense counsel moved for a mistrial, arguing the prosecutor’s one-sided ex parte contact sought to gain favor with prospective jurors and the clerk’s comments implied defendants generally are guilty and trials are exceptional.
- The trial court denied the mistrial, Washington was convicted, and he appealed, challenging the denial.

## Issues

1. Whether ex parte, pre-voir dire remarks to the jury venire by the clerk and the prosecuting attorney, outside the presence of the judge, defendant, and defense counsel, constituted improper juror contact and prosecutorial misconduct requiring a mistrial.
2. Whether the trial court’s denial of a mistrial based on those ex parte communications required reversal and a new trial.

## Decision

- The Louisiana Court of Appeal, Second Circuit reversed the conviction and remanded for a new trial.
- The court held the ex parte communications with the venire constituted improper juror contact and prosecutorial misconduct.
- The court concluded the clerk’s statement about venire “pressure” causing guilty pleas and the prosecutor’s unsupervised remarks to the venire created an unacceptable risk to jury impartiality.
- The trial court therefore erred in denying the motion for mistrial.

## Legal Principles

- Ex parte communications with venire members by court personnel or a party, especially the prosecutor, threaten the impartial administration of justice and are strongly disfavored.
- A prosecutor’s unilateral contact with the venire outside the presence of the judge and defense can constitute prosecutorial misconduct because it may create favorable impressions of the State before voir dire.
- Remarks suggesting guilty pleas are common because the venire’s presence “pressures” defendants can imply defendants are generally guilty and can bias jurors against a defendant who proceeds to trial.
- For this type of improper venire contact, reversal may be required without a defendant proving specific, measurable juror prejudice, given the inherent risk to impartiality.

## Conclusion

The appellate court reversed Washington’s conviction and ordered a new trial because the clerk and prosecutor addressed the jury venire ex parte before voir dire, and the one-sided, unsupervised remarks—particularly those implying guilt and encouraging favorable views of the prosecution—required a mistrial.


State v. Washington, 626 So. 2d 841 (La. Ct. App. 2d Cir. 1993)