Divine Deliberations
Divine Deliberations
En banc Eleventh Circuit reverses former Congresswoman's conviction after a juror was excused for saying the Holy Spirit told him the defendant wasn't guilty
To what extent should jurors be able to bring their faith into the jury room? Would a strict prohibition discriminate against people of faith? What role should scholarship and behavioral research play in answering these questions?
These debates divided the Eleventh Circuit, sitting en banc, in a decision issued last week. The majority held that a district court erred by excluding a juror who said, near the beginning of deliberations, “that the Holy Spirit told him that the defendant … was not guilty on all charges.”
Not Your Standard Jury Exclusion
Questions of faith and juries have come up before, of course. But they come up most often in the death penalty context, when a juror’s faith or beliefs prevent her from voting for or against a death sentence. Or where a juror’s faith prevents him from sitting in judgment of others. This case was different.
Corrine Brown, a former Congresswoman, was indicted in 2016 on federal fraud, ethics, and tax charges. They were based on allegations that she conspired with others to defraud donors to a charitable association purporting to provide scholarships to poor students and that she used her position in the U.S. House to further that scheme.
The case went to trial in 2017. A magistrate judge supervised three days of voir dire to select a jury which ultimately included Jurors Number 8 and 13. Juror No. 13 did not raise his hand when the magistrate judge asked if any jurors had “any political, religious, or moral beliefs that would preclude [them] from serving as a fair, impartial juror.”
After an eight-day trial, the jury began deliberations. And for the first two days things seemed to proceeding normally. On the evening of the second day, however, Juror No. 8 called the courtroom deputy and said she was concerned because another juror was talking about a “higher power,” and that she thought other jurors were also concerned.
The next day, Juror No. 8 was called into the courtroom to discuss her phone call. She revealed that Juror No. 13 had said, near the beginning of deliberations, that “[a] Higher Being told me Corrine Brown was Not Guilty on all charges.” And a few hours later, the same juror said that “he trusted the Holy Ghost.” Juror No. 8 said the other jurors had asked Juror No. 13 to base his verdict on the evidence and testimony and laws. She further said that he had not mentioned a higher power again after that, but that she was concerned it would interfere with his ability to deliberate according to the district court’s instructions. Other jurors had also expressed concerns about the comments during deliberations.
The judge then questioned Juror No. 13. The juror said that he was not having any difficulties with his religious or moral beliefs that would interfere with his ability to decide the case on the facts, and that he had “been following and listening to what has been presented and making a determination from that, as to what [he thought] and believe[d].” But he also admitted that he had said a higher being was guiding him in making his decisions:
THE COURT: Okay. Can you tell me, as best you can, what you said.
JUROR [No. 13]: Absolutely. I told them that in all of this, in listening to all the information, taking it down, I listen for the truth, and I know the truth when the truth is spoken. So I expressed that to them, and how I came to that conclusion.
…
THE COURT: Okay. And in doing so, have you invoked a higher power or a higher being? I mean, have you used those terms to them in expressing yourself?
JUROR [No. 13]: Absolutely. I told—I told them that—that I prayed about this, I have looked at the information, and that I received information as to what I was told to do in relation to what I heard here today—or this past two weeks.
…
THE COURT: Sure. When you say you received information, from what source? I mean, are you saying you received information from—
JUROR [No. 13]: My Father in Heaven.
THE COURT: Okay. Is it a fair statement—I don’t want to put words in your mouth. But are you saying that you have prayed about this and that you have received guidance from the Father in Heaven about how you should proceed?
JUROR [No. 13]: Since we’ve been here, sir.
The district court pressed the juror on whether there was any inconsistency between his religious beliefs and his duty as a juror:
THE COURT: Do you feel that there’s any religious tension, or is your religion and your obvious sincere religious beliefs—do you believe it at all to be interfering with or impeding your ability to base your decision solely on the evidence in the case and following the law that I’ve explained to you?
JUROR [No. 13]: No, sir. I followed all the things that you presented. My religious beliefs are going by the testimonies of people given here, which I believe that’s what we’re supposed to do, and then render a decision on those testimonies, and the evidence presented in the room.
…
THE COURT: So what I want to ask you is a fairly direct question, and that is this: Did you ever say to your fellow jurors or to a fellow juror during your—during the time that y’all worked together, when the 12 started, something to this effect, [“]A higher being told me that Corrine Brown was not guilty on all charges[”]? Did you say something like that? Did you say that or something like that to any of your fellow jurors?
JUROR [No. 13]: When we were giving why we were—insight, as far as not guilty or whatever for the first charge, yes.
THE COURT: Did you say the words, [“]A higher being told me that Corrine Brown was not guilty on all charges[”]?
JUROR [No. 13]: No. I said the Holy Spirit told me that.
THE COURT: Okay. And you—and I don’t want to get into your deliberations. But at what point in the deliberations was that? Was it at the beginning? Was it early in the deliberations? When was it?
JUROR [No. 13]: I mentioned it in the very beginning when we were on the first charge.
The district court excused the juror and substituted an alternate. In explaining his rationale, the judge acknowledged that Juror No. 13 had said he was trying to follow the law and felt he was applying the jury instructions correctly. Indeed, the district court found that the juror was “very earnest” and “very sincere” in believing that he was trying to follow the instructions and render proper service.
But, the district court reasoned, by saying that a higher being or the Holy Spirit directed or told him that Brown was not guilty, Juror No. 13 was injecting religious beliefs into the deliberations that were inconsistent with the jury instructions. “By definition,” the judge said, the juror was not someone merely “praying for guidance” or “to be enlightened.” Thus, his statement was “a disqualifying statement.” The judge also noted that the juror was hesitant, at first, to explain how his religious views came up.
After Juror No. 13 was removed, the jury restarted its deliberations found Brown guilty on 18 out of 22 counts.
Brown appealed and a panel of the Eleventh Circuit affirmed her convictions. The full court granted her petition for en banc review and reversed.
The Language of Ordinary Citizens
The majority opinion, written by Judge Pryor, begins its analysis by emphasizing the historic importance of the jury-trial right. Juries “preserve[ ] the democratic element of the law” and “protect[ defendants] from being judged by a special class of trained professionals”—i.e., lawyers and judges—“who do not speak the language of ordinary people and may not understand or appreciate the way that ordinary people live their lives.” And because “[j]urors are ordinary people,” courts should “expect[ them] to speak, debate, argue, and make decisions the way ordinary people do in their daily lives.”
For this reason, the Eleventh Circuit has adopted a “tough legal standard” to ensure that a juror is not removed “because he is unpersuaded by the Government’s case” or “under the mistaken view that [he] is engaging in impermissible nullification.” A juror can only be excused—at least in the Ninth, Eleventh, and D.C. Circuits—where there is “no substantial possibility” that the juror is basing his decision on the sufficiency of the evidence rather than another, impermissible, consideration or there is “no reasonable doubt” that the juror is deciding on improper grounds. Otherwise, the majority says, “we would risk erosion of a fundamental safeguard against ‘being judged by a special class.’”
Many ordinary people, the majority implies, are often religious: “Prayer is a part of the personal decision-making process of many people.” And “[j]urors may pray for and believe that they have received divine guidance as they determine another person’s innocence or guilt, a profound civic duty, but a daunting task to say the least.” It would be wrong and “at odds with the idea that a jury be ‘drawn from a fair cross section of the community” “[t]o ask that jurors become fundamentally different people when they enter the jury room.”
What, then, of the Juror No. 13’s statement that the Holy Spirit told him that Brown was not guilty? Wasn’t that outside influence?
No, the majority, said. This “vivid and direct religious language” suggests, in context, that Juror No. 13 was “doing nothing more than praying for and receiving divine guidance.” While “even many devout believers would stumble over the words ‘the Holy Spirit told me’” and be “unused to hearing such expressions,” the juror’s “idiom was not proof of misconduct,” because “[p]eople talk about religion in different ways.”
Turning to social science, Judge Pryor cited a survey showing that 74 percent of survey respondents said they try to talk to God and 28 percent said God talked back. Citing Dr. T.M. Luhrmann’s study of evangelical Christianity, When God Talks Back, he notes that descriptions of “recognizing God’s voice” are often a description of “an internal mental event” or “inner mental phenomena” rather than any sort of external influence. (Dr. Luhrmann, a anthropology professor at Stanford, filed an amicus brief in support of the defense.) More to the point, evangelical Christians are more likely than others to speak in this way—raising the risk of discrimination.
Religious beliefs can be a reason to remove a juror, the majority admitted, when they do not permit the juror to complete their service. For example, it was proper to dismiss a juror who practiced Swedenborgianism, believed (despite contrary instructions) that defendants were entrapped, and insisted that discussing “the teachings of Emanuel Swedenborg with the other jurors … would be like discussing the theory of relativity with [her] cocker spaniel dog.” So too for jurors who express religion-based disagreements with substantive laws.
But Juror No. 13 did not fit this bill, according to the majority. He not only disavowed any conflict between his beliefs and proper service, but “drew a specific connection between his self-understood religious duty and his—correctly described—legal duty as a juror”:
My religious beliefs are going by the testimonies of people given here, which I believe that’s what we’re supposed to do, and then render a decision on those testimonies, and the evidence presented in the room.
“It is hard to imagine,” Judge Pryor wrote, “what kind of evidence could more convincingly prove that a religious juror should not be dismissed.” After all, he continued, the original and traditional purpose of a jury oath itself is to add religious sanction to an official duty.
The majority also stressed—multiple times—that Juror No. 13 expressed a clear understanding of proper jury service. (E.g., “[I]n all of this, in listening to all the information, taking it all down, I listen for the truth, and I know the truth when the truth is spoken.”) And he never suggested that he was refusing to follow instructions or lacked faith in the justice system. It is common, the Court said, for jurors to express their initial views of the case when entering the jury room.
In the end, the majority said: “Juror No. 13’s vernacular that the Holy Spirit ‘told’ him Brown was ‘not guilty on all charges’ was no more disqualifying by itself than a secular juror’s statement that his conscience or gut ‘told’ him the same”:
Of course, neither a religious nor secular juror may convict or acquit a defendant using his internal decision-making processes without regard to the evidence. But Juror No. 13 repeatedly explained that he was, in fact, reviewing and deliberating over the evidence.
But What About Less Wholesome Guidance?
The dissenting judges emphatically disagreed. In her dissent, Judge Rosenbaum points out that “the same rule governs dismissal of both the juror who says his religious authority told him the defendant is not guilty on all counts and the one who says his religious authority told him the defendant is guilty on all charges”:
So let’s be clear about what we’re really doing today: we are holding that a district judge is powerless to dismiss a juror who, on a record like this one, says the Holy Spirit told him the defendant is guilty on all charges and he trusts the Holy Spirit—even though the judge finds after investigation that the juror is not capable of basing his guilty verdict on the evidence but instead will base his verdict on what he perceives to be a divine revelation. Just think about that.
If even a single juror bases his guilty vote on divine revelation, that would violate the very 6th Amendment jury unanimity rule that the majority purports to protect, she says.
In starker terms, Judge Wilson’s principal dissent points out that the majority’s opinion clears the way for less comforting religious beliefs to enter the courtroom. What if, for example, a juror had said: “Satan told me that Corrine Brown is guilty on all charges.” :
Brown acknowledged that the result would have to be the same as here—the juror would have to remain, even if the district court found, based on its inquiry, that the juror was not capable of deciding the case as instructed.
“That answer,” he continues, “is as telling as it is unsettling.”
That prayer may be an internal mental process is of no moment, according to the main dissent, because the only question here is whether the juror in question is performing his duty as directed. That does not not require “delving into the nature of prayer itself.” Nor is there evidence that this limited inquiry would “have opened the door to preventing religious people from serving as jurors or forcing them to become different people in the jury room.”:
As long as jurors have been called to sit in judgment of their fellow citizens, many have relied on prayer to aid them in that task. Many will continue to do so, and no one here has advocated anything different. It is no attack on people of faith for a district court to ensure that jurors make decisions grounded in the law and the evidence, as our Constitution requires.
While neither dissent grapples at length with the majority’s own limitations on religion’s role in the jury room, Judge Rosenbaum suggests that its approach to reviewing exclusion rulings undermines those purported limitations:
[Even] if a district judge bucks the trend and conducts some investigation, as long as the challenged juror … says that he is basing his verdict on the evidence, the district judge will not be able to dismiss him. When the jury unsurprisingly later returns a guilty verdict, the defendant will have no recourse: [the Rules of Evidence preclude] any inquiry into “any statement [a juror] made or [any] incident that occurred during the jury’s deliberations….” And since the Majority Opinion concludes today that Juror 13’s statement that the Holy Spirit told him that Brown was not guilty … did not result from an “outside influence,” there will be no possibility that a court facing a similar remark by a juror will be able to inquire into whether that juror (or multiple jurors) rendered a verdict because he (or they) thought he (or they) had a divine (or Satanic) revelation and without regard to the evidence.
What Deference is Due?
Judge Wilson’s chief concern, however, was that the majority was not giving enough deference to the district court’s findings. He—as well as Judge Rosenbaum—describes at length why the trial court is better placed than an appellate court to make factual determinations: the trial judge can view the juror, listen to their tone and affect, and in general need not rely on a cold transcript. And he accuses the majority of ignoring precedent requiring it to review for clear error the district court’s factual finding that Juror No. 13 could not base his decision on the evidence.
The majority’s searching analysis of the record, Judge Wilson says, is more akin to de novo review. After all, “the very premise of clear error review is that there are often two permissible—because two ‘plausible’—views of the evidence.” So an appellate court should not overturn a trial court’s finding just because it disagrees with it.
Here, the district court rejected Juror No. 13’s suggestion that he was merely evaluating the sufficiency of the evidence and based that finding on testimony in the record (namely, Juror No. 13’s admission that the Holy Spirit advised him that the defendant was not guilty). While the judge said the juror was “sincere” and “earnest” in his belief that he was following the evidence, Judge Wilson says, a juror can sincerely believe something that is incorrect. Thus, even if there was evidence in the record to support the majority’s view of the facts, that would not justify overturning the lower court.
The majority responds that this is not a case that turns on “credibility determinations,” because the judge found that the juror was “very earnest” and “very sincere.” Nor did the judge base his decision on the idea that the juror was being deceptive. Instead, Judge Pryor wrote, the district court based its ruling on a question of law: whether Juror No. 13’s statements were akin to religious views that do not permit sitting in judgment and thus categorically impermissible. Thus, the majority reasons, clear error review is not appropriate.
Inquisition or Interview?
In his concurrence, Judge Brasher agreed with the majority, but said that the record of the juror’s beliefs in this case should never have been created. The district court should not have inquired of the juror at all, because jury deliberation is “a difficult and, sometimes, emotional process that requires candor and good faith.” “[F]reedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.”
In Judge Brasher’s view the appropriate response here was to allow the jury to keep deliberating, perhaps with an instruction on how to weigh evidence and deliberate with other jurors. This is especially so because there was no holdout juror or impasse at when the issue with Juror No. 13 arose.
The majority does not go that far—at least explicitly. Nonetheless, despite delving (in great detail) into the record the district court created in this case, it says that “a district judge should [not] ordinarily interview several jurors or conduct a lengthy investigation of alleged juror misconduct.” A judge “faced with anything but unambiguous evidence’ that a juror is committing misconduct “need go no further” with an investigation. (emphasis added). Need not is not must not. But it is hardly an endorsement of probing allegations of juror misconduct.
Judge Wilson’s dissent takes both Judge Brasher and the majority to task on this point. A rule that stops the investigation when the judge is “faced with anything but unambiguous evidence, will usually stop the investigation before it starts—or at least before it uncovers the truth,” he argues:
I am concerned that this model—particularly when combined with the majority’s holding—creates a Catch-22 for district courts. In order for a juror’s removal to be affirmed on appeal, the district court must develop a record that will unambiguously support that decision. Of course, as the majority recognizes, “a juror might say that he is deliberating and explain his decision-making in terms of the evidence, when he is in fact not following the jury instructions.” Yet in the majority’s view, the district court cannot make a credibility determination about whether to accept the juror’s assertion unless there is a separate factual foundation for rejecting the testimony.
Jurors could thus evade scrutiny by simply saying the “magic words” that they are basing their opinion on the evidence.
This would be intolerable, Judge Wilson continued, because juror misconduct is real. For support, he pointed to white juries’ refusal to convict Byron De La Beckwith for the murder of Medger Evers and the acquittal of Emmett Till’s murderers. While this case was not like those, “[o]ur history … should remind us that while juror secrecy is of great importance, so is ensuring that juries render verdicts anchored in the facts and the law.” Judge Wilson believes the district court struck the right balance between secrecy and inquiry in this case.
Conclusion
The Eleventh Circuit’s various opinions in this case run for 98 pages. And, as the roughly 8 pages of text here suggest, they are rich with contrasting views on the role of prayer in jury deliberations and the nature of appellate review. Who has it right? I’ll admit to being deeply torn and then leave it to you to decide. But the one clear implication of this case is that questions of religion continue to roil the courts.
What do you think? Start a discussion by leaving a comment below.
The case is United States v. Brown, No. 17-15470.
The majority included Chief Judge Pryor (author) and Judges Newsom, Branch, Grant, Luck, Lagoa, and Brasher.
Judge Newsom filed a concurring opinion, which Judge Grant joined.
Judge Brasher filed a concurring opinion, which Judge Branch joined.
The principle dissent included Judges Wilson (author), Martin, Jordan, and Rosenbaum.
Judge Rosenbaum filed a separate dissent, which Judges Wilson and Martin joined.
Any opinions expressed here are my own. This article is not legal advice; if you have a legal issue, you should consult an attorney.
If you liked this article or have thoughts about it, please like or comment below (or email me at breese@flannerygeorgalis.com) and consider sharing it with your friends and network.
