Judge William Pryor of the 11th U.S. Circuit Court of Appeals, a jurist from Alabama with a long record in law enforcement, has twice now been high on President Donald Trump’s short list of potential Supreme Court nominees. It’s not hard to understand why. From his cramped view of Eighth Amendment protections to his opposition to reproductive rights to his antipathy for LGBTQ rights, Pryor’s draconian record as state attorney general and jurisprudence from the bench squarely track the goals and policies of the Trump administration.
But if Pryor has one signature issue that ought to endear him particularly to this White House and this Justice Department, if there is one thing for which Pryor will be known even if he never becomes a justice, it’s his alarming crusade to breach the First Amendment’s vital wall between church and state. Like Attorney General William Barr, Pryor has made it known over and over again that he believes there should be more overt religion in public life. As SCOTUSblog put it, Pryor has “consistently—although not uniformly—ruled in favor of parties raising religious liberty claims.”
Pryor’s dubious view of the role of religion under our constitutional system was on display again last week in a Florida case. He wrote a long, rambling dissent in a case that needed no such thing, a dissent that so jolted a fellow conservative judge on the panel that she felt compelled to write a concurrence aimed at diluting Pryor’s message that “religious freedom” ought to extend more fully to jury deliberations. That he would bring such views to the Supreme Court if Trump and Senate Majority Leader Mitch McConnell say so isn’t just a chilling thought; it also could turn jury trials into religious contests.
The case in question rests at the intersection of the Sixth Amendment right to a fair trial, the obligations of trial jurors to heed jury instructions and render impartial justice, and the role of religion in criminal cases. And it’s not just any old case, but a fraud and tax evasion case involving a “sham charity” run by former Rep. Corrine Brown, who was ultimately was found guilty of some of the charges against her and sentenced in 2017 to five years in federal prison. She appealed her conviction, and the central issue, for our purposes anyway, turns on the conduct of one of her trial jurors.
As soon as deliberations in Brown’s trial began, one juror told his fellow jurors that a “higher being” had told him that she was not guilty of all charges. Another juror flagged this comment, and others like it, to court officials. A quick hearing was held in the courtroom. Defense lawyers, unsurprisingly, said there was no reason to question jurors further; here, after all, was one jury vote in favor of their client! Prosecutors wanted the judge to question the jury foreperson. Instead, the judge questioned the God-fearing man now known as “Juror 13.”
During this colloquy, Juror 13 told the judge that he had indeed received instructions from his “Father in Heaven.” The “Holy Spirit,” he told the judge, had told him the defendant was not guilty and Juror 13, in turn, had shared that information with his fellow jurors at the start of deliberations. At the same time, Juror 13 also had said that he understood the judge’s instructions, including the part about rendering judgment solely on the evidence presented in court. Nothing in the record suggests that Juror 13 understood his religious comments to be controversial or contrary to what he had been instructed to do by the judge before deliberations. The trial judge promptly dismissed the juror from the case and replaced him with an alternate juror. Brown appealed the judge’s removal of Juror 13 after she was convicted.
Now, there is nothing complicated about this case. Of course a criminal trial cannot be decided by the vote of a juror who says he has been instructed by God to render judgment one way or another. As the trial judge in the case, U.S. District Judge Timothy Corrigan, explained, the law permits a juror to pray to a higher being for guidance. A juror cannot be expected to render an impartial verdict based on the evidence, though, when “the higher being—or the Holy Spirit is directing or telling the person what disposition of the charges should be made.”
Jury deliberations, in other words, are and ought to remain a one-way conversation between the juror and God. That’s essentially what two judges of the 11th Circuit found last week in upholding Corrigan’s dismissal of Juror 13. Judge Robin Rosenbaum, for the majority, wrote that “the entirety of our procedural mechanisms” in criminal cases is geared to make sure that juries render verdicts “based on the evidence” and not on “perceived divine intervention.” To hold otherwise, Judge Rosenbaum wrote:
would undermine our system of justice by allowing jurors to return verdicts based not on the evidence or law, but instead on a juror’s perceived divine revelation, irrespective of the evidence. Though here, the juror’s perceived divine revelation might have worked in the criminal defendant’s favor had the district court not learned of it mid-deliberations, a contrary holding would allow criminal defendants to be convicted based on a divine revelation divorced from the evidence, rather than the evidence presented at trial—a troubling result, to say the least.
The problem with Juror 13 wasn’t just that he believed he was being directed by God to render a decidedly secular verdict. The problem also was that he evidently did not understand that to say so, to believe so, would undermine his ability to abide by the judge’s instructions and evaluate Brown’s guilt or innocence based solely on the evidence in court. Give Juror 13 credit for being candid, at least. Surely there have been countless defendants convicted in America by jurors who secretly believed they were acting as God’s instruments.
To Pryor, however, Juror 13 was a victim. In his 55-page dissent, the judge argued that Brown’s trial judge had discriminated against Juror 13 by removing him from service after “misconstruing the import of the juror’s religious statements.” Upholding the removal of Juror 13, Judge Pryor predicted, would give lawyers a “tool to target and eliminate certain demographics from jury service.” For example, Pryor wrote: “African American and evangelical Christians are more likely than others to believe that God speaks to them, and the majority’s decision now requires that these eligible jurors be stricken for cause if a discriminating lawyer elicits during voir dire that God communicates with them.”
In dissent, really a dissertation on the “nature of prayer,” Pryor pitched the idea that the juror’s claim of divine intervention in his jury deliberations might well have been true. “Provided the juror is telling the truth,” Pryor wrote, “it is hard to imagine what kind of evidence could prove more convincingly that a deeply religious juror should not be dismissed.” Jury deliberations, in Pryor’s view, may indeed consist of a dialogue between a juror and “the Holy Ghost” or whatever other spirit to which he prays. Left unanswered by the judge are two essential questions raised by the case: Would you want your life or liberty to be decided by a juror who said he was acting on instructions from God? Would you want your appellate judge to presume this juror really was receiving communications from the Holy Spirit?
So obvious is the peril to the nation’s jury system here that Judge Anne Conway, a Bush appointee, felt compelled to write a concurrence to explain what Pryor’s dissent didn’t mean. “This is not a case which turns on a juror’s religious beliefs or religious freedom to engage in prayer or seek guidance during deliberations when applying the law to the evidence in the case,” she wrote. “Rather, it is a straightforward case about whether the district court —having concluded based on direct questioning that a juror was not following the court’s instructions—abused its discretion in dismissing that juror.”
It is unlikely that the 11th Circuit, en banc, will take up the case and even less likely that the Supreme Court will try to rescue the honor of Juror 13. This may explain why Pryor went as far as he did in his dissent. He knows that his take on religion in the jury room is still, for now, an outlier. He knows that the president’s evangelical supporters will still credit him for waving the banner of “religious freedom” if another seat opens up that Trump can fill. He knows his crusading views on the topic match those of the attorney general. Meanwhile, the rest of us are reminded again of what’s really at stake on the Supreme Court this November.
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