The Deliberative Process: When Religious Supplication Intersects with Jury Deliberation

By Adeel Bashir

Freedom of religion and the right to serve on a jury are two of the most essential rights that connect ordinary citizens to the constitutional character of our nation.[1] The Eleventh Circuit of Appeals’ recent en banc decision in United States v. Corrine Brown[2] falls at the intersection of these fundamental rights,against the backdrop of another indispensable right to a well-functioning democracy: The Sixth Amendment’s promise of a jury of peers selected from a representative cross-section of the entire community.[3]

I. Ms. Brown’s Trial and the Holy Spirit.

A federal grand jury indicted former Congresswoman Corrine Brown on various fraud charges alleging thatshe had misused her position as a member of the United States House of Representatives.[4] During a trial that lasted over a week, the government presented evidence that Ms. Brown defrauded donors of more than $800,000 in contributions to a sham charitable organization purporting to provide scholarships to poor students.[5]

On the second day of jury deliberations, a situation arose that became the centerpiece of this appeal. Oneof the jurors called the courtroom deputy to express “a little concern[]” about two comments another juror, Juror 13, had made: (1) that a Higher Being told Juror 13 Corrine Brown was Not Guilty on all charges; and (2) that Juror 13 trusted the Holy Ghost.[6] After conferring with the parties and questioning the juror who expressed concern, the district court questioned Juror 13 to find out whether hehad “prayed for guidance,” which the judge did not view a problem; or whether Juror 13 was “raising some religious view that would prevent him from ever determining” “that Ms. Brown was guilty on charges,” which the judge viewed as “problematic.”[7]

Upon questioning, Juror 13 told the judge that, consistent with the court’s instructions, he was basing his decision on only the testimony and evidence, and also assured the court that his religious beliefs required him to do the same.[8] But when pressed by the judge, “Did you say the words, ‘A higher being told me that Corrine Brown was not guilty on all charges?’” Juror 13 replied, “No. I said the Holy Spirit told me that,” and added, “I mentioned it in the very beginning when we were on the first charge.”[9]

The judge stopped the interview and decided to remove Juror No. 13.[10] While recognizing that Juror 13 sincerely expressed that he would follow the evidence and the law, the judge dismissed Juror 13 because there was “no question” that the juror said, “[a] higher being told me Corrine Brown was not guilty on all charges.”[11]

A “juror who makes that statement to other jurors and introduces that concept into the deliberations,” thejudge reasoned, “is a juror that is injecting religious beliefs that are inconsistent with the instructions of thecourt.”[12] The judge, therefore, determined that “by definition” Juror 13 was not someone “praying for guidance” to “be enlightened,” but someone being directed by “the higher being” or “Holy Spirit” about the disposition of the case.[13]

As a result, the judge replaced Juror No. 13 with an alternate and, the next day, the reconstituted jury found Ms. Brown guilty of 18 counts and not guilty of four counts.[14]

II. The En Banc Eleventh Circuit Reverses Ms. Brown’s Conviction.

In a 7-4 en banc decision, the Eleventh Circuit reversed Ms. Brown’s conviction, holding that Juror 13’s removal violated Ms. Brown’s right under the Sixth Amendment to a unanimous jury verdict.[15] Writing for the majority, Chief Judge William H. Pryor stressed that the “Anglo-American legal tradition has regarded few rights as more sacred than that of a criminal defendant to be tried by a jury of her peers.”[16]Having a jury of one’s peers, Judge Pryor explained, is critical to protect individuals “from being judged by a special class of trained professionals who do not speak the language of ordinary people and may not understand or appreciate the way ordinary people live their lives.”[17] The majority opinion, therefore, highlighted the importance of having a jury include citizens from all walks of life and with all types of beliefs.[18]

In this regard, the majority recognized that “[p]eople talk about religion in different ways,” and remarked that “[r]eligious believers commonly describe God’s guidance less as ‘an outward voice’ than as ‘an inward whisper, a deep speaking into the heart, an interior knowing.’”[19] So, in the majority’s view, “Juror No. 13’svernacular 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.”[20] Because “Juror No. 13 expressed a clear understanding of proper jury service” and “repeatedly referred to the evidence in explaining his deliberative process,” the majority found that the district judge’s categorical disqualification of Juror 13 simply for expressing how his religious views informed his decision-making constituted reversible error.[21]

III. Brown’s Significance for Religious Freedom and Defendant’s Rights.

At first blush, Muslim Americans could celebrate the Brown decision not only because it speaks in terms of pluralism and the right to a representative jury, but also given the important role prayer plays in many Muslims’ lives. Muslims make up about one percent of the total U.S. population, and nearly seventy percent report praying daily.[22] Thus, Brown’s recognition that people often use prayer for guidance and when making important decisions should be a welcomed acknowledgment by the broader American-Muslim community.

Muslims, however, would not be faulted for being skeptical of Brown as a triumph for religious expression, or for questioning whether the result would have been the same had, for instance, Juror 13 asked the courtroom deputy to point him towards Mecca so that he could offer salah before beginning deliberations;or if one of the jurors observed Juror 13 raising his hands in dua while reviewing the evidence.

To that end, the Brown majority made clear that religious beliefs may provide the basis for a juror’s removal, and expressly stated that “[c]ourts may exclude or remove jurors who make clear that they may not sit in judgment of others based on their religious beliefs.”[23]Brown’s reasoning also rejected applying the deferential standard of review that is ordinarily applied when reviewing whether a judge abused his/her discretion when removing a juror. Rather, the majority provided that on this alleged constitutional error, appellate courts should “examine the record to ensure that ‘no substantial possibility’ existed that the dismissed juror was rendering proper jury service.”[24]

The limited role judicial deference played in the Brown result is especially noteworthy. To begin with, while there are examples of courts applying strict appellate standards for a Muslim’s claim of religious discrimination, as in the case of an Arkansas Muslim inmate who challenged prison rules that barred him from growing a half-inch beard,[25] one need look no further than Trump v. Hawaii[26] as an example of acourt relying on a deferential standard to conclude that the President’s “proclamation” banning Muslims from entering the United States fell “squarely within the scope of Presidential authority” under the Immigration and Naturalization Act.[27]

Brown also arises in an unusual posture, dealing with the far less common scenario of removing of a juror after deliberations, unlike the everyday occurrence of striking a potential juror from sitting on a jury beforetrial. The latter scenario is guided by the Equal Protection Clause, which forbids a prosecutor from striking potential jurors solely on account of their race.[28] Although Equal Protection principles extend to strikes based on gender,[29] the Supreme Court has not yet ruled on whether it extends to religiously motivated peremptory strikes. Nor is there any uniform precedent among the federal circuit courts or state courts on the issue.[30]

So, while Brown may give appellate courts pause before relying on judicial deference to affirm the removal of a Muslim juror for expressing his/her religious views, the majority’s reasoning may not apply when reviewing the use of peremptory strikes to disqualify a Muslim from serving on a jury altogether. Brown thus leaves the door open for an appellate court to affirm disqualification by leaning on the principles of judicial discretion, just as in the Trump v. Hawaii involving the “Muslim Ban.”

In the end, whatever Brown imports to future cases, the decision should provide an important lesson for Muslims: that religious expression and good citizenship are not mutually exclusive concepts, and that expressing your religious values does not make you less of an American, but places you within the very fabric of our ideologically diverse citizenry. Muslim Americans, and indeed all citizens, should be encouraged that Brown at a minimum supports the idea that one’s religious practice by itself is not grounds for exclusion from a crucial facet of public life—the right to serve on a jury.

In the wake of Brown’s holding and limits, it is incumbent upon all Americans, Muslim or non-Muslim, religious or secular, to remain vigilant of future decisions to ensure courts uphold the promise that a jury ofone’s peers means a jury should reflect a cross-section of America.

Adeel Mohammad Bashir is an Assistant Federal Public Defender and Appellate Supervisor with the Office of the Federal Public Defender, Middle District of Florida. Prior to his service at the Defender's Office he worked as a litigation associate at Mayer Brown, LLP, from 2010-2012. He is a 2009 graduate of George Mason University, Antonin Scalia Law School.

Sources:

[1]See Zorach v. Clauson, 343 U.S. 306, 313 (1952) (discussing the freedom to worship as one chooses); Flowers v. Mississippi, 139 S. Ct. 2228, 2238 (2019) (discussing the right to serve on a jury); see also Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 587 (2014) (providing that “[a]s a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ at the opening of this Court’s sessions.”) (citations omitted); Andrew G. Ferguson, Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action, NYU Press (2012). [2] --F.3d--, 2021 WL 1821852 (11th Cir. May 6, 2021). [3]See Ramos v. Louisiana, 140 S. Ct. 1390, 1402 n.47 (2020). [4] Brown, 2021 WL 1821852, at *1. [5]Id. at *2. [6]Id. [7]Id. at *4. [8]Id. at *5. [9]Id. at *6. [10]Id. [11]Id. [12]Id. [13] Id. at *7. [14]Id. [15]Id. at *1. [16]Id. at *8. [17]Id. at 9 (quoting Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 874-75 (2017) (Alito, J., dissenting)). [18]See id. at *9. [19]Id. at *16, 17 (quoting, inter alia, Marmaduke Pickthall, The Meaning of the Glorious Koran: An Explanatory Translation 57:3, at 565 (1930) (“He is the First and the Last, and the Outward and the Inward ....”)). [20]Id. at 17. [21]Id. at *13, 14. [22] See https://www.pewforum.org/religious-landscape-study/; https://www.pewforum.org/religious-landscape-study/religious-tradition/muslim/#beliefs-and-practices. [23]Id. at 13, 14. [24]Compare id. at *10 (quoting United States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001) (alterations and emphasis in original)); with at id. at *22 (11th Cir. 2021) (Wilson, J. dissenting) (“Mindful of the deference owed to the factfinder in juror removal decisions, I cannot conclude on this record that the district court abused its discretion). [25]See Holt v. Hobbs, 574 U.S. 352, 355-56 (2015) (holding that prison’s beard policy “substantially burdens petitioner's religious exercise under the Religious Land Use and Institutionalized Persons Act of 2000). [26] 138 S. Ct. 2392 (2018) [27]Id. at 2415. [28] See Batson v. Kentucky, 476 U.S. 79, 86 (1986). [29]See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). [30]See, e.g., United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir. 1998) (stating in dicta that “[i]t would be improper and perhaps unconstitutional to strike a juror on the basis of his being a Catholic, a Jew, a Muslim, etc.”, but holding that because “status of peremptory challenges based on religion is unsettled,” allowing strike based on religion was not plain error); United States v. Berger, 224 F.3d 107, 120 (2d Cir. 2000) (declining to decide whether Batson extends to strikes based on religious affiliation because prosecutor provided a reason for the strike based on something other than juror's membership in a protected class); United States v. DeJesus, 347 F.3d 500, 510 & n.7 (3d Cir. 2003) (affirming the district court’s finding that the government's strikes turned on the jurors’ heightened religious involvement rather than their religious affiliation).

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