In May 2017, former Florida congresswoman Corrine Brown was tried in federal district court on 24 counts of mail and wire fraud and related charges, in connection with an alleged scheme in which, the government charged, she and co-conspirators raised money for an ostensible scholarship fund and then diverted it to their personal benefit. After an eight-day trial, the jury was given its instructions by the court; at the end of the second day of its deliberations one juror (Juror 8) relayed her concern to the judge that another juror (Juror 13) had spoken of being guided by a “higher being” in reaching the conclusion that Brown should be acquitted on all counts.
Summoned to meet with the judge and counsel in the case, Juror 13 was questioned about what he had said, and about his ability to participate in deciding the case according to the evidence and testimony. After two probing—but often somewhat opaque—interviews, the judge decided to excuse the juror (and seat an alternate in his place), ruling that it was “beyond a reasonable doubt” that he could not be trusted to abide by his juror’s oath to do impartial justice according to the evidence. Brown was acquitted on four counts and convicted on twenty; in December 2017 she was sentenced to five years in prison and required to pay restitution.
Brown’s motion to the district court for a new trial was denied, and last week, on January 9, her conviction was affirmed by a three-judge panel of the Eleventh Circuit: Judges Robin Rosenbaum (an Obama appointee) and Anne Conway (a Bush 41 appointee sitting by designation from the Middle District of Florida) in the majority, and William H. Pryor, Jr. (a Bush 43 appointee) dissenting.
Judge Rosenbaum’s 48-page opinion for the court begins: “If the right to a jury trial means anything, it means a right to a verdict based on the evidence.” That sentence captures the thrust of her reasoning—that Juror 13 was rightly excused because he would not deliberate on the basis of the evidence, but substituted some form of divine guidance, heedless of the facts and the law of the case. Judge Conway, a trial judge from the same court in which Brown was convicted, stressed in a two-page concurring opinion that her colleague who presided over the trial had not abused his discretion in removing Juror 13.
Judge Pryor’s 65-page dissent is a tour de force, raising a serious alarm about the lack of understanding and respect that our legal elites have for the widespread religious beliefs of ordinary Americans. Both Rosenbaum’s and Pryor’s opinions quote extensively from the interviews of Juror 13 by the trial judge, and Pryor is absolutely right: there was nothing in the juror’s answers to the court’s questions that “establish[ed] beyond a reasonable doubt that he was unwilling or unable to perform his duties as a juror.” Indeed, everything Juror 13 said indicated that he had been praying—altogether permissibly—for the Holy Spirit to aid him in weighing the evidence in Brown’s case, and that he believed the Holy Spirit had answered his prayers. He manifestly did not say that a divine voice had told him to acquit Brown without regard to the evidence, which would indeed have justified his removal from the jury. All indications are that Juror 13 was doing his level best to keep his oath as a juror. As Judge Pryor writes at the outset of his opinion, Juror 13 “was dismissed because he apparently meant” the oath—complete with its invocation “so help me God.”
The panel majority conflates the permissible case of a juror praying for guidance with the impermissible case of a juror ignoring the evidence (for whatever reason, religious or not) because Juror 13 reported that his prayers had been answered. As Pryor writes, “One persistent confusion that has plagued this appeal is the notion that a juror’s belief that he has received divine guidance reflects a form of improper outside influence.” The judges in the majority appear not to credit the possibility that a reasonable person could reasonably believe that when he talked to God, he received a reply. Or perhaps they believe that a reasonable person should refuse to credit any apparent reply that he receives. Or, worst of all, they might believe that there is something suspect, something not quite right, about praying for wisdom and discernment at all.
As Judge Pryor explains, with citations to religious texts across multiple traditions and to contemporary survey research, countless Americans not only talk to God in prayer, a great many of them believe that God answers them. Faithful adherents of many religions believe “God is present, at least potentially, in the deepest recesses of the human heart and mind,” and that if they beseech his aid, an inner voice may respond. “One common goal of prayer is to attune the mind to receive God’s internal guidance,” Pryor adds.
Judge Pryor is worried, not without reason, that “our credentialed judicial elite,” with their extensive secular education and their unrepresentative experiences, too commonly have their minds closed on the subject of religious faith and devotion. Worse, he is concerned that his court now “countenances discrimination against a substantial segment of the citizens in our Circuit who pray for and believe they receive divine guidance in their daily affairs,” having set a precedent that those who avow a belief in the possibility of prayers answered can and even should be kept from serving on juries.
This important case deserves en banc review in the Eleventh Circuit, and failing that, a grant of certiorari by the Supreme Court. United States v. Brown should be reversed.