Prayer and Jury Service: United States v. Brown

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's teleforum conference call. This afternoon, February 4th, we discuss Prayer and Jury Service: United States v. Brown. My name is Evelyn Hildebrand, and I'm the Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Lea Patterson of First Liberty.

 

Lea Patterson:    Thank you so much, Evelyn, and thank you to The Federalist Society for hosting this teleforum today. I am an attorney with First Liberty Institute, which is a nonprofit law firm devoted exclusively to religious liberty law. So today I will be previewing an upcoming Eleventh Circuit en banc argument that has some interesting implications for religious liberty and how religious liberty interacts with jury service and the criminal process.

 

      The case is United States v. Brown, and it asks whether it is appropriate to disqualify a deliberating juror who prays for and believes he has received divine guidance. So the basic context of this case is it's a criminal case on appeal for the denial of a motion for a new trial. Now, First Liberty is part of the team representing the defendant, and we came on board last year after the panel issued its decisions. We came on board to petition for a rehearing.

 

      Now, another point I want to raise before I get started is that this case involves the disqualification of a juror during deliberations. So it's not a jury selection case or a Batson case, although the case could implicate the standards for jury selection.

 

      So with this context in mind, I will start by reviewing the underlying facts of the case. Second, I'll discuss the legal background of how religious beliefs generally interact with jury service in past cases. Third, I'll explain how the case proceeded before the panel before sketching out the key arguments at the en banc level and discussing a few possibilities for the upcoming argument.

 

      All right, so I'll start with the factual background. In April of 2017, former Congresswoman Corrine Brown was tried on various federal fraud charges. By the second day of jury deliberations, the jury had not reached a verdict, although the deliberations were evidently progressing smoothly with no indication of problems. That evening, however, Juror 8, who was not the foreperson, called the courtroom deputy to express concern about another juror who had made comments, quote, "about higher beings."

 

      The next morning, the district court brought in Juror 8 for an interview. And that juror offered the court a letter that she had written, which stated that she was a little concerned about two comments that Juror 13 had made that, quote, "a higher being told him Corrine Brown was not guilty on all charges and that he trusted the Holy Ghost."

 

      According to Juror 8, Juror 13 made the first statement when the jury first went into deliberation and the second one shortly after, maybe within a few hours. After further questioning, Juror 8 agreed that Juror 13 had not made any similar comments since, and he had been deliberating with the other jurors. She also added that there wasn't any obstacle to her own ability to deliberate and that she had made the decision to come to the courtroom deputy on her own without telling the other jurors, although she believed that they shared her concern.

 

      So at that point, the court then turned to interviewing Juror 13. And Juror 13, upon questioning, denied that he had any difficulty with any religious or moral beliefs that were, quote, "bearing on or interfering with" his ability to decide the case on the facts presented and on the law as the court instructed him. When asked whether he had been deliberating with the other jurors, Juror 13 replied that he was following and listening to what had been presented and making a determination from that as to what he thought and believed.

 

      The court then asked whether Juror 13 had expressed to any of his fellow jurors any religious sentiment, to the effect that, quote, "a higher being is telling you how, or guiding you on these decisions, that you're trusting your religion to base your decisions on." The juror replied that he had told the other jurors that, quote, "in listening to all the information, taking it all down, I listened for the truth. And I know the truth when the truth is spoken." He also said, quote, "I prayed about this. I've looked at the information. I've received information as to what I was told to do in relation to what I heard here today and this past two weeks," meaning the trial.

 

      So when the court asked whether it was fair to say that the juror had prayed about this and received guidance about how to proceed, Juror 13 agreed. The court did some further questioning about whether his religious beliefs were interfering with or impeding his ability to base his decision on the law and the evidence. And Juror 13 replied, "No. I followed all the things you presented." He went on to say, "My religious beliefs are going by the testimony 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 courtroom."

 

      So at this point, the court sent the juror out briefly, conferred with trial counsel, and then brought him back for one last question. "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." He added, "I mentioned it in the very beginning when we were on the first charge."

 

      All right, so at this point, on the government's motion, the court dismissed Juror 13 and replaced him with an alternate. So in the court's findings, the court explained that even though he found that Juror 13 was very earnest and sincere and believed that he was rendering proper jury service, the court nevertheless held those statements about the Holy Spirit to be disqualifying. And the way the court explains this was that he found that the juror has expressed views and holds views inconsistent with his sworn duty as a juror in this case because he's not able to deliberate in a way that follows the law and the instructions that the court gave him.

 

      The court emphasized what it was saw as the distinction between the juror, quote, "who is religious and who is praying for guidance and seeking inspiration, and a juror who is actually saying that an outside force, that is, a higher being, the Holy Spirit, told him that a defendant is not guilty." To the court, as the court put it, that's just an expression that's a bridge too far and inconsistent with jury service as we know it. So that's the district court's reasoning for dismissing Juror 13 and seating an alternate.

 

      The reconstituted jury restarted its deliberations and returned a guilty verdict on all but four of the counts. The defendant moved for a new trial, arguing that the court erred in dismissing Juror 13, and the district court denied that motion. So Brown appealed, and a divided Eleventh Circuit panel affirmed that decision early last year. But this September, the court granted rehearing en banc.

 

      So those are the underlying facts of the case. And before I walk you through the issues presented in the panel's decision and then in the en banc proceedings, I'll first provide an overview of the legal background surrounding the interaction of religious belief and jury service. And then I'll explain the operative procedural standard governing this particular case.

 

      All right, so the court and a piece of background that we're dealing with in this case is what constitutes a disqualifying religious belief? So I'll walk through some examples of cases where a juror has been excused because of their religious beliefs, where it's been upheld, and what it looks like.

 

      The typical example is where a juror's religious beliefs preclude him from sitting in judgment of another, or a juror's religious beliefs preclude him from applying a specific law or imposing a particular punishment, such as the death penalty. That's the typical one. So a couple of examples of that would be a case from the 1880's where Mormons were excused from a bigamy trial because they believed that bigamy wasn't a crime. Or a lot of cases will happen when a juror conscientiously believes that they are not able to sit in judgment of another.

     

      Another area of law that is touched on in religion and jury service is the Batson line of cases. So whether the Batson line of cases prohibits religious discrimination in jury selection is an open question. Just for some background, Batson v. Kentucky prohibited racially discriminatory preemptory strikes in jury selection. In a following case, J.E.B. v. Alabama, the Supreme Court extended Batson to prohibit sex-based preemptory strikes, explaining that, quote, "all persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination."

 

      However, the Supreme Court declined to decide whether Batson prohibits religion-based preemptory strikes when it denied cert in Davis v. Minnesota in 1994. Justice Thomas with Justice Scalia dissented from that denial, arguing that J.E.B.'s rationale should extend to essentially all classes that are subject to heightened scrutiny.

 

      So after that, the state courts have split on the question of whether religion-based preemptory challenges are appropriate. But the federal circuits have not yet split directly on that, although there is some tension. The Second Circuit, for example, invalidated preemptory strikes based on religious affiliation, but it dodged a question of whether to invalidate preemptory strikes based on particular religious beliefs.

 

      In the same year, the Third Circuit came to the opposite procedural situation. They upheld a preemptory strike motivated by religious beliefs but declined to decide the merits of a preemptory strike based on religious affiliations. I think in 2013, the Seventh Circuit noted that this tension exists but hasn't taken a position. So all of that is to say that this is still very much an open question as to whether religion-based preemptory strikes are appropriate or not under the Batson line of cases.

 

      Another wildcard area of law that interacts with this is the religious test clause, is whether and how the Religious Test Clause applies to jury services not settled. And there's not much federal case law on this issue. At least one state, that's Mississippi, holds that religion-based preemptory strikes violate the state's religious test clause.

 

      Now, outside of the preemptory strike context, Arkansas, for example, applies its religious test clause to prohibit certain religious questions during jury selection. In Utah, a case found that prohibiting a juror from praying would impose an unconstitutional religious test on jury service.

 

      All right, so with that background in place, I'll now discuss a little bit about the specific legal standard that operates in this case for removing a juror during deliberations. So the rule we're working with is Federal Rule of Criminal Procedure 23(b), which permits a judge to excuse a juror for good cause after deliberation has started.

 

      The Eleventh Circuit's governing standard on this rule comes from a case called United States v. Abbell. And it is consistent with standards from other circuits. Basically, what that standard says is that good cause exists to dismiss a deliberating juror when that juror refuses to apply the law or to follow the court's instructions. That said, a juror should be excused only when no substantial possibility exists that she's basing her decision on the sufficiency of the evidence.

 

      So replacing a juror with an alternate is generally not a favored procedure after deliberations have begun, because under the Sixth Amendment, any criminal defendant tried by a jury is entitled to the uncoerced verdict of that body. As a result, courts interpret the no substantial possibility test as a tough legal standard equivalent to beyond a reasonable doubt. And the reason for this is to mitigate the risk of dismissing a juror who is just not convinced that the government proved its case.

 

      So to remove a juror from a deliberating jury, the district court has to find beyond a reasonable doubt that the juror is not basing her decision on a sufficiency of the evidence. That is, if the record is compatible with the reasonable standard possibility that the juror is able and willing to follow the law and the court's instructions, the juror may not be dismissed.

 

      Now on appeal, the appeals court reviews a decision to dismiss a juror after the start of deliberations for an abuse of discretion, while the factual findings are reviewed for clear error. All right, so I'll give you a couple of examples of what the fact patterns looks like in cases under this rule.

     

      So in U.S. v. Abbell itself, the Eleventh Circuit upheld the removal of a juror who expressed during deliberations that she did not have to follow the law or the Court's instructions, and then completely refused to deliberate. In another Eleventh Circuit case, United States v. Geffrard that the Court upheld a decision to excuse a juror during deliberation because she wrote a letter to the judge arguing that, based on her religious belief in Swedenborgianism, she believed that all criminal prosecution was a form of entrapment and that she refused to deliberate because explaining her beliefs to her fellow jurors would be like, quote, "trying to explain relativity to a Cocker Spaniel." So she got dismissed, and that was upheld.

 

      On the other side of the coin, a good example is a case called United States v. Thomas. That was a Second Circuit case that the Eleventh Circuit actually based its standard on, in part. So in that case, the trial judge dismissed the holdout juror after finding that he had based his acquittal vote on a preconceived social, cultural, or economic opinion. But the Second Circuit reversed and found that that dismissal was inappropriate because the record evidence raised the possibility that the juror's view on the merits of the case was actually motivated by doubts about the defendant's guilt rather than by an intent to nullify the law.

 

      All right, so that is the standard that we're working with. So at this point, I will go through how the Eleventh Circuit panel discussed the case and decided the case initially. So the panel the case went before was comprised of Chief Judge Pryor, Judge Robin Rosenbaum, and Judge Anne Conway, who was sitting by designation from the Middle District of Florida. And that panel affirmed the decision 2-1 in January of last year, with Judge Pryor dissenting.

 

      Before I delve into what those opinions discussed, I want to make a couple of key points here. The first is that it's interesting what is not disputed. Pretty much everyone seems to agree that jurors are allowed to pray. What is disputed is essentially how seriously jurors can take those prayers, so whether jurors can believe that their prayer is answered. And just to illustrate this, in the oral argument before the panel, a lot of the focus was on whether answers to prayer constitute improper external influences analogous to basing a verdict on a Google search.

 

      So the majority opinion was written by Judge Rosenbaum. And that majority affirmed the decision to remove the juror as not an abuse of discretion. To do this, they emphasized a couple things, emphasized the juror's repeated invocation of the Holy Spirit, arguing that essentially the juror was relying solely on perceived divine revelation rather than evidence presented at the trial or the court's instructions. The majority also emphasized the juror's timing, that he mentioned the Holy Spirit at the beginning of deliberation and talked about the charges overall.

 

      That said, the majority did acknowledge that it was a reasonable construction of the record to interpret Juror 13's statements as expressing that he was basing his decision on the evidence. But it ultimately agreed with the district court that Juror 13's religious expressions were conclusively disqualifying, essentially that they're inherently incompatible with jury service.

 

      So Judge Pryor's dissent is essentially a 64-page treatise on prayer. And if you're looking for some fun afternoon reading, I highly recommend it to you. So he opens by quoting the juror's oath to render a true verdict according to the law, the evidence, and the instructions of the court, so help you God. This sets the theme for the entire opinion, which boils down to the following quote. "If courts can invoke God's damnation to ensure faithful juries, then surely individual jurors can rely on divine aid to avoid that fate."

 

      In a nutshell, Judge Pryor emphasized two problems with the majority finding. First, that it employed an overly deferential standard of review, and second, that it relied on the district court's mistaken belief that Juror 13's reliance on and statements about divine guidance were inherently disqualifying.

 

      So I'll first talk about the standard overview. So Judge Pryor argued that the panel opinion did not account for the underlying burden of proof, which is beyond a reasonable doubt, in deciding whether it was an abuse of discretion to dismiss the juror. And Judge Pryor's argument there is that the mistake is reversable for clear error, if it's a mistake in concluding that a fact was proven under the applicable standard of proof.

 

      So he argues that the information before the district court clearly did not exclude a reasonable doubt for a couple of reasons. First, that Juror 13 repeatedly referenced the evidence and he had been actually deliberating with the jury, and secondly, that the district court found his assurances that he was following the law and the evidence sincere. So Judge Pryor goes on to argue that district court erroneously equated a belief in divine guidance with disqualifying religious beliefs of the kind we discussed a little bit ago. 

 

      So what he's arguing is that the juror's statements invoking the Holy Spirit are not actually dispositive in demonstrating that the juror was not following the court's instructions. He argues that prayers are not improper outside influences in the jury service context because he points out that for religious believers, prayer and reliance on God can be inseparable from their everyday way of thinking, speaking, and deciding, and that jurors are supposed to represent a cross section of the population and will accordingly express themselves in a variety of different ways.

 

      One of his points is that a basic tenant of theistic religion is that God assists those who rely on him in their difficulties, strengthening them in both intellectual and practical virtues, and that in the Christian tradition, the Holy Spirit is often the divine person to whom such help is attributed. So his point there is that just because Juror 13's expressions are vivid, it doesn't mean that they're inherently disqualifying. He goes on to highlight the dangers of dismissing jurors too lightly. Essentially, the danger is that the judges and other jurors might misinterpret religious language and end up dismissing a juror who is actually dissenting because of his view on the sufficiency of the evidence.

 

      So I'll just wrap up this discussion of Judge Pryor's lengthy dissent by -- with the following quote as he wraps up. He said, "If religious jurors may pray for God's guidance, it follows that they must be entitled to receive God's guidance, or at least to believe they've received it, because every prayer implies a hope that the prayer be answered."

 

      All right, so that is how the panel opinions shook out. Now, as we're going into the en banc arguments, I'll start giving a little bit of an overview of what the argument -- the basic points of disagreement are in the briefing. So the court granted en banc rehearing in September, and that argument will be on February 23rd. I'll also note that Judge Jill Pryor is recused from the case.

 

      All right, so the question presented for the en banc rehearing is whether disqualifying Juror 13 is reversable error. So I expect that a lot of the focus will be on that standard of review. So what the defendant's argument is emphasizing is that the appellate review must consider the underlying standard of proof as well, essentially asking whether the district court abused its discretion in applying the beyond a reasonable doubt standard.

 

      Now, the defendant's argument is that in applying that standard in the juror dismissal context, a court cannot excuse a deliberating juror unless the evidence of misconduct is so convincing that it excludes any reasonable possibility that the juror is able and willing to follow the court's instructions. And this is because any lower evidentiary standard could lead to removing jurors based on their view of the sufficiency of the prosecution's evidence rather than on actual misconduct.

 

      So the defendant's argument is that, given the context, a significant possibility exists that this juror was expressing his decision-making process about the sufficiency of the evidence from the perspective of and in a language common to his faith tradition. And one of the points of emphasis here is that the district court found the juror sincere in his belief that receiving the Holy Spirit's guidance was consistent with considering the law and the evidence. But ultimately, the district court decided that the statements about the Holy Spirit were inherently disqualifying, nonetheless.

 

      So on the other side of the coin, the government is emphasizing the deferential nature of the abuse of discretion standard, and also emphasizing the district court's unique position in evaluating a juror's credibility. Essentially, the argument goes, because a district judge observes jurors on a daily basis, listens to their pledges to deliberate fairly, the judge is in the best position to judge their demeanor. And this is why the court of appeals gives deference in the first place.

 

      So to flesh out that argument, the government's arguing -- points to a few facts, arguing that Juror 13 was evasive in explaining his reasoning, and arguing that because he discussed the Holy Spirit in the beginning of deliberations, it demonstrates that the juror had made up his mind apart from the evidence. On the beyond a reasonable doubt standard, the government is emphasizing that that standard doesn't actually require the government to rule out every reasonable hypothesis consistent with innocence, so the court can affirm, even if there is a reasonable construction of the record that supports the idea that Juror 13 was deliberating appropriately. So those are the key disagreements on the standard of review.

 

      But another significant portion of disagreement boils down to whether the statements invoking the Holy Spirit's guidance are actually inherently disqualifying. And it's that district court finding that makes this case consequential for juror qualification more broadly. So that's because even if this juror should have been disqualified, it doesn't necessarily mean that everyone who relies on the guidance of the Holy Spirit is categorically ineligible for jury service. But that's the result that the district court's reasoning creates.

 

      All right, so the government's argument on this is that the juror's statements about the Holy Spirit are inherently disqualifying and saying that, essentially, they're impossible to reconcile with an evidence-based decision, even if he sincerely assured the court that they were reconcilable with an evidence-based decision. Essentially, the government's argument is that the reference to the Holy Spirit referred to the juror receiving a directive from on high outside of the evidence rather than receiving divine guidance in processing the evidence.

 

      So on the other side, the defendant's argument is that this boils down to finding that relatively abstract religious beliefs are permissible in jury service, but that more specific concrete beliefs, including the notion that the divine could lead a juror to one view of the evidence, those are prohibited.

 

      Now the defendant flags some constitutional religious liberty concerns that come when a court decides that it understands someone's religious beliefs better than they do. And so what the defendant's emphasizing here is that there is a significant possibility that the juror was expressing his decision-making process in language common to his faith tradition, and that excluding those kinds of expressions and beliefs in all circumstances is inappropriate.

 

      I think one of the points there is that a lot of the cases we discussed earlier concerning the religious beliefs that are disqualifying has arose in a context where the juror and the court all agreed that the juror's religious beliefs impeded her ability to follow the law there. There's not a lot of case law where a juror says that they can deliberate, that their religious beliefs are consistent, and a judge doesn't believe them.

 

      So at that point, that is a good overview of what the key arguments are in the en banc briefing. And so we're looking forward to the February 23rd oral argument. And of course, I can't really speculate about what that could hold, but there are a few possibilities for what an opinion could look like. We could see something like an attempt at a narrow affirmance that tries to rely on the standard of review but avoid the panel opinion's more sweeping logic.

 

      Of course, our argument is that because of the record below and the underlying standard of proof, there isn't such a sweet spot where the court can affirm without creating a rule that inappropriately disqualifies significant portions of the population based on their religious beliefs. And then, of course, we could also see Pryor's opinion 2.0 where the dissent treatise on prayer turned into a majority en banc opinion. So we will look forward to seeing what the court does with it.

 

      And at this point, I would be more than happy to answer any questions.

 

Evelyn Hildebrand:  Wonderful. Thank you so much. We will now go to audience questions. And while we are waiting for callers to line up in the queue, Lea, do you think that you could see this case ending up in the Supreme Court, although that is speculation, so give it your best shot.

 

Lea Patterson:  All right, I'll give it my best shot. It is a very interesting case, and it is the kind of case you don't see very often. So the chances of it going to the Supreme Court I think will really depend on how the en banc court decides. And it does lie at the intersection of a lot of interesting questions, like Batson issues that haven't been resolved, religious test clause issues that haven't been resolved. So who knows?

 

Evelyn Hildebrand:  Great. And we do have some callers who have lined up in the queue.

 

Caller 1:  Well, it says I have the floor. I have serious reservations about this being argued again. I think our court system and our judicial system -- and you'll have to pardon me if I stutter a little bit because I'm a disabled veteran who had traumatic brain injury, and my speech area of my brain has been affected, okay.

 

      But I want to give everybody that's listening a couple of quotes that I've memorized. And one of them I'm going to paraphrase. It's George Washington's farewell address. He said of all the dispositions and habits which to lead to political prosperity, religion and morality are indispensable supports. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of moral and religious obligation desert the oath which are the instruments of the investigation of the courts of justice?

 

      My next quote is from John Adams. Our constitution was made only for a religious and moral people. It is wholly inadequate to the government of any other. And I am really incensed about the judicial system in our country trying to take the religious part of our country, of our Founding Fathers out of the equation based on the three words, separation of church and state, the four words, which was never written in the Constitution. I get in arguments all the time about it, and I inform people that that was a minority opinion written by a federal judge many, many years ago.

 

      We need to let people be heard, regardless of their faith. And if a man needs to take his case to the Lord to pray about it, to find out if the evidence that he heard was truthful, and if a person needs to take that to the Lord, to a higher power, I don't care what they call them, Allah, the Lord, whatever, and pray about it, and have some intercessory involvement with the Holy Spirit, then so be it.

 

Evelyn Hildebrand:  Thank you --

 

Caller 1:   -- This should never have gotten to our court. This never should have gotten to our court system. Those two judges -- I'm sorry. They have forgotten to read the words of our Founding Fathers. They probably don't even know what The Federalist Papers are.

 

Evelyn Hildebrand:  Thank you, sir, for calling and for voicing your opinion here. I did want to ask if you had a question that you wanted to ask our panelist?

 

Caller 1:  Yes. I would like to know what constitutional basis that this was ever even brought to that court to begin with?

 

Evelyn Hildebrand:  Great, thank you very much.

 

Lea Patterson:  Well, I can tell you this, I sure appreciate your questions. And I tell you, you won't find me disagreeing with George Washington and John Adams here, so I appreciate those quotes as well.

 

      The reason why this arose in court is basically the argument that -- trying to ensure that the jury is considering the evidence in making its decision. So that's why it got appealed, why it's being argued now. And I'll just say that the en banc argument is a wonderful opportunity for the court to give that decision disqualifying that juror a good second look.

 

Evelyn Hildebrand:  Great, thank you very much. At this point, we'll move to our next caller.

 

Caller 2:  Thank you. I don't have a question, but I just have a comment. I want to thank Ms. Patterson for what I consider to be an exceptional overview of the precedent behind the case as well as the issues presented on appeal. Mr. Brown's in good hands, and I wish you every success in your endeavor. Thank you for your advocacy.

 

Lea Patterson:  Well, thank you so much. That's very kind.

 

Evelyn Hildebrand:  And we'll now move on to our next caller.

 

Caller 3:  Hello. I'm, in Miami in the Eleventh Circuit. And it seems to me that the person, Juror 13, expressed his or her divine guidance from the Holy Spirit right at the beginning of deliberations, told the other jurors that the Holy Spirit had told him or her that the defendant was not guilty. There was, as I read it—and I only skimmed briefly over the headnotes before this call—some testimony from the other jurors -- the other juror, number eight, that this person said it more than once that the Holy Spirit had told him that the defendant was not guilty at the beginning, and after that, was going through the motions.

 

      Now, I think we would agree that had this Juror 13 not said anything and went through all of the deliberations, prayed about his vote and then voted, and then said he had guidance from the Holy Spirit, probably you'd get a different result. But he didn't. He said it right up front.

 

      And I'm still trying to digest why this is that it's different than if the juror had called his mother and said, "I always rely on my mother, and she said that the defendant wasn't guilty. I'll listen to whatever else you guys have to say, but as far as I'm concerned, it's not guilty unless somebody comes up with something really great otherwise." So why is that not the case?

 

Lea Patterson:  Sure. So I think that Judge Pryor really provides the best explanation of that, in the sense that when people often talk about praying for -- one of the things that everybody agreed on is that jurors can pray. They can pray for guidance. And so when someone's praying for guidance, it's only natural that they are expecting to receive guidance.

 

      So one of the things that Judge Pryor was emphasizing is that talking in terms of the Holy Spirit's guidance is a natural part of how a significant portion of the population discusses and thinks through issues. So I think one of the analogies that we made in our petition for rehearing is that it's more analogous to someone who says, "You know, I trust my gut." In that context, they could be expressing their conclusion about the credibility of a witness that they saw, their understanding of how the court -- or rather, how the prosecution made its case and whether it did or not.

 

      So in that sense, it's part of having a jury drawn from ordinary people is to provide that check on prosecution and on the judiciary by bringing in that perspective of ordinary people. And ordinary people are expected to talk and discuss the way ordinary people do. So that's kind of how it's different than that hypothetical. At least, that's how we argue it.

 

Caller 3:  Understood. But I continue to think that there's a difference between being guided, let's say, as to the credibility of the witness or witnesses, as opposed to the ultimate issue and deciding that up front by asking the Holy Spirit, and having the Holy Spirit say, "Yeah, this guy is not guilty," as opposed to listening to the evidence and the arguments of the other jurors, and then being guided by your religious interpretations of what the evidence was or something, because those are ordinary people. A good percentage of our populace is religious, and they are guided by their religious beliefs when they are listening to the evidence. It's a big difference than being told point blank by the Holy Spirit that the guy is not guilty.

 

Lea Patterson:  No, that's certainly how the case breaks down. That's where the argument is, and we'll see what the Eleventh Circuit does with it.

 

Caller 3:  I look forward to that. Thank you.

 

Lea Patterson:  Thank you.

 

Evelyn Hildebrand:  Wonderful. And while we're waiting for more people to line up, I did want to ask, maybe there's an angle or a comment that you'd like to make about Judge Pryor's comment that certain demographics, like Evangelical Christians specifically, might be more impacted -- there might be some sort of disparate impact on that segment of religious believers.

 

Lea Patterson:  Sure. So that was at the end of Judge Pryor's dissent. He was predicting some of the impacts that the panel opinion could have, that it could impact Batson issues and could even disguise race-based Batson violations because the religious belief that the majority found to be inherently disqualifying overlaps significantly with certain demographics, namely African Americans and Evangelical Christians. And I think he was citing a peer research study for the data on that.

 

      But that was certainly one of Judge Pryor's predictions on how the panel opinion could impact practice in the future. And I'd say that at the end of the day, the whole reason why this case, I think, is going en banc and why it's being argued the way that it is, is that before a consequence like that happens, we need to make really sure that these are actually disqualifiable religious beliefs and not something else.

 

Evelyn Hildebrand:  Great, thank you. At this point, I'll turn the floor over to our next caller.

 

Caller 4:  I'm all set. Lea, I think you addressed it just in the comment before this time around, so I'm all set. Thank you very much. I'll give it back to you.

 

Evelyn Hildebrand:  Thank you. All right, and we'll move on to our next caller.

 

Caller 5:  Yeah, hi. I just have a procedural question. I'm guessing that the defendant was convicted and this now is coming up on appeal because as a former prosecutor, I would be aware that if the defendant had been acquitted, there wouldn’t be an opportunity to appeal this issue. So it seems as if, at least in criminal cases, this is going to -- or could work in one direction only.

 

Lea Patterson:  Yes, you're correct that the defendant was convicted and that she was appealing for a motion for a new trial. Yes.

 

Caller 5:  Thanks.

 

Evelyn Hildebrand:  Thank you. And our next caller?

 

Caller 6:  Thanks again. I just wanted to offer, I suppose, a rebuttal to a degree on the previous caller's concern about the juror not waiting to deliberate. And I would suggest that any attorney, whether a prosecutor or a criminal defense lawyer who's tried criminal cases—I've tried many—understand and knows. And I would submit to you that even judges know that jurors begin assessing a case and the defendant the minute they're in voir dire, let alone empaneled, by observing the defendant at counsel table, and then as the case proceeds.

 

      So the idea that somehow this juror didn't deliberate but simply prayed and was enlightened to believe that the defendant was not guilty I think misses that point. The juror had heard the entire case, all of the evidence, and then prayed with respect to guidance as to how to assess that evidence. He or she would not have been the first juror who had made up their mind the moment they went into the jury room to deliberate. So I don't think it's entirely accurate to say that the juror did not deliberate. I think, in fact, the opposite's true. Again, thank you for the presentation. It's been excellent.

 

Lea Patterson:  Well, thank you so much. And honestly, I couldn't add a thing to those comments. I appreciate them, and those are one of the arguments that the defense makes.

 

Caller 6:  Thank you again.

 

Evelyn Hildebrand:  Great. We'll now move on to our next caller.

 

Caller 7:  Yes, good afternoon. Fascinating presentation. Fascinating issue. I had what may hopefully be three quick questions before -- I don't want you to run out of time. But first, you mentioned a judge who had recused herself, and I didn't pick up the rationale for that. Wasn't sure if its relevant, but I'm just curious.

 

      Second question is whether or not -- little difficult following procedural posture, but are the Batson -- or is the extension of Batson actually implicated here or not? I wasn't entirely following that.

 

      And one of the third questions I was kind of curious about is the extent to which court formalities with religious overtones, things like jurors taking an oath or the witnesses swearing in, sometimes with their hand on a Bible. Those seem to be at least tangentially implicated, and I wonder if those were brought into the discussion or have been considered to be implicated in ways in evaluating the case?

 

Lea Patterson:  Sure. All right, to your first question, the judge who is recused is Judge Jill Pryor.  And the reason has not been disclosed, so I can't provide any illumination on the reasoning there.

 

      All right, to the second question, the Batson issue is not directly implicated, but -- as I said, it's not directly raised because it's not a jury selection case. But at the same time, because you're deciding whether these religious beliefs are inherently disqualifying, then that's going to naturally trickle down to jury selection. And I think there have been some cases in state courts I've seen. One in Florida comes to mind in particular where a juror was struck peremptorily because the prosecutor assumed that they held that disqualifying religious belief but didn't have any proof that they actually did. So to the extent that Batson is implicated, it's implicated in that way.

 

      And as to the third question about religious formalities in the courtroom, that really came out in the discussion with Judge Pryor's dissent quoting the jury oath itself, the phrase "so help me God." So I think there weren't a lot of discussions about other kinds of religious courtroom procedures. But I think one thing I can point out is that in an argument that one of the amici made, the amicus brief for the ACLJ argued that essentially the panel decision would result in forcing jurors to limit themselves to ceremonial prayer that they never expected to actually be answered. So those are some of the arguments surrounding that issue that have arisen in the course of the case.

 

Evelyn Hildebrand:  Wonderful. We'll now move to our next caller.

 

Caller 8:  Yeah, I haven't had a chance to read the Supreme Court jurisprudence on this, but I wondered if you got an impression as to how Justice Scalia, if he were still alive, and Justice Thomas might rule on this issue based upon their dissents in, I think it was, what, Ober -- something or other, Obergefell?

 

Lea Patterson:  Well, I honestly -- I don't think I could speculate. I don't think I'm on a level to speculate about what the best Supreme Court justices in history would say. But as a general matter, one of the themes of this case is whether the jury has space for people who express themselves in all sorts of ways, including in religious ways.

 

Caller 8:  I guess the other thing I wanted to -- it seems very coincidental that Jill Pryor and Bill Pryor both have the same last name, spelled the same way. Is there a possibility that the two of them are somehow related? I know one is from Pennsylvania, one is from Alabama, so that doesn't lend itself to them being related. But it just seems a remarkable coincidence.

 

Lea Patterson:  Well, I'm afraid I have no earthly idea.

 

Caller 8:  Okay. Thank you very much.

 

Evelyn Hildebrand:  Thank you. And now we'll move on to our next caller.

 

Caller 9:  I wonder how this works out in practice as a rule if it's sustained, because in California it specifically says you cannot disqualify a juror on the basis of his or her religious beliefs. So how can you conduct a valid voir dire to find out whether or not someone is going to use prayer or some religious concept in deciding a case if you're prohibited from disqualifying on the basis of religious beliefs? Isn't there an inherent and seemingly irresolvable conflict here?

 

Lea Patterson:  Well, I would definitely agree that it presents some problems. Now the jurisdictions are different, so we won't have any direct conflict with California's ruling if the Eleventh Circuit en banc decides to go the way of the majority panel opinion. But at the same time, that's one of the issues that I think Judge Pryor flagged and that the defendant's en banc briefing raised is that a consequence of affirming this decision would be opening up a jury selection nightmare.

 

Caller 9:  Yeah, I quite agree. I've had to traipse around this issue with jurors in religious liberty cases, and it can be very tricky. Anyway, thank you very much for your presentation.

 

Lea Patterson:  Thank you.

 

Evelyn Hildebrand:  And we'll now move on to our next caller.

 

Caller 10:  Yeah, I wanted to know if I could ask about some of the practical implications. If the en banc Eleventh Circuit goes ahead and reverses the decision of the three-judge panel, I'm assuming that this is therefore declared a mistrial and the case gets referred back to the district court for further proceedings. Is that correct?

 

Lea Patterson:  My understanding is that because it was an appeal from denial of a motion for a new trial, it would be remanded for a new trial, essentially.

 

Caller 10:  Now, Congresswoman Brown has served, what, about 24 months of her sentence? Do you think it's likely that she would get retried? I mean, this is a lengthy trial. This is a trial that went on for three weeks, if I'm not mistaken, 30, 40, 50 different witnesses. Do you think it's likely that she would actually be retried if the case is reversed by the Eleventh Circuit en banc?

 

Lea Patterson:  Well, I'm afraid I would have to refer you to my opposing counsel on that. I couldn't say, myself.

 

Caller 10:  All right. I'm assuming -- I will have to admit, I sat through much of this trial. I am somewhat sorry I left before this critical moment occurred, so I didn't really see what happened. But I just would have to think that as a matter of prosecutorial discretion, if this came and landed in my lap, and I had to decide whether or not to retry this case or simply nolle pros it and let Congresswoman Brown go back to her life prior to the trial, I would probably nolle pros it, particularly if Congresswoman Brown was to sign some kind of waiver of action against the United States, or something of that nature.

 

Lea Patterson:  Well, I certainly -- sorry, go ahead.

 

Caller 10:  Politics is such that Congresswoman Brown could very likely get reelected in her district if this conviction was set aside.

 

Lea Patterson:  I certainly appreciate that perspective. It's great to hear from somebody who was actually there in the trial. It's very interesting.

 

Caller 10:  It was an interesting trial. All right, well, thank you very much.

 

Lea Patterson:  Thank you.

 

Evelyn Hildebrand:  Thank you. And as we're approaching an hour, I would just hand the floor back over to you, Lea, if you have any closing comments or anything you'd like to leave the audience with today.

 

Lea Patterson:  Well, thank you so much, Evelyn. I would just like to thank you and The Federalist Society for inviting me to discuss the case today. And thank you to everyone who listened in. I will be interested to see what happens when the Eleventh Circuit decides this case. And again, the oral arguments are on February 23rd. So we'll be looking for that. Thank you again.

 

Evelyn Hildebrand:  All right, wonderful. Thank you so much for your time. On behalf of The Federalist Society, I want to thank our expert, Lea Patterson, for the benefit of her valuable time and expertise today. And I want to thank our audience for calling in and participating with your really excellent questions. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcement about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.