The Holy Ghost In The Courtroom

By DEACON MIKE MANNO, JD

The appeal of a former congresswoman’s fraud conviction is usually handled without reference to the religious freedom rights of a juror, yet that is exactly what is happening in the Eleventh Circuit Court of Appeals. So let me introduce you to the players in this legal-morality play.
First there is former Florida Cong. Corrine Brown. Ms. Brown served as a Democratic member of the House of Representatives from 1993 to 2017. After the 2012 redistricting, the Florida Supreme Court ruled that her district’s redistricting was gerrymandered in violation of the Fair Districts Amendment and ordered it redrawn and poor Ms. Brown was forced to run in a new district which was over 60 percent new to her.
Her run-in with the law, a federal indictment of 22 criminal counts, further eroded her political support and she lost re-nomination in the 2016 primary election.
Fast-forward to her trial, and now we meet the other two figures playing their part in this story: Juror #8 who, while unidentified, comes through as a busybody, and Juror #13, the star of our little story.
After all the testimony in Ms. Brown’s trial, the case was, as usual in these things, submitted to the jury. And, as usual, the judge gave the jury its instructions which cover things such as the elements of the criminal acts that the government must prove, how the jury members must conduct themselves during the deliberations, and the like.
At the end of the second day of deliberations, which apparently were “progressing smoothly” with “no indication of problems,” our busybody, Juror #8, sent a note to the judge in which she expressed concern about the comments made by another juror,our leading man, Juror #13.
The judge called #8 into chambers and quizzed her on the complaint. There she told the judge that #13 had made a few comments which left her uncomfortable. The gist of her complaint was that #13, during the deliberations, made a comment that he was praying for guidance and trusted the Holy Ghost who he believed was telling him that Ms. Brown was not guilty on all counts.
The judge then called in #13 and asked him if he was having any difficulties with any religious or moral beliefs that might bear on his ability to fairly decide the case on the basis of the facts presented and the law. The judge then asked #13 if he had expressed to any of his fellow jurors any religious sentiment upon which he was basing his decision.
According to the transcript of the meeting, #13 told the judge that he had told the other jurors “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 that “I prayed about this, I have looked at the information, and that I receive information as to what I was told to do in relation to what I heard here.”
When the judge asked further if #13 had “prayed about this,” or “received guidance” about how to proceed, the juror agreed. On further questioning about whether his religious beliefs were “interfering with or impeding” his ability to base his decision on the law and the evidence, he replied it did not. “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 [court] room.”
The government then urged the judge to disqualify #13 and replace him with an alternate juror.
The judge did just that, finding that #13 “holds views inconsistent with his sworn duty as a juror…because he’s not able to deliberate in a way that follows the law and the instructions that the court gave him.” The judge made that finding even though there was no evidence that #13 was not participating in the jury deliberations; in fact, even #8 agreed that he had been participating in the deliberations and commenting on the evidence.
After #13 was replaced, the jury deliberated for another day and a half, finding Ms. Brown guilty on all but four counts. Ms. Brown asked for a new trial citing #13’s removal as error. However, the court denied the motion repeating its earlier evaluation of #13’s conduct as having “expressed a conclusion from the beginning of the deliberations and without discussion with his fellow jurors.”
Ms. Brown then appealed her conviction and a panel of the Eleventh Circuit ruled that the district court did not abuse its discretion in removing #13. But one judge on the panel dissented, claiming that the district court failed to abide by the requisite “tough legal standard” for excusing a juror during deliberations and thereby deprived Brown of her right to a unanimous and un-coerced verdict of an impartial jury of her peers.
The full Eleventh Circuit granted a rehearing en banc — with all the judges present, and scheduled it for the week of February 22, 2021.
The briefs are already being filed and the sufficiency of the reasoning for #13’s removal will be at the center of the argument. As the Brown lawyers claim, once a case goes to the jury, “A juror may be dismissed only when no ‘substantial possibility’ exists that he is basing his decision on the sufficiency of the evidence.”
Of course, one of the arguments is that the district court construed #13’s statements about the Holy Ghost and his prayer as opening the juror up to extrinsic beliefs and outside sources that are not permitted in jury deliberations. Naturally, the February hearing, and the briefs, will focus on the religious element involved in the juror’s dismissal.
Probably not a huge case on religious liberty, but one to watch.

• + + One other case out of the Eleventh Circuit: Just before Thanksgiving it struck down two local Florida ordinances that banned licensed counselors from using “conversion therapy” on minors. Conversion therapy, or sexual orientation change efforts (SOCE), is used to change an individual’s sexual orientation and has been very controversial in the past.
  According to some medical authorities, as well as pro-LGBT groups, SOCE is ineffective in fostering any substantial change and has often created a worse situation that encourages suicide, depression, and other psychological maladies. The American Psychiatric Association (APA) opposes it because it is based on the assumption that homosexuality is a mental disorder.
  However, in many places where it is banned — some 19 states — it is not only not available for minors with unwanted same-sex attractions, but a therapist encountering someone seeking assistance must reaffirm the individual’s homosexual feelings. Needless to say, the opposition to SOCE is nearly as controversial as SOCE is.
  The two counselors who brought the lawsuit testified that before the ban went into effect they often saw clients who were depressed and anxious due to internal conflicts over their sexuality or gender identity. They described their therapy as “talk therapy” conducted solely through speech.
  “Both therapists disclaim any ability to ‘change’ any person’s sexual orientation; they believe, however, that through speech-based therapy, their clients who wish to do so can reduce same-sex behavior and attraction and eliminate what they term confusion over gender identity,” the court stated.
  It referred to the ban as a violation of the free speech clause of the Constitution. It said that the bans were a content-based regulation and were therefore to be held to the strict scrutiny standard, which it did not meet.
  The court also rejected the government’s claim that it was only regulating professional conduct. We’ve discussed this issue here before and my guess is that this won’t be the end of the argument, so watch for more.
  (You can reach Mike at: DeaconMike@q.com and listen to him every Thursday on Faith On Trial on IowaCatholicRadio.com.)