Many jurors take their responsibilities so seriously that they pray that the verdicts they return in criminal cases are accurate. There does not seem anything wrong with jurors desperately wanting to be “right” and seeking divine inspiration to do justice. But does there come a time when religion is so present in jury deliberations that it disqualifies a juror? The case we discuss raises this question.
A federal grand jury issued a 24-count indictment charging Brown with various offenses related to a purported charity which represented that it raised funds for “among other things, scholarship assistance for disadvantaged students and the purchase of computers to be donated to schools.” The indictment alleged that Brown and her co-conspirators “used Brown’s official position as a Member of Congress to solicit contributions to One Door for Education and to induce individuals and entities to make donations” to that organization, which ended up being spent for the benefit of Brown and her co-conspirators.
Brown pled not guilty and proceeded to trial. All prospective jurors affirmed during voir dire that they had no “political, religious, or moral beliefs that would preclude [them] from serving as a fair, impartial juror” and that they had no “religious or moral beliefs” that would preclude them from “sitting in judgment of another person.” The trial took eight days with 41 witnesses testifying and hundreds of exhibits admitted. At the conclusion, the trial judge instructed the jury on the law and included in the instructions the following: Your “decision must be based only on the evidence presented during the trial” and “must not be influenced in any way either by sympathy for or prejudice against the defendant or the government.” And you “must consider only the evidence that [the court] ha[d] admitted in the case.”
The day after the trial ended, on the evening of the second day of jury deliberations, Juror 8 (who was not the foreperson) called the courtroom deputy and reported that she and other jurors had “concerns” about Juror 13 because Juror 13 had been speaking about “Higher Beings” in connection with Brown’s name. The deputy informed the judge, who communicated with counsel the same evening.
The next morning, the court convened a hearing with counsel and Brown. Both parties agreed it was necessary to interview Juror 8, and the judge reluctantly agreed. Juror 8 appeared before the judge, counsel, and Brown, and the judge immediately instructed her not to reveal the jury’s deliberations. Juror 8 responded to the judge’s request that she share her concerns by providing a letter for the judge, which was copied for the parties, and disclosed that Juror 13 said early in deliberations that “A Higher Being told me Corrine Brown was Not Guilty on all charges” and later said he “trusted the Holy Ghost.” The judge asked Juror 8 some additional questions, and Juror 8 stated that “[s]ome of the jurors are concerned that that’s affecting his—his decision.”
For obvious reasons, defense counsel apparently was anxious to keep Juror 13 on the jury and suggested to the judge that “if [Juror 13] can come out and satisfy the court that he’s willing to follow [its] instructions on the law,” the judge should accept that assurance. The judge responded, “Well, I am certainly open to that possibility[,] . . . but I think I need to ask him.” The judge engaged in a lengthy colloquy with Juror 13. Some excerpts follow:
Court: * * * Are you having any difficulties with any religious or moral beliefs that are, at this point, bearing on or interfering with your ability to decide the case on the facts presented and on the law as I gave it to you in the instructions?
Juror: No, [S]ir.
Court: Okay. * * * Have you expressed to any of your fellow jurors any religious sentiment, to the effect that a higher being is telling you how—is guiding you on these—on these decisions, or that you are trusting in your religion to—to base your decisions on? * * *
Juror: Absolutely. I told them that in all of this, 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. So I expressed that to them, and how I came to that conclusion.
Court: Okay. And in doing so, have you invoked a higher power or a higher being? I mean, have you used those terms to them in expressing yourself?
Juror: Absolutely. I told—I told them that—that I prayed about this, I have looked at the information, and that I received information as to what I was told to do in relation to what I heard here today—or this past two weeks.
Court: Sure. When you say you received information, from what source? I mean, are you saying you received information from—
Juror: My Father in Heaven.
Court: * * * And then you also—of course, you heard my instruction, where you have to base your decision only on the evidence presented during the trial and follow the law as I explained it. Do you feel that you have been doing that?
Juror: Yes, [S]ir, I do.
The prosecution argued that Juror 13 should be excused as a juror, while defense counsel disagreed. The judge then proposed asking Juror 13 directly, “Did you ever make the statement that a higher being told me that Corrine Brown was not guilty on all charges?” Neither party objected, and Juror 13 returned to the courtroom to address the question the judge proposed.
Court: Did you say the words, A higher being told me that Corrine Brown was not guilty on all charges?
Juror: No. I said the Holy Spirit told me that.
Court: Okay. And you—and I don’t want to get into your deliberations. But at what point in the deliberations was that? Was it at the beginning? Was it early in the deliberations? When was it?
Juror: I mentioned it in the very beginning when we were on the first charge.
Following these colloquies, the judge explained, “the fact that somebody prays for guidance or is seeking guidance from whatever religious tradition they come from is perfectly appropriate and not a grounds to dismiss a juror, necessarily.” Nevertheless, the judge announced a decision to excuse Juror Number 13 because he injected religious beliefs into the deliberations, and “he continues to believe that he is being told by a higher power how he ought to proceed in these deliberations, and he has shared that with the other jurors, which, again, is essentially a violation, not a—not a willful violation by Juror N[umber] 13, but a violation of the court’s instructions to base the decision only on the law and the facts that were adduced at trial, and in accordance with the court’s instructions.”
The judge replaced Juror 13 with an alternate juror and instructed the jury to begin deliberations anew. The jury deliberated 11 hours and found Brown not guilty on four fraud charges and guilty on all other charges. Brown appealed and challenged the excusal of Juror 13.
Judge Rosenbaum wrote for the majority as it affirmed Brown’s convictions and held that the trial judge did not err or abuse discretion in excusing Juror 13. The majority cited Fed. R. Crim. P. 23(b)(3), which permits a judge to excuse a juror after deliberations have begun “for good cause.” It rejected Brown’s argument that the trial judge should not have held a hearing and questioned Juror 13 and emphasized the broad discretion accorded to district judges in determining how to investigate allegations of juror misconduct. Judge Rosenbaum addressed the reasons for excusing Juror 13:
[I]f a juror bases his decision on some improper consideration, that deprives the parties of due process and shatters the Sixth Amendment’s promise that a jury’s verdict will be based on the evidence. * * * So conduct or beliefs that cause a juror’s verdict to be rooted in something other than the evidence undermine the jury and trial system as a whole. For these reasons, if our jury system is to be viewed as legitimately convicting or acquitting individuals—a circumstance necessary to the continued vitality of the rule of law in our country—jurors’ decisions must be based on the evidence presented at trial.
Judge Conway offered a brief concurring opinion:
I concur in Judge Rosenbaum’s opinion because it correctly characterizes the record in this case, and it correctly analyzes the law of juror removal consistent with United States v. Abbell, 271 F.3d 1286 (11th Cir. 2001). I write separately to emphasize that 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. 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 based on an assessment of the juror’s credibility and capacity to follow the court’s instructions. Whenever a district court determines that any factor extrinsic to the trial—whether a juror’s stubborn unwillingness to follow the law or evasive answers about that obligation—has so strongly influenced a juror that there is “no substantial possibility” he will base his decision on the evidence in the case, the decision to dismiss the juror is not an abuse of discretion. * * *
Judge Pryor dissented. This is the crux of his dissent:
Over an hour and a half on the third day of jury deliberations, the district court investigated a concern about a juror who, on the first day, reportedly twice used religious language to express his position. During that hour and a half, the suspect juror repeatedly affirmed that he was basing his decision on the evidence. He even explained that he considered it his religious duty to do so. The district court thought he meant what he was saying; in the district court’s words, the suspect juror was “very earnest” and “very sincere.” The other juror who had raised the concern agreed that the suspect juror was deliberating, and she implied that he had not said anything worrisome during the second day of deliberations. Indeed, she never even accused him of misconduct.
But none of these encouraging signs mattered once the suspect juror confirmed that, near the start of deliberations, he had said something to the effect of “the Holy Spirit told me that Corrine Brown was not guilty on all charges.” With next to no context—and no other evidence of misconduct—the district court deemed this statement “an expression that’s a bridge too far, consistent with jury service as we know it,” and conclusive proof that the juror was “using external forces to bring to bear on his decision-making in a way . . . inconsistent with his jury service and his oath.”
* * *
The majority pays little attention to our precedent and this heightened standard of proof. Instead, it stresses that “the district court understood the governing law,” before focusing on the discretion bestowed on district courts when deciding whether to dismiss a juror after deliberations begin. To be sure, the district court identified the correct legal standard, but identifying the correct standard and applying that standard correctly are two different matters. And the district court failed to apply our standard correctly.
Judge Pryor concluded that the judge’s “first interview with Juror No. 13 certainly failed to bring compelling proof of misconduct to light.” So he turned to the second interview and found it to be ambiguous because the judge did not make clear what he was asking.
[W]hen asked specifically whether he had referred to “a higher power or a higher being,” Juror No. 13 said he had told the other jurors “that [he] prayed about this, [he] ha[d] looked at the information, and that [he] received information as to what [he] was told to do in relation to what [he] heard here . . . this past two weeks.” In other words, he used his own language to describe precisely the traditional role of a juror—to listen to the evidence adduced at trial, find the required facts, apply the law to those facts, and render a verdict based on those facts. To say that Juror No. 13 made his decision “irrespective of the evidence” is to ignore what Juror No. 13 said about both his decision and the evidence.
Reasonable judges and lawyers might well disagree on whether the majority or the dissent had the better of it. One obvious problem with judicial inquiries into possible juror misconduct of the kind at issue here is the limitations imposed by Fed. R. Evid. 606(b), which generally bars an inquiry into jury deliberations. Anxious to comply with the rule, the trial judge took pains not to have either Juror 8 or Juror 13 refer explicitly to the deliberations. When the trial judge decided to exclude Juror 13, it seems plain that the judge did not know whether Juror 13’s religious references were a small or large part of what Juror 13 had to say in the jury room. Had the judge asked Juror 13 one clear question—i.e., are you basing your consideration of this case solely on the evidence or solely or partly on what you are hearing from heavenly sources?—and had Juror 13 said he was basing his consideration on the evidence alone, it is doubtful that there would have been any valid reason to excuse him.
There is an ultimate irony in this case. Each juror, including Juror 13, took an oath and swore to “render a true verdict, according to the law, evidence, and instructions of the court, so help you God.” Juror 13 might have taken the italicized portion of the oath too literally.