Appeals court stunner! Guidance from heaven allowed in jury room

Reverses decision that removed juror for seeking, getting spiritual advice

By Bob Unruh

The 11th U.S. Circuit Court of Appeals stunningly has affirmed that a juror is allowed to seek spiritual counsel through prayer, and get it, while deliberating a criminal case.

The 7-4 result means that former U.S. Rep. Corrine Brown, who had been indicted on and convicted of fraud charges, will get a new trial.

It was during deliberations by the jury that one juror complained to the judge about another juror who had expressed that he had prayed for guidance in the case, and had believed he had been given that guidance.

As former solicitor general Paul Clement wrote in the brief, on appeal, for Brown: “A nation that enshrines religious toleration in its founding document and invokes the religious beliefs of its citizenry to reinforce their public oaths cannot dismiss jurors based on the way they express their religious convictions.”

“We are grateful that the court reaffirmed the strong standard required to dismiss a deliberating juror,” said Lea Patterson, counsel for First Liberty. “No American should be disqualified from fulfilling their civic duty as jurors simply because they believe that God answers prayer.”

The situation developed in 2016, when a federal grand jury indicted Brown. It went to trial in 2017.

According to First Liberty, “During the jury’s deliberations, the district court removed a juror who stated to other jurors that he had prayed for and believed he received the guidance of the Holy Spirit in considering the case. The judge questioned the juror, who confirmed that he had no ‘political, religious, or moral beliefs that would preclude [him] from serving as a fair and impartial juror’ and that he was not ‘having any difficulties with any religious or moral beliefs that are, at this point, bearing on or interfering with [his] ability to decide the case on the facts presented and on the law as [the court] gave it to [him] in the instructions.'”

The judge, Timothy Corrigan, ordered the juror removed from the case, and the 11th Circuit’s decision now has reversed that ruling.

“Corrine Brown was entitled to the unanimous verdict of a jury of ordinary citizens. The removal of Juror No. 13 – a juror who listened for God’s guidance as he sat in judgment of Brown and deliberated over the evidence against her – deprived her of one,” the ruling said.

Chief Judge William Pryor, writing for the full 11th Circuit, said, “Jurors may pray for and believe they have received divine guidance as they determine another person’s innocence or guilt, a profound civic duty but a daunting task to say the least.”

While the juror had expressed that he’d been given insight that Brown was innocent, when he was removed the jury convicted Brown on 18 counts and she was sentenced to five years in prison. A panel of the court earlier rejected her appeal 2-1.

Lea Patterson, legal counsel for the non-profit First Liberty, said those judges earlier had set a harmful standard.

“Dismissing a deliberating juror for believing prayer is effective denies the noble and civic duty to serve as a juror to hundreds of millions of Americans who seek divine guidance through prayer,” Patterson said. “How is it possible that we demand a juror take an oath invoking God’s aid in rendering a verdict but then dismiss that same juror for taking that oath seriously? If this decision stands millions of Americans are disqualified from fulfilling their civic duty as jurors simply because they believe that God answers prayer.”

The court’s majority opinion said the juror’s “vivid and direct religious language, read in the light of his other statements – suggests he was doing nothing more than praying for and receiving divine guidance as he evaluated the evidence or, in secular terms, provided an explanation of his internal mental processes – all consistent with proper jury service.

“Undoubtedly, even many devout believers would stumble over the words ‘the Holy Spirit told me … ‘ or ‘I received information from my Father in Heaven.’ Many people of faith are unused to hearing such expressions. But Juror No. 13’s idiom was no in itself proof of misconduct,” the opinion said.

The opinion continued, “It is hard to imagine what kind of evidence could prove more convincingly that a religious juror should not be dismissed. After all, the original and traditional purpose of the juror’s oath, like that of all official oaths, is ‘to superadd a religious sanction to what would otherwise be his official duty, and to bind his conscience’ against misuse of his office.”

It continued, “For all we know, Juror No. 13’s view that Brown was ‘not guilty on all charges’ was not even entrenched. The record does not support the district judge’s prediction that Juror No. 13 necessarily ‘would have continued in the same mindset.'”

In fact, the juror repeatedly instructed the judge that he was able to follow the evidence, deliberate that evidence with other jurors, and seek the truth in the case.

The opinion noted, “Juror No. 13’s expression that God had communicated with him may be construed as his description of an internal mental event, not an impermissible external instruction. … Juror No. 13’s vernacular 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. Of course, neither a religious nor secular juror may convict or acquit a defendant using his internal decision-making processes without regard to the evidence. But Juror No. 13 repeatedly explained that he was, in fact, reviewing and deliberating over the evidence.”

A separate concurrence with the majority, in fact, faulted the judge himself for interfering. “While a jury is actively deliberating, it is never appropriate for a judge to ‘inquir[e] into [a] juror’s thoughts.’ Let the deliberations play out, let one juror convince another that he is wrong, and let the jury return a verdict.”

Appeals court rules ban on ‘conversion therapy’ unconstitutional

‘This case is the beginning of the end’ for similar laws

A federal appeals court on Friday ruled that ordinances in Florida banning the licensed counseling of people with unwanted same-sex attractions are unconstitutional violations of the freedom of speech.

“We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny,” the ruling from the 11th U.S. Circuit Court of Appeals said.

The decision was the first from a federal appeals court laws against so-called “conversion therapy” – a term rejected by proponents – since a 2018 U.S. Supreme Court ruling. In NIFLA v. Becerra, the high court ruled the government cannot force an individual or organization to express a message chosen by the government.

The current case, Otto, et al v. City of Boca Raton, found that bans by Boca Raton and Palm Beach County violate the Constitution.

The case was fought by Liberty Counsel, which represents Robert Otto and Julie Hamilton and their minor clients.

Liberty Counsel Chairman Mat Staver said the ruling sets a precedent.

“This case is the beginning of the end of similar unconstitutional counseling bans around the country,” he said.

The licensed therapists say they provide lifesaving counseling to minors who want to conform their attractions, behaviors and gender identities to their sincerely held religious beliefs.

Under the laws struck down by the 11th Circuit, a counselor could encourage a client to take life-altering hormone drugs or undergo invasive surgery to remove healthy body parts. But a counselor was barred from helping a client who seeks to overcome unwanted same-sex attractions.

The 2-1 decision from Judge Britt Grant, who was joined by Judge Barbara Lagoa, said the therapy is controversial, but as it is only “talk,” it is protected.

The dissent cited various left-leaning medical associations that claim such talk therapy is damaging to children.

The court said: “Nor can the local governments evade the First Amendment’s ordinary presumption against content-based speech restrictions by saying that the plaintiffs’ speech is actually conduct. We can understand why they would make this claim; if the ordinances restricted only non-expressive conduct, and not speech, then they would not implicate the First Amendment at all. Our Court, though, has already rejected the practice of relabeling controversial speech as conduct. In a case quite similar to this one, we laid down an important marker: ‘the enterprise of labeling certain verbal or written communications ‘speech’ and others ‘conduct’ is unprincipled and susceptible to manipulation/'”

Under such ordinances, which have been implemented across the nation, it “only matters that some words about sexuality and gender are allowed, and others are not,” the court said.

“Speech does not need to be popular in order to be allowed. The First Amendment exists precisely so that speakers with unpopular ideas do not have to lobby the government for permission before they speak,” the opinion said.

“The local governments are not entirely wrong when they characterize speech-based SOCE as a course of conduct. SOCE, after all, is a therapy, and plaintiffs say they want to ‘engage’ in it. But plaintiffs have the better of the argument. What the governments call a ‘medical procedure’ consists—entirely—of words. As the district court itself recognized, plaintiffs’ therapy ‘is not just carried out in part through speech: the treatment provided by Drs. Otto and Hamilton is entirely speech.’ If SOCE is conduct, the same could be said of teaching or protesting—both are activities, after all. Debating? Also an activity. Book clubs? Same answer. But the law does not require us to flip back and forth between perspectives until our eyes hurt.”

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