I previously blogged on the 11th Circuit’s panel opinion  United States v. Brown, 947 F.3d 655 (11th Cir.), vacated, reh’g en banc granted, 976 F.3d 1233 (11th Cir. 2020), here.  See Eleventh Circuit Affirms Conviction of Another Congressman (Federal Tax Crimes Blog 1/14/20; 1/16/20), here.  In relevant part, in the case with some tax counts, the panel opinion upheld the trial judge’s removal of a juror after the jury started deliberations because the juror expressed that

 “A Higher Being told me Corrine Brown was Not Guilty on all charges”. He later went on to say he “trusted the Holy Ghost”.

 In an en banc opinion yesterday, United States v. Brown (11th Cir. 5/6/21), here, the 11th Circuit has reversed and remanded for a new trial.  The en banc majority opinion by Judge William Pryor opens with a good summary:

This appeal requires us to decide whether a district judge abused his discretion by removing a juror who expressed, after the start of deliberations, that the Holy Spirit told him that the defendant, Corrine Brown, was not guilty on all charges. The juror also repeatedly assured the district judge that he was following the jury  instructions and basing his decision on the evidence admitted at trial, and the district judge found him to be sincere and credible. But the district judge concluded that the juror’s statements about receiving divine guidance were categorically disqualifying. Because the record establishes a substantial possibility that the juror was rendering proper jury service, the district judge abused his discretion by dismissing the juror. The removal violated Brown’s right under the Sixth Amendment to a unanimous jury verdict. We vacate Brown’s convictions and sentence and remand for a new trial.

There are concurring and dissenting opinions, with all opinions aggregating 98 pages.

 I offer key (but lengthy) excerpts from the majority opinion (beginning on p. 22) are (substantially “cleaned up” for readability:

Because our jury system works only when both the judge and the jury respect the limits of their authority, a district judge may excuse a juror after deliberations have begun only on a finding of “good cause.” See Fed. R. Crim. P. 23(b)(3). It is well settled that good cause exists to dismiss a juror when that juror refuses to apply the law or to follow the court’s instructions. Such a juror abdicates his constitutional responsibility, and violates his solemn oath. But to remove a juror because he is unpersuaded by the Government’s case is to deny the defendant his right to a unanimous verdict. Distinguishing between these two jurors is often difficult, as the line between them can be vanishingly thin,

To guard against the danger that a dissenting juror might be excused under the mistaken view that the juror is engaging in impermissible nullification, we apply a tough legal standard for the dismissal of jurors during deliberations. Along with four of our sister circuits, we have held that, in these kinds of circumstances, a juror should be excused only when no substantial possibility exists that she is basing her decision on the sufficiency of the evidence. We have explained that this standard is basically a beyond reasonable doubt standard.

 So, for a district judge to find that this standard of proof is satisfied, he must determine with utmost certainty that a juror has refused to base his verdict on the law as instructed and the evidence admitted at trial. Although a district judge applies the same high standard of proof to dismiss a deliberating juror that a jury applies to convict a defendant, our review of their decisions is starkly different—and with good reason. When we evaluate a challenge to the sufficiency of the evidence supporting a conviction, we must view the evidence in the light most favorable to the government, drawing all reasonable inferences in favor of the jury’s verdict. And we consider only a legal question: whether any rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt. We leave a jury free to choose between or among the reasonable conclusions to be drawn from the evidence. This limited review does not [*25] intrude on the jury’s role to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. After all, jurors are the sole judges of the facts. 

But we do not afford the same deference to the dismissal of a deliberating juror—an alleged constitutional error. On this review, we examine the record to ensure that no “substantial possibility” existed that the dismissed juror was rendering proper jury service, instead of looking to confirm that at least a substantial possibility existed that the juror was committing misconduct. Otherwise, we would turn our tough standard on its head, and a constitutional violation might evade detection.

 Without that tough standard, we would risk erosion of a fundamental safeguard against being judged by a special class. We must remember that the Federal Judiciary is hardly a cross-section of America. A district judge, who belongs to a select class of highly educated professionals, might remove a juror by honestly misinterpreting the juror’s language as proof of misconduct, and thereby substitute his own judgment [*26] in place of the ordinary citizen’s. See Thomas, 116 F.3d at 622 (explaining that a judge faced with ambiguous evidence might wind up taking sides in disputes between jurors on allegations of juror nullification, effectively interfering with, if not usurping, the fact-finding role of the jury). And appellate judges, no less part of that select class, might easily make that same mistake. So we require that only an unambiguous record may withstand reversal.

   * * * *  


Our high standard protect[s] against overly intrusive judicial inquiries into the substance of the jury’s deliberations.  A presiding judge faced with anything but unambiguous evidence that a juror is engaging in misconduct need go no further in his investigation of the alleged misconduct and must not dismiss that juror. Id. With this rule, we protect the twin imperatives of preserving jury secrecy and safeguarding the defendant’s right to a unanimous verdict from an impartial jury.

   * * * *


People talk about religion in different ways. See Webb Keane, Religious Language, 26 Ann. Rev. Anthropology 47, 49, 64 (1997) (“Different religious practices seem to select from among the entire spectrum of linguistic possibilities. . . . Linguistic form alone cannot tell us what people take their words to be doing[ or] where  they believe those words originate.”). And for many [*42] contemporary Americans, to call prayer a conversation with God is more than a metaphor. A recent study by the Pew Research Center found that 74 percent of survey respondents said they try to talk to God or a higher power. Pew Rsch. Ctr., When Americans Say They Believe in God, What Do They Mean? 27 (2018). And about a third as many—28 percent of respondents—said that God or a higher power talks directly to them. Id.

Members of some religious groups are more likely than others to report two-way  communication with God, underscoring that different people are used to thinking and talking about their prayer life in different ways—and that courts may not conclude that their vernacular alone disqualifies them from jury service. “Communicating with God is most common among evangelical Protestants and those in the historically black Protestant tradition, with nearly everyone in both groups saying they talk to God. Six-in-ten people in the historically black Protestant tradition say this communication is a two-way street,” making them the only group with a majority saying so. Id. Among evangelicals, 45 percent of respondents said that God speaks to them directly. Id.

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. The anthropologist T.M. Luhrmann, who filed an amicus brief in support of Brown, recounts that certain American evangelicals speak about [*43] recognizing God’s voice and talk about things God has said. T.M. Luhrmann, When God Talks Back: Understanding the American Evangelical Relationship with God 39 (2012). She explains that “they learn to identify some thoughts as God’s voice, some images as God’s suggestions, some sensations as God’s touch or the response to his nearness, ordinarily, they “still experience those thoughts and images and sensations as if they were their own, generated from within their own minds and bodies.” When believers converse with God in prayer, both their addresses to him and his replies—if any—are “inner mental phenomena.” See also Keane, Religious Language, at 61 (“Words that are framed as reported speech can thereby be portrayed as originating outside the present context . . . [such as] [w]hen Baptists hear the voice of the Spirit in the inward self” and talk about it publicly by “quoting divine speech.”

Religious believers commonly describe God’s guidance less as “an outward voice” than as “an inward whisper, a deep speaking into the heart, an interior knowing.” Richard J. Foster, Sanctuary of the Soul: Journey into Meditative Prayer 11 (2011). Consider, for example, the Reverend Martin Luther King Jr.’s account of “hearing the quiet assurance of an inner voice saying: “Martin Luther, stand up for  righteousness. Stand up for justice. Stand up for truth. And lo, I will be with you. Even until the end of the world.” Martin Luther King, Jr., The [*44] Autobiography of Martin Luther King, Jr. 77–78 (Clayborne Carson ed., 1998). Similar understandings and expressions abound across a variety of religious traditions. See, e.g., Gershom Scholem, On the Kabbalah and Its Symbolism 94 (Ralph Manheim trans., Schocken Books 1996) (1960) (equating the concept of the one God in Jewish mysticism with what is revealed in the fulness of man’s inwardness); M. K. Gandhi, God is Truth 36 (Anand T. Hingorani ed., 1957) (“For me the Voice of God, of Conscience, of Truth or the Inner Voice or the ‘Still Small Voice’ means one and the same thing.”); C. S. Lewis, The Problem of Pain 81 (1944) (stating that God “speaks in our conscience”); Marmaduke Pickthall, The Meaning of the Glorious Koran: An Explanatory Translation 57:3, at 565 (1930) (“He is the First and the Last, and the Outward and the Inward . . . .” (emphasis added)); Swami Vivekananda, The Absolute and Manifestation (1896), in 2 The Complete Works of Swami Vivekananda 130, 141 (14th ed. 1958) (“He is the nearest of the near.”); Thomas à Kempis, The Imitation of Christ 77 (Richard Challoner trans., TAN Books 2013) (c.1418–27) (“I WILL hear what the Lord God will speak in me. . . . Blessed is that soul which heareth the Lord speaking within her . . . . Blessed ears indeed, which hearken to truth itself teaching within . . . .”). And within the Christian tradition, the guidance of the Holy Spirit especially is associated with divine indwelling. See, e.g., 1 Corinthians 3:16 (King James) (“Know ye not that ye are the temple of God, and that the Spirit of God dwelleth in [*45] you?”); Catechism of the Catholic Church ¶¶ 2652, 2681 (describing the Holy Spirit as the “interior Teacher” and the “living water ‘welling up to eternal life’ in the heart that prays”); Martin Luther, Exposition of the Fifty-First Psalm, in 1 Select Works of Martin Luther 51, 153 (Henry Cole trans., London, W. Simpkin & R. Marshall 1826) (“The true Spirit, therefore, dwells in those who believe, not merely as to his gifts, but as to his substance.”)

 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. His statements are not proof that he abandoned his judgment to what he perceived to be oracular signs. And just as a juror may say at the beginning of deliberations that he “thinks” a defendant is “not guilty on all charges,” and perhaps later change his mind, Juror No. 13 could say that the Holy Spirit “told” him the same without violating his oath.

 There is no evidence that Juror No. 13 believed himself unshakably bound to his initial understanding of the Holy Spirit’s guidance, contrary to the district judge’s assumption that Juror No. 13’s religious beliefs compelled him to [*45] disregard the jury instructions. Juror No. 13 may have, for instance, discerned upon further deliberation and review of the evidence, that his preliminary view was mistaken. See Luhrmann, When God Talks Back, at 41 (“These evangelical Christians have to pick out the thoughts that count as God’s and . . . do so in a way that does not violate the realistic demands of the everyday world.”).

Let us not forget that the very object of the jury system is to secure unanimity  by a comparison of views, and by arguments among the jurors themselves. We must guard against the removal of a juror who, in  vernacular commonly used by religious and racial minorities, expresses a view among jurors who may well come to view the holdout not only as  unreasonable, but as unwilling to follow the court’s instructions on the law. And we must take care that judges, who do not speak the language of ordinary people and may not understand or appreciate the way ordinary people live their lives, do not remove a juror solely because his vernacular led the judge to the same conclusion. See Obergefell, 135 S. Ct. at 2629 (Scalia, J., dissenting) (observing the absence of “a single evangelical Christian” on the “select, patrician, highly unrepresentative panel of nine” that is the Supreme Court).

Although the district judge proceeded cautiously, substantial and uncontradicted evidence that Juror No. 13 was in fact deliberating should have alerted the district judge that he might have been excusing Juror No. 13 under the mistaken view that the juror was engaging in impermissible nullification. Juror No. 13 spoke in terms of the evidence in explaining his decision-making process, so “we cannot say that it is beyond doubt that his position  during deliberations was the result of his defiant unwillingness to apply the law, as opposed to his reservations about the sufficiency of the Government’s case. Because the record before us does not unambiguously show that Juror No. 13 was engaging in juror misconduct, the district judge’s dismissal constituted an abuse of discretion and a violation of the Sixth Amendment. 

 Our decision today follows directly from our and our sister circuits’ precedents demanding satisfaction of the highest standard of proof to remove a juror from deliberations. We stress that we do not bless the use of metrics other than the evidence and the law to determine guilt. We do not contravene our [*48] Constitution and allow religious considerations to replace legal ones. But we are not persuaded that Juror No. 13 came even close to doing such a thing. This record establishes more than a substantial possibility that Juror No. 13 did not forsake his oath and instead was fulfilling his duty. 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.

Obviously, with so much in the majority opinion, there were lots for the concurring and dissenting judge to weigh in on.  I won’t go into those because the excerpts above should give readers of some idea of where the judges elaborated or disagreed.