“Never let the facts get in the way of a good narrative.” – Leftist Journalism 101
Judge William H. Pryor Jr. of the U.S. Court of Appeals for the 11th Circuit is, you see, a conservative man. In what was still a relatively rare move, at the time, Senate Democrats filibustered the judicial nomination of the then-Alabama attorney general due to their belief that Pryor was a devil-may-care extremist. In 2004, President George W. Bush first installed Pryor on the bench via recess appointment. During an at-times heated eventual Senate Judiciary Committee confirmation hearing, the avowedly pro-life Pryor had these remarkable exchanges with Sens. Chuck Schumer (D-NY) and Arlen Specter (R-PA):
Schumer: Now, you have said on occasion, on several occasions, that Roe v. Wade is “the worst abomination in the history of constitutional law.” Do you believe that as of right now?
Pryor: I do.
Schumer: I appreciate your candor, I really do. …
Specter: “In the 1992 case of Planned Parenthood v. Casey, the Court preserved the worst abomination of constitutional law [Roe] in our history.” Is that an accurate quotation of yours?
Specter: Is that [comment] one which would fall into the category that Senator [Orrin] Hatch has commented on, you wish you had not made?
Pryor: No, I stand by that comment.
Specter: Why do you consider it an abomination, Attorney General Pryor?
Pryor: Well, I believe that not only is the case unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children. That’s my personal belief.
Since joining the federal judiciary, Pryor — on issues ranging from criminal sentencing to habeas corpus to due process to the role of religion in public life — has indeed been a consistent voice for an originalist, conservative jurisprudence. He was publicly floated as a leading contender for the Supreme Court vacancy left by the late Justice Antonin Scalia, which was ultimately filled by now-Justice Neil Gorsuch. Alas, that was a botched opportunity for those of us staunchly pro-life and traditional law-and-order conservatives with no small degree of skepticism for the genre of libertarian-infused originalism sometimes peddled by Gorsuch.
Regardless, the Left has never forgiven Pryor for his steadfast refusal to bend the knee at the altar of the progressive golden calf. He has repeatedly found himself, over the years, in the crosshairs of what Andrew Breitbart famously called the “Democrat-Media Complex.” Which brings us to the recent 11th Circuit case of U.S. v. Brown.
If you believe the findings of the trial court, former U.S. Congresswoman Corrine Brown of Florida is about as corrupt as an elected Democrat can come. Brown, who served in Congress for 24 years, was ultimately convicted in May 2017 on 20 federal corruption charges, ranging from mail fraud to filing false tax return documentation. In December 2017, she was sentenced to five years in federal penitentiary and ordered to pay restitution.
And now, just last week, her federal appeal in the 11th Circuit was denied — over the dissent, perhaps curiously at first blush, of Judge Pryor. For having the temerity to opine that an allegedly deeply venal Democrat is rightfully “entitle[d] to a new trial,” Pryor was excoriated at Slate yesterday by longstanding leftist legal blogger Andrew Cohen.
It is important to understand why Cohen’s risible smear does not even pass the smell test.
Brown’s trial featured a peculiar twist. One prospective juror, to whom the dueling 11th Circuit opinions only refer as “Juror 13,” appears to have been a devout Christian. For the trial court, this was problematic. Here is how Matthew Franck accurately summarizes the crux of the legally relevant issue at National Review’s “Bench Memos” blog:
After an eight-day trial, the jury was given its instructions by the court; at the end of the second day of its deliberations one juror (Juror 8) relayed her concern to the judge that another juror (Juror 13) had spoken of being guided by a “higher being” in reaching the conclusion that Brown should be acquitted on all counts.
Summoned to meet with the judge and counsel in the case, Juror 13 was questioned about what he had said, and about his ability to participate in deciding the case according to the evidence and testimony. After two probing — but often somewhat opaque — interviews, the judge decided to excuse the juror (and seat an alternate in his place), ruling that it was “beyond a reasonable doubt” that he could not be trusted to abide by his juror’s oath to do impartial justice according to the evidence.
Specifically, Juror 13’s purportedly disqualifying sin was saying, at some point during juror deliberations, “something to the effect of ‘the Holy Spirit told me that Corrine Brown was not guilty on all charges.'”
Cohen, mocking Pryor’s “long, rambling dissent,” cavalierly asserts that “[t]he problem with Juror 13 wasn’t just that he believed he was being directed by God to render a decidedly secular verdict. The problem also was that he evidently did not understand that to say so, to believe so, would undermine his ability to abide by the judge’s instructions and evaluate Brown’s guilt or innocence based solely on the evidence in court.”
This is a disingenuous and willful distortion of the record in this case.
Pryor’s dissent, spanning 65 pages, painstakingly produces large chunks of the trial court record in order to demonstrate that Juror 13 did not do precisely what Cohen accuses him of having done. The 11th Circuit’s legal standard for dismissing a deliberating juror is the high threshold of “beyond reasonable doubt,” and as Pryor writes, “[i]f this devout juror’s religious language alone proved his misconduct ‘beyond reasonable doubt,’ … then the phrase ‘reasonable doubt’ has changed its meaning.”
Pryor’s dissent is a tour de force, devoting pages to citations of religious texts from manifold faiths in order to demonstrate that “every prayer implies a hope that the prayer be answered.” Every juror takes a solemn oath, after all, and it is undisputed that the taking of such an oath — “an ancient tradition of ensuring honesty by invoking supernatural sanction on those who swear a false oath” — necessarily means that jurors are allowed to pray for guidance that they reach the correct outcome. And “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 that they have received it.”
As with so many others facets of our legal and constitutional order that leftists routinely obfuscate and bastardize, the legal principles in play here are really not that complicated. In fact, Pryor expressly and unambiguously disavows the very line of argumentation that Cohen recklessly imputes to him (some internal citations omitted and emphasis bolded):
[A] juror who refuses or is unable to apply the law to the evidence for a spiritual reason is no less subject to dismissal than a juror who does the same thing for a secular reason. When it is apparent beyond a reasonable doubt that “‘religious inspiration’ prevent[s] [a] juror from considering the evidence at all,” United States v. Salvador, 740 F.2d 752, 755 (9th Cir. 1984), that juror may be dismissed, just like a juror who refuses to deliberate for any other reason. And when it is apparent beyond a reasonable doubt that a juror has “abandon[ed] his or her judgment [about the evidence] to what he or she perceives to be oracular signs,” that juror may be dismissed, just like a juror who decides to base her vote on any other nonevidential event, like the weather or the outcome of a coin flip.
On the other hand, “[a]s long as the object of [a religious juror’s] prayers is an honest attempt to discern the facts from the evidence and to apply the law to those facts, the prayerful meditations of such a juror are no less valid a form of deliberation than any other.”
The Founders would have been positively aghast at the notion that this could somehow be controversial. That it is deemed controversial, in the year 2020, says everything one needs to know about the insidious secularization of contemporary society.
In short, there was nothing in a careful review of the trial court record to demonstrate that Juror 13 was incapable of assessing the evidence presented at trial. On the contrary, Juror 13 “told the district court time and time again that he was basing his decision on the evidence,” and only believed that the Holy Spirit spoke to him in the context of answering his prayers for guidance in reaching the right outcome after adducing the evidence. Those would be the same prayers for guidance that must be viewed in the context of Juror 13’s having sworn an oath, just like all his fellow jurors, to “truly try the case now before this court and render a true verdict, according to the law, evidence, and instructions of this court, so help [him] God.”
Secularists may not care for such niceties, but the reality is that, as constitutional law scholar Michael Stokes Paulsen has been fond of noting over the years, the Founding generation viewed the solemnity of oaths quite seriously. In fact, as I note in my current Federalist Society lecture on the constitutionality (or lack thereof) of stare decisis in constitutional interpretation, the gravity of the judicial oath helped undergird Chief Justice John Marshall’s iconic ruling in the landmark 1803 Marbury v. Madison decision:
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! …
Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? If it is closed upon him and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.
The reality is that those like Cohen — those who would fearmonger and alienate by putting “religious freedom” in scare-quotes — reek with dripping condescension for religious Americans. Cohen, a lawyer himself, is part of the “culture of legal discourse” that Pryor rightly describes as one that “often struggles to understand religious practice or to take religious perspectives seriously.” Cohen and his ilk, part of our most supercilious bicoastal ruling class clerisy, simply despise the rubes and yokels of flyover country. They despise the forgotten Americans of the heartland. And they despise those members of “our credentialed judicial elite,” such as Pryor himself, who adamantly stand for those same forgotten Americans.
This is the narrative that motivates Andrew Cohen. And he will not allow such stubborn things as facts to get in the way of his preferred narrative.