Should Courts Care if a Juror Thinks She Might Burn in Hell?
On September 12, 2019, the United States Court of Appeals for the Fourth Circuit granted habeas corpus relief to William Barnes, who had been previously sentenced to death in North Carolina.1William Leroy Barnes v. Edward Thomas, No. 18-0005 (4th Cir., Sept. 12, 2019). Slip opinion available here (last accessed Sept. 21, 2019). The basis for the court’s ruling was the fact that during deliberations at trial, a juror relied on advice from her pastor and her Bible when attempting to persuade other jurors to vote for Barnes’s death. After reviewing questions about the difficult nature of inquiring into juror behavior, the majority of the appeals court concluded that the juror’s actions undermined the integrity of the verdict.
The Barnes case raises important questions about how a pluralistic and liberal state can accommodate religious motivations for public and political acts. William Barnes and two codefendants were convicted of first-degree murder. During the sentencing phase of the trial, counsel for Barnes’s co-defendants made a closing statement in which he all but declared that capital punishment was counter to the will of the Christian God.2Id. at 3 (“Surely, one among you believes in God, the father, the son, the Holy Ghost, the teachings of Jesus Christ.”) (capitalizations original). One juror, Hollie Jordan, was apparently troubled by the religious claims made the by attorney and sought counsel from the pastor of her church. The next day, she shared his insights with other jurors.3Id. at 13-14. Another juror also testified that Jordan brought her Bible into the jury room and read aloud passages that she found important on the subject of capital punishment.4Id. at 8-9. The jury ultimately recommended the death penalty for Barnes.
In the United States, the jury has long been considered an essential element of democracy and liberty. In part this is because the jury reflects the role of the community in governance and allows for that communal conscience to enter into the justice system. We understand that jurors bring their whole selves into that process; yet, we also want jurors who are impartial, who will render a verdict based on the law, not on personal prejudice, bias, or because someone else told them what to do. Democracies gain legitimacy, in part at least, through citizens’ ability to access each other’s political reasoning, participate with fellow citizens in deliberative political processes on equal grounds, and accept that the reasons offered are not the result of special pleading or arbitrariness.5Cf. Jürgen Habermas, “Religion in the Public Sphere,” 14 European Journal of Philosophy 1, 8-9 (2006).
Using religious reasoning introduces a tension. Religion is a complicated beast that evades clear definition. Numerous overlapping, at times conflicting, definitions of religion try to capture the essence of the disparate phenomena that comprise people’s faith traditions. Some religions make totalizing claims, and their adherents believe, or are taught to believe, that major decisions ought to be informed by the morals and imperatives of the faith. Many devout people act in response to the normative demands of their faith, and they may draw no distinction between how they make decisions at home, church, or in the jury box.
The tension is made manifest in this case. At Barnes’s trial, deliberations involved a back-and-forth not about the legal merits of the case, nor about the evidence adduced, but rather about competing interpretations of Christian scripture and theology. Jurors discussed the question of whether they would “burn in Hell” if they imposed the death penalty.
In this case, at least, the court had a clear solution because the juror tainted the deliberative process by relying on and advocating for fellow jurors to follow her pastor’s advice. This does not resolve the broader tension, though. Short of simply eliminating any religiously-inclined juror,6The Supreme Court, though, does allow, without mandating, striking jurors whose beliefs, of any kind, restrict their ability to impose a lawful punishment. See, Wainwright v. Witt, 469 U.S. 412 (1985). how is a court to react when a juror votes to impose the death penalty relying on the adage that “[w]hoever takes the life of any human being shall be put to death[.]”7Leviticus 24:17 (New American Bible trans.). Or, conversely, when a juror refuses to impose the death penalty because, as a Catholic, she feels bound by Pope Francis’s amendment of the Catechism declaring that “the death penalty is inadmissible …”?8See, Vatican Press Office, “New revision of number 2267 of the Catechism of the Catholic Church on the death penalty – Rescriptum ‘ex Audentia SS.mi” (Aug. 2, 2018), (last accessed Sept. 21, 2019). Morevoer, while capital punishment poses a relatively infrequent, though high-stakes problem, how should courts handle the fact that jurors may be influenced by religious beliefs in other contexts?
For example, the so-called “Billy Graham Rule” followed by certain traditions within evangelical Christianity directs that men should not spend time alone with women who are not their wives. They defend the rule as an appropriate boundary to protect the sanctity of marriage. Others have criticized them for excluding women from opportunities in both business and politics. Would an employment-litigation attorney involved in a sex discrimination lawsuit feel comfortable with a juror who felt the Billy Graham Rule was either reasoanble or even religiously-compelled? Would such a juror feel comfortable reconciling their religious values with the norms of civil rights laws?
Jurors will always bring uncertainty to the system, because they bring the messy realities of human life into the core decision-making of the judicial system. We may recognize – even celebrate – the religious bases underlying public discourse and political decision-making. Jurors bring to their role their identities and contexts. We trust jurors to weigh evidence and evaluate witnesses because of their life experiences in determining if a witness is trustworthy and if a litigant’s story makes sense. And their religious backgrounds are part of this context. This would be no different than the ways education, class, language, even personality inevitably influence the ways jurors do their duty. At the same time, our system only works if the rules are known, are clear, and followed. Rules of evidence and standards of proof cannot be discarded simply because an individual juror disagrees with them, even on religious grounds. Thus, we can insist that jurors adhere to the legal rules and instructions that govern trials, even as we recognize the ways religion shapes them as they implement those instructions.
Undoubtedly, this will not eliminate all religious influence in jury deliberations. So long as religion has purchase in society and we do not remove religious persons from jury pools, it will be inevitable. However, enforcing, as the court did in Barnes, a clear divide between acceptable uses (personal opinion) and unacceptable ones (explicitly religious external influence), we attempt to strike a useful balance. Jurors can draw on their personal beliefs but also discuss and persuade based on the universally available evidence and rules presented to them.
This is an imperfect, but perhaps plausible way to respect that traditional role of the jury as the conscience of the community, allowing equal participation of all persons in that role, but also not subjecting individuals to judicial judgment based on religious reasons they may neither have access to nor share. In this way, too, perhaps the jury can become a model for us of how broader political institutions can incorporate religious believers – imperfectly and ambiguously, much like religion itself functions in our society at large.
Rev. Nathaniel Romano, S.J., an LL.M. candidate at Emory University, is a Roman Catholic priest and a member of the Midwest Province of the Society of Jesus. He holds a J.D. from the University of Wisconsin Law School, an M.A. in Philosophic Resources from Fordham University, and an M.Div. from the Jesuit School of Theology of Santa Clara University in Berkeley. The views and opinions expressed herein are solely those of the author and do not necessarily represent the views or opinions of the Society of Jesus or of any of its provinces or superiors. AMDG.