The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last year, a state judge in Virginia made headlines by removing judicial portraits from his courtroom. The judge reasoned that the portraits depicted white men. Thus, the mere presence of these portraits could deprive non-whites of fair trials.
At the time, I didn't have any intrinsic objections to this decision. Judges have certain inherent powers over their courtrooms, including decor. Rather, I raised a concern. If, in fact, the mere presence of these portraits could render a trial unfair, then defendants convicted in those courtrooms could object to their convictions in those courtrooms.
If Judge Bernhard is correct, could an African-American defendant previously convicted in that courtroom file a motion to set aside his conviction, on the ground that trial was inherently biased?
Thousands of defendants who were convicted in those courtrooms could challenge their convictions. Those arguments could be raised on direct or even on collateral appeal.
Now, the Tennessee Court of Appeals has taken a first step towards that outcome. For more than four decades, juries in Giles County have deliberated in a room named after the United Daughters of the Confederacy. The room is decorated with a Confederate flag and a portrait of Jefferson Davis. A jury that deliberated in that room convicted a black defendant of aggravated assault. The defendant objected that the jury could not hold fair deliberations in that room. The trial court rejected the claim, but the appellate court agreed. Here is a summary of the arguments presented:
The defendant next contends that having the grand and petit juries deliberate "in an inherently prejudicial Confederate Jury Room violated" his constitutional right "to a fair trial, his right to an impartial jury, his right to due process, and right to equal protection of the law," arguing that the jury room utilized in Giles County violates the 14th Amendment's "protection against state-sponsored racial discrimination" and the 6th Amendment's "right to a jury trial"; violates the state and federal constitutional right to trial by "an impartial jury"; violates "evidentiary standards"; "constitutes extraneous prejudicial information and improper outside influence"; and "violates the trial court's duty of judicial impartiality." The State asserts only that the defendant has waived plenary consideration of this issue by failing to challenge the conditions of the jury room prior to trial. In its amicus brief, the Tennessee Association of Criminal Defense Lawyers ("TACDL"), noting that "[m]ultiple courts have recognized the racially hostile and disruptive nature of the Confederate flag," argues that "a jury's exposure to Confederate Icons denies the defendant a fair trial free of extraneous prejudicial information and improper outside influence."
The court ordered that the defendant must be retried.
In consequence, the weight of the evidence adduced at trial does not support a conclusion that the State rebutted the presumption of prejudice created by the jury's exposure to extraneous communication in this case. Because the defendant established that the jury was exposed to extraneous information or improper outside influence and because the State failed to sufficiently rebut the presumption of prejudice, the defendant is entitled to a new trial.
The Court did not decide if Giles County had to remove the Confederate symbols from the room.
The question whether the U.D.C. Room should remain in the Giles County Courthouse and in its current condition is not before this court. It is sufficient that we have concluded that permitting the jury to deliberate in the U.D.C. Room resulted in the jury's being exposed to extraneous information and that the State failed to rebut the presumption of prejudice flowing therefrom.
Presumably, Giles County will take a hint and redecorate. But what next?
Juries have deliberated in this room for more than four decades. Presumably, every black defendant convicted in that courtroom can now object and secure a new trial. The Court did not address this issue. And other courts in the state, and probably throughout the south, may have similar deliberation rooms, or even courtrooms. If these opinions catch on, countless convictions will be vacated. The consequences of this decision would make the fallout of McGirt seem tame.