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Tennessee Court Holds That Black Defendant Did Not Receive A Fair Trial Because Jury Deliberated In Room With Confederate Flag and Portrait of Jefferson Davis

The court did not decide if all jury verdicts from that court are now subject to review.

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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.

NEXT: Today in Supreme Court History: December 5, 1933

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  1. Whatever happens from here, I hope they get rid of that Confederate crap.

    Maybe the citizens of Giles County will learn a little of the truth about the supposed glories of the Confederacy as well. That's a plus.

    1. Oh, you mean Confederate Crap like "Washington" D.C the "Washington" Monument, the state of "Washington" and the Dude on our 1$ Bill? seeing as how he was from a Confederate State, owned Slaves, and was on The Seal of the Confederate States which prominently features the Statue of Washington in the capital square at Richmond.

      1. Virginia was never a "Confederate state" when Washington lived. It was a southern state, and, like many states at the time that never joined the Confederacy later, a slave state, but it wasn't a Confederate state, and, if Washington had been consulted, it probably wouldn't have been.

        1. And Tennessee now? Are they still a Confederate state?

          1. " And Tennessee now? "

            STATES RANKED BY EDUCATIONAL ATTAINMENT
            (52, including Puerto Rico and District of Columbia)

            High school diploma
            Tennessee 38

            College degree
            Tennessee 41

            Graduate degree
            Tennessee 35

            1. Where does D.C. rank, Rev?

              1. I try to avoid performing basic research for poorly educated right-wingers. Even a small step toward self-sufficiency and knowledge could help the ignorant.

                You figure those numbers would make a point that racist Republicans would enjoy, Frank?

                1. Obviously or you'd have produced them.

        2. "It was a southern state, and, like many states at the time that never joined the Confederacy "

          Even Wikipedia admits that the Commonwealth joined the Confederacy.
          "As a Southern slave-holding state, Virginia held the state convention to deal with the secession crisis, and voted against secession on April 4, 1861. Opinion shifted after April 15, when U.S. President Abraham Lincoln called for troops from all states still in the Union to put down the rebellion, following the capture of Fort Sumter. The Virginia convention voted to declare secession from the Union on April 17"
          (It was admitted to the Confederacy on May 7, 1861, the eighth former US state admitted. The capitol of the Confederacy moved to Richmond Virginia in May that year.)

          1. So I guess Cleopatra ruled over a Muslim country, right?

          2. Reading comprehension problem?

      2. That the Confederacy admired Washington doesn't make him a Confederate.

        Here's a clue - he died in 1799, more than sixty years before the Civil War.

        1. Here's a clue. The Confederacy died in 1865, more than twice the time from now as your example.

          You don't get it both ways. Either time matters, or it doesn't.

          1. Huh? You know time is linear right? And operates in only one direction, right?

            So Washington literally can’t be a Confederate because that happened after his death. But people who exist AFTER the confederacy came into being can praise it and influenced by its existence and ideology. Right?

            1. George didn't have to be a Confederate, because the Constitution (which he signed) recognized Slavery, even permitting the Importation of Slaves, I mean umm "Such Persons as any of the states now existing think proper to admit..." until 1808(at a minimum). There were even Slaves in Vermont, doing that strenuous work of collecting Maple Syrup, you know, the jobs Bernie Sanders ancestors were too lazy to do, but that 100 yard dash to Canada made Job Turnover a bee-otch...

              1. It also permitted banning the importation of "such persons"...

          2. But if "the South will rise again," is it really dead?

      3. In his 21 Mar 1861 Cornerstone Speech or Address in Savannah, Georgia, Alexander H. Stephens, Vice President of the Confederate States of America, contrasted the old Constitution of the USA to the new Constitution of the CSA:

        ".... The prevailing ideas entertained by him [Thomas Jefferson] and most of the leading statesmen [the Founding Fathers] at the time of the formation of the old Constitution were, that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally and politically. It was an evil they knew not well how to deal with; but the general opinion of the men of that day was, that, somehow or other, in the order of Providence, the institution [slavery] would be evanescent and pass away. ... Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. ...."

        Stephens gave the speech off the cuff and written versions were from notes by the reporters present.

        CSA VP Stephens declared the Founding Fathers (Jefferson, Washington, et al) as assuming the equality of the races and recognizing the institution of slavery as a perplexing evil they were stuck with.

    2. "Whatever happens from here, I hope they get rid of that Confederate crap."

      Indeed. You can't really explain that decor away as just good old boy Dukes of Hazzard, NASCAR and bass fishing fun and games.

      1. Jefferson Davis Highschool, in Montgomery Alabama, a mere Stone's Throw from where Rosa Parks sat in the Bus (please don't throw Stones) currently is 95% Afro-Amurican (and those 5% of "others" have to be the toughest Mo-Fo's in Amurica) Yay Intergration!

        1. Did anyone ask the students about the name of their school?

          1. Did anyone ask the students about the name of their school?

            You don't suppose they have parents, do you?

    3. This decision has no factual nor logical basis. It is just pro-criminal bias by scumbag lawyer on the bench.

      1. Have you read the decision?

      2. http://www.tncourts.gov/sites/default/files/gilbert_tim-_filed_opn.pdf

        QUOTE from page 1 (summary of 31 pages but it's all there if you want to read it)

        The defendant, Tim Gilbert, appeals his Giles County Circuit Court Jury convictions of aggravated assault, reckless endangerment, unlawful possession of a weapon by a convicted felon, and resisting arrest, challenging the sufficiency of the convicting evidence and the rulings of the trial court permitting the State to amend the indictment and to admit the pretrial statement of a State’s witness as substantive evidence in violation of the rule against hearsay.

        The defendant also argues that permitting both the grand and petit juries to deliberate in a room in the Giles County Courthouse maintained by the United Daughters of the Confederacy (“U.D.C.”) and adorned with various mementos of the Confederacy exposed the jury to extraneous prejudicial information and violated his constitutional rights to a fair trial conducted by an impartial jury, due process, and equal protection under the law.

        The trial court did not err by permitting the State to amend the indictment because the amendment did not allege a new or different offense. The court did err, however, by admitting the challenged witness statement, and that error cannot be classified as harmless.

        Further, we conclude that the Confederate memorabilia in the jury room was extraneous information and that the State failed to rebut the presumption that the petit jury’s exposure to that extraneous information was prejudicial. Accordingly, we reverse the judgments of the trial court and remand the case for a new trial.

  2. Each time I think we have reached peak stupidity, a new day arrives. Do you think anyone in that courtroom ever looked at one of those portraits and thought, "Hey, I'll convict this black guy, not because of the evidence against him, but because of that portrait of a white guy hanging on the wall"? How many people even knew who those were in the portraits? Heck, how many defendants even knew the history of our founding fathers and our nation?

    A better way to handle it would be for the judge to start each court session with a speech on our Constitution and of the rights of defendant's for a fair trial. He could speak of what an amazing country was created so that laws could be applied equally. He could speak of how we have learned from mistakes in our history and vow to not repeat them. But, nope! That would be .........

    .....racist!

    1. Lathering conservative culture war casualties like you, CindyF, appears to be the principal reason this blog exists, and continuing that tradition -- stoking White grievance against the tide of an improving America -- is increasingly evident as what Prof. Volokh saw in Prof. Blackman.

      You are a bigoted, disaffected, obsolete Republican loser, CindyF, and I celebrate the American progress that has sidelined the political preferences of the Volokh Conspirators and their shambling collection of fans.

      Carry on, clingers. Your betters will prescribe how far and how long, as has become the American way.

      P.S. Send your children to South Texas College of Law Houston, CindyF. Please.

      1. So you *do* think that jurors decided to "convict this black guy, not because of the evidence against him, but because of that portrait of a white guy hanging on the wall"? If not, then how does it make sense to call CindyF a "[l]athering conservative culture war casualtie[]" for challenging that proposition?

    2. A good demonstration of how to say "I'm white" without exactly saying "I'm White."

      1. Oooh, that capitalization show how woke you are without actually saying "I'm Woke!".

        1. He's woke.

          You're an irrelevant, half-educated, Republican racist and a roundly bigoted, conservative culture war casualty.

          Everybody has problems.

      2. See, Cindy? There is no such thing as peak stupidity.

        1. Did you find that birth certificate yet, Brett?

          Keep looking, clinger!

    3. You might have some point if the picture of Jefferson Davis was the only thing at issue here, but it was specifically stated that there was a Confederate flag in the room too. I highly doubt anyone in Tennessee old enough to serve on a jury doesn't recognize what that is and it seems very reasonable to conclude that putting a Confederate flag in a non-historical/educational context (e.g., a jury room, which isn't a place people generally go to study American history!) is intended to communicate a political message.

      1. but it was specifically stated that there was a Confederate flag in the room too

        Because convicting someone based on the presence of a flag isn't nearly as stupid as convicting them based on the presence of a portrait?

      2. It probably wasn't the Confederate flag, anyway, because very few people seem to actually know what that flag looked like.

    4. Each time I think we have reached peak stupidity, a new day arrives.

      Decisions like this one aren't just "stupid," they're malicious.
      Do you think George Soros spent millions of dollars to install pro-criminal DAs across the country because he's "stupid"?

      1. Do you think George Soros spent millions of dollars to install pro-criminal DAs across the country because he's "stupid"?

        No

  3. In reality a good defense attorney could probably use those portraits to their advantage as examples of systemic racism that might get them some juror sympathy.

  4. A fair question is why the flag of traitors has ever hung in a government building in the US.

    Daughters of Confederacy are a scourage that has seeked to whitewash a treasonous movement that should never be remembered as anything but an abhorrent, seditious movement against the US.

    1. a treasonous movement that should never be remembered as anything but an abhorrent, seditious movement against the US.

      As opposed to what the Brits remember as an abhorrent, seditious movement that created the US in the first place and we view... somewhat differently. You'd prefer history be fully written by the winners?

      1. And do you think that our founding fathers would have been honored in the UK had they lost?

      2. Are there portraits of Washington, Jefferson, Adams, and others in British courts?

        1. Dunno about actually in the courts, but about 30 seconds shows this statue of Washington is on prominent state-sanctioned display right down the street.

          But I'm also not really sure what that has to do with my comment on rasp's confusion of subjective invective with substantive argument.

        2. There's a statue of the traitor Cromwell right outside the Palace of Westminster.

      3. " You'd prefer history be fully written by the winners?"

        Well, it is often the customary result. Don't like how history is written about you; try winning instead.

    2. weren't really "Traitors" anymore than the founding Fathers were "Traitors" to England, or Ho Chi Minh was to South Vietnam. They merely wanted their independence, and the bigger stronger side won(dammit)

      1. The group most like the CSA are the Taliban that fight to impose barbarism on a population and anyone in Taliban leadership should have understood “winning” was actually “losing”. So the Taliban got very unlucky Ghani was so feckless and the Afghan military was so corrupt because everyone in the territory they controlled in 2020 would be better off had the Taliban used their 2020 position of strength to negotiate a provisional government that satisfied America. So the CSA didn’t actually want to win because winning would mean sharing a long border with a country that hates them and offers easy escape to slaves. So the CSA was using violence to increase their political position to negotiate a better deal with the USA.

      2. Um, the founding fathers were traitors to England. (Ho Chi Minh was not a traitor to South Vietnam for obvious reasons; he wasn't south Vietnamese.)

        And, no, the confederates did not "merely want their independence." They merely wanted to own slaves. And you are very upset that they lost.

        1. I pick my own Cotton, thank you.
          And there were plenty of Slave Owners in those Union Slave States of Missouri, Kentucky, Maryland, and Delaware(ask Sleepy Joe!)
          even General Grant had a Slave to Schlep his gear around...

          1. Got a cite for that bit about Grant?

            1. https://www.whitehousehistory.org/the-formerly-enslaved-household-of-the-grant-family

              U.S. Grant married into a slave holding family. "Grant himself came into ownership of a man named William Jones from his father-in-law at some point during the 1850s. ... On March 29, 1859, U.S. Grant manumitted “my negro man William, sometimes called William Jones, of Mulatto complexion, aged about thirty-five years … being the same slave purchased by me of Frederick Dent.”"

              Grant gave Jones his freedom papers when he could have sold him for $1,000 when Grant was actually hard up for money. Grant did not write a lot of personal memoirs, but Grant supposedly struggled between wanting to emulate his father-in-law yet not feeling totally at ease with slavery himself. However Grant's wife kept a slave, a black woman named Jules, who traveled with the General and his wife; it was commented on with disapproval in 1862 by Chicago Sunday Tribune Magazine. Jules ran away in Kentucky.

              Grant in 1862: “I am sure that I have but one desire in this war and that is to put down the rebellion. I have no hobby of my own with regard to the negro, either to effect his freedom or to continue his bondage.”
              Grant in 1863: “I never was an Abolitionist, not even what could be called anti slavery, but I try to judge farely and honestly and it become patent to my mind early in the rebellion that the North and South could never live at peace with each other except as one nation, and that without slavery.”

              1. "Grant did not write a lot of personal memoirs"

                That's an odd phrasing, given that he wrote two volumes titled ... 'The Personal Memoirs of US Grant' :-).

                Admittedly, much of the books is about his military career, but still...

                (as an aside, for people who have never read them, they are wonderful prose, second IMHO only to Churchill)

                1. The books are more like the military history of US Grant.
                  For personal, inner thoughts of US Grant there are letters.
                  Like most people, his thoughts changed with experience.

          2. That there were Union slave states does not preclude the fact that the Confederate state rebelled because they wished to protect the institution of slavery, even if any efforts to actually abolish slavery would've failed for decades.

          3. "General Grant" didn't have any slaves to schlep anything around. Private citizen Grant owned a slave named William Jones (probably given him by his slaveowning father-in-law, Frederick Dent), but Grant emancipated him in 1860.

        2. The vast majority of Confederates did not own slaves, they were just defending their homeland from invasion.

          The reasons for secession were many and multi-faceted, and generally animated by concerns over Northern nationalism and flouting of the 1787 Constitution.

          1. and some of the Confederates who owned Slaves were Afro-Amurican, and supported the Confederacy...

            1. Keep 'em coming Frank!
              Your killin' me...

              1. "You're", of course.

          2. The vast majority of Confederates were not defending their homeland from invasion, because no such event happened. They were defending slavery. 100% of them.

            The reasons for secession were one: the protection of slavery. Stop lying.

            1. A lot of people did not want to pick sides.
              I know for sure East Tennessee raised more volunteers to fight for the Union than for the Confederacy, simple fact of history
              Most farms were family farms without slaves.
              The terrain did not support plantation style agriculture.
              So it is clear to me many of those who did fight against the Union were not so much fighting for the Confederacy but because their homeland was under siege.

              1. Your first four sentences may be entirely true, but I fail to see how your last sentence follows from it in any way.

            2. The liar here is you.

            3. Virginians were, for the most part, totally fighting to defend their homeland from invasion. Virginia refused to secede when slavery was the only issue on the table, but reversed course when Lincoln called for 75,000 volunteers "to suppress [combinations too powerful to be suppressed by the ordinary course of judicial proceedings]" (meaning, "invade the South"). Of course, by doing so, Virginia set itself up to be invaded itself, which it was the morning after the referendum ratifying the Ordinance of Secession.

              1. Correction: not volunteers, but militiamen.

          3. The vast majority of Confederates dreamed of owning slaves. They fought for a state whose only major difference from the one they were leaving was the permanent enshrinement of slavery in their constitution.

            Every single statement of secession refers to slavery as a primary reason for secession. The Cornerstone Speech, by the CSA's Vice President, calls slavery "the immediate cause of the late rupture and present revolution," and is explicit that the primary failing of the Founding Fathers was that they thought slavery would end sooner or later, rather than being enshrined for all time.

            That is the state for which all Confederates fought.

            1. Note that when he said slavery was "the immediate cause," the word "immediate" means the most recent. In other words, the last in a long line of causes or occasions.

              The particular contention was that those who they had joined with in the Union were not respecting the Constitution on many issues, including slavery, and so there was no reason to expect the agreement was still valid or would be honored, and there was as a need to separate. Yes, there was vile racism but no less than in the North. Lincoln wanted to ship all black persons to Africa and just dump them on the shore. New York slave traders dispatched 170 slave ships to Africa to gather slaves for Cuba from 1859-1861 alone.

              To be clear, all wars are to some degree fought over money and power, and all of the justifications and moralizing and incessantly massaged and carefully propagandized historical narratives are just window dressing. So to some degree there is a very familiar picture, that of a tiny number of very wealthy individuals (in this case the very tiny percentage of large plantation owners) risking war for their own economic interest while the plebs are the ones that bleed and pay for it, while laboring under different notions as well as pure force and necessity.

              "They fought for a state whose only major difference from the one they were leaving was the permanent enshrinement of slavery in their constitution."

              No, the difference was they fought for the state where they lived. The homeland of themselves and their family and kin. Which they understood to be under attack as Lincoln explicitly promised at his inaugural speech. Back then, your homeland, your "country," your duty of loyalty and your patriotism was for your state.

              Regardless, the enshrinement of slavery in the Confederate Constitution was an evil thing. If you subscribe to some sort of moral arc theory of the universe then perhaps that's why they lost. But this was not remotely the only major difference in the CSA's Constitution.

  5. Hang on, your concern is that too many black defendants might get the chance to challenge an unfair conviction? I guess that whole Rittenhouse malarky about better a hundred guilty men going free, etc., is out the window again?

    1. I don’t really know if this decision is good or not in terms of assessing whether a right was violated. But I do know that too many convictions will have to be looked at again is a terrible and pathetic reason to reach a different conclusion. Just awful. People
      might be unfairly imprisoned so let’s keep it that way because it would be too hard to go back and do it fairly is cowardly, lazy, and just plain pathetic. But it’s a staple of the conservative approach to criminal justice, so it’s hardly surprising.

      1. That's a great moral argument, but could you talk about the practicalities some? The generally long delay between arrest and trial are already pretty unfair to innocent defendants (and in the case of guilty defendants, unfair to society if the defendant commits other crimes while out on bail).

        For the sake of argument, if there are currently N trials per year, and we propose to redo 2N past trials, you need to either have 3X the current number of judges/jurors/attorneys to keep to the current degree of delay, or accept vastly longer delays going forward. The first of those seems infeasible and the second doesn't increase the overall fairness to defendants.

        1. One of the practicalities is that there are current humans who beings might be unfairly confined in bad conditions, that include a substantial increase in the risk of medical negligence, assault, rape, and death.

          Administrative burdens pale in comparison to that. It’s infeasible because we choose to make it that way.

          For example, the justice system has no problem calling in far more jurors and having large amounts of resources, including court time, devoted to high profile or capital cases. The amount of jurors called and time/resources spent for a capital case or something like rittenhouse or McMichaels could easily be deployed to do retrials of convicted burglar or drug possessor needs a new trial.

          Oh and btw, They might plead and resentence. Prosecutors and defense and the court could agree to vacate a conviction he repleads to something less and gets a less sentence. Not every reversal actually requires or will result in a new trial.

          1. "One of the practicalities is that there are current humans who beings might be unfairly confined..."

            Indeed so. But this is one of those cases where there doesn't seem to be good solutions, only least bad solutions. You don't seem to be making the argument that your solution is necessarily the least bad one. When the Miranda decision came out, for example, should we have had new trials for every single person previously convicted? After all, none of them had been read a Miranda warning.

            "Administrative burdens pale in comparison to that. It’s infeasible because we choose to make it that way.

            For example, the justice system has no problem calling in far more juror..."

            Can they also call in enough extra highly qualified judges, defense attorneys, and prosecutors?

            1. The State of Florida had to have a lot of retrials after Gideon. They were fine.

              1. Can you elaborate? Gideon of course was retried (and acquitted). But was every person previously convicted sans lawyer retried or freed, nationwide? That's not my memory, albeit I was fairly young at the time. I see a lot of "From that point on, ..." in discussions of the case.

                (but the wiki article says that FL dropped 2000 cases ... I'd be curious to hear what the rule was for who (in the class of people convicted sans lawyer) got a new trial and who didn't. Likewise for Miranda - Miranda and a couple of other defendants got retrials, but I sure don't recall wholesale retrials of every prior confession)

          2. How many people's right to a speedy trial is outweighed by the chance that some person was wrongly convicted in the last four decades because of courtroom decorations?

            1. How many people's right to a speedy trial is outweighed by the chance that some person was wrongly convicted because of:

              1. lack of access to counsel
              2. convicted by a less than unanimous jury
              3. illegally obtained and introduced evidence
              4. failure to turn over exculpatory evidence

              Or, wait for it,....people who are incarcerated due to speedy trial violations.

              Etc. Etc. Etc. This reasoning can be applied to any favorable decision for a criminal defendant that should require re-examination of other similar situations.

              Again, the right at issue isn't really relevant. The issue is that "too many convictions might have to be vacated" is a terrible reason to reach a different result in any case where a criminal defendant's rights are at stake.

              1. No, you are just ignoring that there are more than two considerations (reviewing past convictions and administrative effort).

    2. Hang on, your concern is that too many black defendants might get the chance to challenge an unfair conviction?

      There may have been unfair convictions of black defendants in that jury room, but if there were, the Confederate memorabilia had nothing to do with it.

      1. And we're supposed to take your word for that?

        1. No, but we should take your complete lack of evidence as indicative. You've asserted something without evidence as if the assertion is proof.

          1. So your contention is that people shouldn't be able to challenge the validity of their conviction unless they first prove that they are innocent? And who, pray tell, is going to assess that evidence?

  6. If these opinions catch on, countless convictions will be vacated.

    Finality before justice. Always.

    1. We have found a circumstance in which Prof. Blackman supports stare decisis -- convictions of Black defendants in bigoted southern jurisdictions!

      1. Why the random capitalization, Rev?

        Other than your lack of familiarity with standard English, I mean.

        1. Do you dislike capitalization of Black, like most of our vestigial racists?

          The Volokh Conspiracy invites you to use a vile racial slur to express your dissatisfaction with modern America and its progress, Spinach Chin.

          Thank goodness my children get to compete economically with your children.

  7. Given the current fervor about racism in the system, is it not just as likely that these images caused some jurors to rethink the application of the law in favor of a defendant in the name of reparative justice? That reminding them of the racism that dominated parts of the country needs to be held against the entire planet for all eternity in all aspects of life... even against people who's only connection to the racist past is that they dared have similar genetics to someone who was racist a hundred years ago? Couldn't the state argue that any black defendant that was acquitted recieved that verdict unfairly as there was a reminder towards the jury of their noble duty to right these evils of the past today?

    Seems like the defense and the judges that agreed sort of just made some massive assumptions. But hey... you have to challenge the liberal ideas of equality before the law, constitutionalism, and the entirety of the system somehow in order to create a revolutionary mindset that will lead us to liberation... right?

  8. Before we all succumb to more Blackman hyperventilation, note that the State used a (it turned out) lame waiver defense. The next time a defense attorney tries this the State may take it more seriously and will likely easily prevail.

    1. The next time a defense attorney tries this the State may take it more seriously and will likely easily prevail.

      That might well have been the case had this particular bit of laziness not produced an adverse appellant precedent.

      That said, it's a precedent that may never need to be invoked. It's hard to imagine how the courthouse could continue to allow jury deliberations in that room as is, and since it's used that way because of space constraints, they'll probably just redecorate the room (which may well have been the goal of the appellate panel in the first place).

    2. I'm not following. The waiver argument seems like by far the strongest response. What additional counterargument do you anticipate the state being able to present by "tak[ing] it more seriously"?

  9. Maybe remove referring to criminals by race? Did we really need to see the mugshot of the Waukesha Terrorist? And the race-ist FBI with their Statistics??
    The FBI has released its national crime stats for 2019. Murder was down 0.2%.

    While blacks made up 52.5% of known murder offenders from 1980-2008, their percentage continues to inch upwards, reaching 55.9% in 2019:

    1. This is the blog you have crafted, Volokh Conspirators, and Frank Drackman is the audience you have cultivated.

      I hope every strong law school considers this point when deciding whether to hire any more movement conservatives -- with their "traditional values," "conservative values," "colorblindness," "religious values," and other euphemisms for old-timey intolerance -- for faculty positions.

      1. "This is the blog you have crafted, Volokh Conspirators, and Frank Drackman is the audience you have cultivated."

        Pretty strong stuff, coming from another member of the audience Prof. V has cultivated.

        1. Oh, yeah . . . I am exactly the person Prof. Volokh had in mind when he first thought 'I want to develop a blog that makes my movement conservatism more popular among a broader audience than the Federalist Society-Heritage Society-Olin-Bradley-Scaife-Republican world; counters all of this damned liberal progress, reason, tolerance, modernity, and inclusiveness in modern America; and lets me wear this cool new "libertarian" costume.'

      2. This right here, blame Matt Welch for marketing to racists.

  10. Good lord, appeals courts have repeatedly said that actual innocence is not a sufficient justification for a new trial. But the decorations in the jury room are? Without even needing to provide any evidence of actual bias in the specific case?

    1. Good lord, appeals courts have repeatedly said that actual innocence is not a sufficient justification for a new trial.

      Sort of lowers one's opinion of appeals courts, doesn't it?

      1. Rossami may fill us in with specific instances, but actual innocence is a legal claim that a defendant has to prove (with a very high bar, as you'd imagine -- generally that there has to be new evidence not considered at trial, and no juror would have convicted in light of that evidence).

        So yes, appellate courts find a plethora of actual innocence claims not worthy of a new trial, but I'd be interested to read cases where the court agreed that the defendant had met their burden to show actual innocence but said tough cookies.

      2. A truly depressing amount of legal reasoning is of this type. Courts have allowed that obvious and extremely terrible injustice to occur so it follows that this less obvious and extremely terrible injustice must be allowed also.

        1. In this case we've got an absurdly less obvious and extremely negligible injustice.

        2. I was wondering who would jump in with the "two wrongs don't make a right" strawman. That's not what I'm arguing at all. I'm saying that fixing "obvious and extremely terrible" injustices should be a far, far higher priority than what you call "less obvious" and I call 'not obvious at all'.

      3. "...actual innocence is not a sufficient justification for a new trial."

        Of course it isn't. "Actual innocence" is unknowable. That's why we have trials.

        1. Not always. As I said below, if someone is convicted of murdering a particular person, and the supposed victim walks into court very much alive, then we know 100% that the defendant was innocent.

          1. There's an old lawyer joke based on that.

            Defense lawyer was summing up to the jury in a murder case where there was no body, putting heavy emphasis on reasonable doubt. He told the jurors that the alleged murder victim was going to walk into the courtroom that very minute--"and there he is!"
            They all turned to look. Of course, no one was there, but the defense lawyer said: "See? You looked. There must be some reasonable doubt that my client killed the alleged victim."
            The jury came back with a quick Guilty verdict. In the hallway, the defense lawyer spoke to one of the jurors.
            "How could you find my client guilty of murder beyond a reasonable doubt when you all looked to see if the victim was walking into court?"
            The juror answered: "Sure I looked. But your client didn't."

    2. What exactly is meant by "actual innocence." In most of the cases, it means that some new evidence has come to light, which might exonerate the defendant. Or it might not. IOW, probative but not dispositive.

      The Talmud actually discusses a case where the new evidence is dispositive -- the person whom the accused was convicted of murdering comes to court very much alive.

      Would such a person be entitled to exoneration by an American court? To my knowledge, this has not been addressed.

    3. What are you talking about?

      Insufficient evidence of guilt is definitely a claim that can be pursued on direct appeal. Indeed, the defendant raised such a claim in this very case.

      1. That's not the same thing as actual innocence.

        1. How else would you present a claim of innocence on appeal?

          1. On direct appeal, you can challenge the sufficiency of the evidence. Meaning that the evidence as a whole is not enough to sustain a jury verdict. The standard for that is pretty steep -- the court views the evidence in the light most favorable to the state (or government in the federal system).

            Actual innocence is for collateral attacks. After someone is convicted, new evidence comes to light that, he claims, shows he is innocent. That is an even steeper burden, and is rarely met.

            Remember, on direct appeal, you cannot generally introduce new evidence, you are stuck with the record at the trial court, and any motions you made there. The theory behind that is that an appeals court is supposed to find error in the trial court's rulings. The trial court cannot have erred about evidence it never saw.

            1. Rossani, bernard11, and LawTalkingGuy are complaining that appellate courts are doing something wrong in reviewing defendants' claims of innocence. I'm just trying to figure out what they want to see happen instead.

              1. I’m not doing that? I’m not part of this convo at all. My points were just that:

                1. “Too many convictions will have to be re-examined” is an awful reason to reach a different conclusion in deciding whether a right was abridged no matter the context.

                2. Legal reasoning often involves taking previously extreme injustices as a reason to allow slightly less extreme injustices stand.

              2. Bored's comment sums the problem up nicely. By minimizing the appeals court's mandate to finding error in the trial court's rulings and given that the "trial court cannot have erred about evidence it never saw", the procedural burdens against getting new evidence considered are unjustly high.

                For those wanting examples, look at the multiple stories right here on Reason about the cases chosen by the Innocence Project. More specifically, read the stories behind the cases the IP doesn't take up. Look to the multiple Supreme Court rulings (some majority opinions, many strongly held dissenting opinions that are nonetheless persuasive in the lower courts) that value finality over justice.

          2. New evidence?

            Or discrediting evidence used by the prosecution?

            1. Again, I'm not following.

              You can present new evidence as a basis for a new trial, and appeal that if the motion is denied.

              You can also attack the strength of the prosecution's evidence.

              What else are you looking for appellate courts to do?

              1. For one, I'd like to see some sort of right to a new trial if significant evidence emerges- see, for example, Kevin Strickland's case, which has been in the news lately.

                1. Some states provide for that; others do not.

  11. On the plus side, the presence of this crackpot really helps bring out white supremacists that Volokh has been courting since January 6th.

    And for those of you capable of thought-there is nothing remarkable about this decision. State sanction of racism in trials has brought about many reversals. My favorite being the Idaho prosecutor singing way down south in the land of cotton for her closing in a rape case against a black man

    1. "Dixie" was Lincoln's favorite tune, was he a Race-ist too?(Ok, bad example, what with the "Back to Africa" proposal, limiting the Emancipation to the areas "Still in Rebellion" i.e. not Kentucky, Missouri, Maryland, Delaware(which was a Slave State! Sleepy Joe said so!)

    2. Yeah, if you read the actual opinion instead of Josh’s misleading framing of it, you’d find that (1) a new trial was required anyway for a completely different reason and (2) you get to the conclusion on confederate symbols in the jury room by a rather straightforward application of legal principles and the state’s failure to fully make its case against the new trial. Shoddy lawyering by the state led to the retrial, in other words.

      Not that remarkable, actually, unless you’re trying to prime the culture war pump.

      1. (1) a new trial was required anyway for a completely different reason

        Which makes reaching the jury room point even more unnecessary and self-serving, as the panel itself piously pointed out when considering another ground for new trial:

        Because we have concluded that the defendant is entitled to a new trial based upon the jury’s exposure to extraneous prejudicial information, we need not consider his claims that principles of due process or equal protection entitle him to a new trial. “It is a fundamental rule of judicial restraint” that “a reviewing court will not reach constitutional questions in advance of the necessity of deciding them.” Three Affiliated Tribes of Fort
        Berthold Rsrv. v. Wold Eng’g, P.C., 467 U.S. 138, 157 (1984); see also Burton v. United States, 196 U.S. 283, 295 (1905) (“It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.”).

    3. My favorite being the Idaho prosecutor singing way down south in the land of cotton for her closing in a rape case against a black man

      339 P.3d 1213, for anyone interested.

      Also, yikes.

    4. " white supremacists that Volokh has been courting since January 6th "

      Shhhhhhhh . . . the Conspirators like to think that I am the only one who sees it.

  12. I could go into the political affiliation of those who probably named and decorated that Jury Room, but, it would be a moot point. They just want the evidence gone, so it can't interfere with their current rhetoric. The more I learn here, the more disbelief I have. "Innocents" not being a reason for a new trial, an argument in front of US Supreme Court, that because a decision is wrong, that isn't a reason to remove it and other things. Kind of blows the mind.
    I'll just stick to simple things, like Engineering.

    1. Why the random capitalization, jimc5499?

      Other than your lack of familiarity with standard English, I mean.

      Is it lack-of-virtue-signaling for the other bigoted, bitter clingers?

      1. Somebody else forgot to proofreed their post, Arthur?

        1. You figure the relevant words -- Engineering, Jury Room -- were capitalized by mistake?

          Now do "Innocents," you bigoted right-wing misfit.

  13. Let all the defendants back on the streets. What could possibly go wrong?

    Most of the people of color convicted probably committed crimes against other people of color. I think that the majority of the public, white and black, disapprove of this insanity.

    1. why is it "woke" to say "People of Color" but not "Colored People"?

      1. Ask Prof. Volokh. He is the expert around here on that point.

  14. There are good policy arguments for not having prominent Confederate memorials in jury rooms. But I don’t think having portraits of historical figures violates Due Process.

    Roe v. Wade may be reversed soon. But I don’t think that people on the other side should be able to argue that having a portrait of Ruth Bader Ginsberg or Sonia Sottomeyor in a courtroom renders a trial fundamentally unfair, even in an abortion case.

    1. The appellate court here declined to address any due process issue. The error was exposure of the jury to extraneous prejudicial information, a non-constitutional error.

  15. The Tennessee appelate courts may well have authority to set rules for decoration of courtrooms as part of their authority over judicial procedures. If the judges of the Tennessee Court of Appeals feel strongly about the issue, they might better base their opinion in such authority, if they have it, rather than in the Constitution. I don’t think the constitution covers this issue.

    1. The reversal here was on non-constitutional errors. The court expressly declined to address the Appellant´s due process and equal protection claims.

  16. Of recent events, this is the one Prof. Blackman chose.

    Keep up the good work, Professor. If you are fortunate, perhaps your efforts will help South Texas College Of Law Houston be ranked better than five or six law schools -- rather than the current four -- among the roughly 200 American law schools that are ranked.

    Your dean must be thrilled!

  17. This is a great popcorn thread. It's not surprising that ex-Confederate states would hang these portraits right after the war, or that they would remain there for so long; I am absolutely surprised they are still there, now, so long after the racial sea changes since the 1960s.

    But to call this systemic racism and overturn thousands of verdicts? Someone is showing their woke credentials as backlash to others showing their rebel credentials, and I'm going to have to make a popcorn run, I think.

    1. "It's not surprising that ex-Confederate states would hang these portraits right after the war, or that they would remain there for so long "

      Why do you assert these portraits were hung "right after the war"?

      An August 2021 appellate opinion indicates the relevant room featured these bigoted decorations since the 1930s, and that the racist nature of the room was rededicated in 2005.

      Do you have better information, or were you just offering the unreliable, lame ramblings of an obsolete right-winger?

      1. "2005"? When the Governor of Tennessee was..................

        Philip Norman Bredesen Jr. A member of the Democratic Party,
        he was first elected in 2002 with 50.6% of the vote and reelected in 2006 with 68.6%.

        Friend of yours? Reverend?

        1. Good point, Frank! You are doing a great job of defending Josh Blackman, Eugene Volokh, a couple of other Conspirators, and most of their fans against any concern that they might be right-wing bigots.

          Keep up the good work, Frank! Your betters thank you.

          1. Al Pacino played a better lawyer than you are.

    2. Most confederate monuments and memorials do not date to "right after the war." They date to the late 19th and early 20th centuries — and some much later, to the massive resistance era after Brown.

      And are you really surprised they're still there now? Because, I mean, have you lived in the United States?

    3. Giles County is 96.74% White, 1.51% Black or African American and has about 17,000 residents. I doubt there would have been thousands of criminal convictions of blacks.

      I do however wonder about all the convictions in Mississippi from 1894–2020 when the state flag contained the stars and bars, or Georgia from 1956–2001 for the same reason. As far as I recall these were the only state flags that incorporated the confederate symbol.

      1. " Giles County is 96.74% White, 1.51% Black or African American and has about 17,000 residents. "

        That's Volokh Conspiracy country!

      2. The Current GA flag is the original Confederate flag, don't tell anyone!!

  18. President Biden and his Press Secretary often speak on a platform adorned by an American flag, thereby using it as a symbol of the Biden Administration. Should the American flag be removed from courts where Jan. 6 defendants are tried?

    1. The Tennessee Court of Criminal Appeals addressed in a footnote that the presence of the American flag and the Tennessee State flag in courtrooms is not affected by their decision.

  19. Wow. This is basically the ridiculous "Too many black pastors" argument that failed at the McMichael trial. I guess some folks shift their reasoning when the parameters change.

    1. Um I think there is a pretty significant difference between Black pastors being in a courtroom and the symbols of a regime wholly premised on maintaining and expanding slavery and white supremacy being in a courtroom.

      1. The significant difference being that living, breathing human beings might react to the verdict in ways that intimidate the jury, whereas paintings on the wall -- unless the courtroom is out of a J. K. Rowling novel -- pose no such risk?

        1. Try this analogy:

          "There are too many Rabbis at this trial of a guy accused of murdering a Jewish man" vs. "The jury room has Nazi paraphernalia."

          See how those things are in no way equivalent?

  20. Sounds dumb, but giving defendants a fair trial is a lot more important than culture stuff. Jury deliberations should probably happen in rooms with no images. Or put a blindfolded statue of justice in there to reinforce that the jury is supposed to only consider facts and evidence.

    1. yeah right, what if it's a case in which a woman was blindfolded? Happens.

    2. Jury deliberations should probably happen in rooms with no images.

      Sure. But no matter how pleasantly neutral the walls, the big gaping hole in all this is the current nod-nod-wink-wink "now don't y'all go looking up anything about the case, you hear?" Electronic devices need to be confiscated from voir dire to verdict, or two-bit stuff like this is just a farce.

      1. Um, you know that most juries aren't sequestered, right? Do you plan to confiscate their car radios and their computers and televisions from their homes?

        1. Um, you know that most juries aren't sequestered, right?

          Right, but unfortunately that just sharpens my point about the "you can't tag me while I'm touching base" silliness of this opinion. "Jurors must not be able to access any extraneous information whatsoever... while seated in one very specific location for one brief fraction of the case." Lock 'em down altogether, or stuff like this is just a vector for virtue signaling.

  21. I don't think the appeals court got it completely wrong here. I don't think the display of a portrait or historical flag in a room is going to motivate anyone to say, "hey I'm not sure if this guy is guilty, but seeing that flag there makes me think we ought to still punish him...."

    The larger question though is how can someone get a fair, impartial proceeding in any culture that is heavily biased against their protected class. And in our highly politicized state this is applicable in many situations. The two that come to mind are:
    1. How can any male get any type of fair hearing on a college campus when those vested with the authority to discipline also have undergone extensive indoctrination designed to make them look like an evil oppressor merely because they are the member of a particular inherent class?
    2. How can the January 6th tourists get a fair trial when they have been imported into a system that is outright hostile to them and their politics? The federal government chose to pull those indictments in DC precisely because of this (it could have charged them in the district in which they reside) and the DOJ KNEW that they were going to get the most favorable judges in DC District.

    So yeah I think the court got it somewhat right. Now lets go about applying these principles elsewhere.

    1. "The larger question though is how can someone get a fair, impartial proceeding in any culture that is heavily biased against their protected class."

      Why only "protected"?

      1. That is a manner of fairness that our society has been concerned about for the last 60-70 years, however, I would say that the concept of fundamental fairness does not stop with protected class.

        The main issue though is that the peanut gallery is going to applaud this, but at the same time completely ignore the fact that unfavored political classes are being met with huge amount of bias. In fact, the same peanut gallery usually applauds that type of violence toward people because they agree with it. And that is sad.

  22. If this stands at a higher/highest court, the stakes could be a lot higher than just with new trials for convicted blacks.

    You will have blacks who took a plea argue that they only pled out because they didn't believe they could get a fair trail under these hate filled circumstances.

    Many court have the 10 Commandments either in the courtroom or jury deliberation room While this has been challenged over and over on Separation Church/State grounds, this could open up challenges for new trials under this "inherently prejudicial" doctrine.

    The 10C has two issues:
    A) The threat of damnation - Anyone who beliefs that violates "shalt not have any gods before..." Jehovah would be faced with the direct threat of literally being sent to hell if they don't kiss the ass of Big G. Any religion which practices idolatry and/or polytheism, such as Hindu, would be about to make that argument. Atheists, agnostics, wicca, and most non-Jedeo-Christian belief systems would also be faced with the same threat via "I am the Lord thy God..." bit.

    B) "...shalt not covet they neighbor's wife". Ever wonder why is says that instead of just "be faithful in your your vows" or why it specifically protects the neighbor and not his wife? Pretty much because women were property... special property, worth a specific shout out from all the other goods, but still property. So, the argument would go, how can a bunch of dudes sit around the table with a sexist document that refers to women as, at best, second class citizens and fairly deliberate and convent one?

    Courthouses are full of historical documents, relics, and procedures and it isn't going to be hard to find racist, sexist, or classist roots to a bunch of them.

    Take the US Constitution and its endorsement of slavery by authorizing three-fifths of a votes to each slave in the state as an example.

    How the BLM crowd is trying to de-race words like blackball, blacklist, etc. How long till they tackle the judge's black robes?

    Once you start pulling at this type of historical thread, there is gonna be a ton of shit that is going to unravel.

    1. "Take the US Constitution and its endorsement of slavery by authorizing three-fifths of a votes to each slave in the state as an example."

      Article 1, Section 2, "Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons."

    2. You will have blacks who took a plea argue that they only pled out because they didn't believe they could get a fair trail under these hate filled circumstances.

      Did you somehow get the impression that that's not an extremely common thing in the US?

  23. I thought I had gotten used to Prof. Blackman's shocking laziness. I'm not surprised that he didn't read the opinion before vomiting out this take, but I am surprised that he didn't bother to link to the actual opinion instead of a New York Times article.

    1. I guess if we're keeping score, it probably took you more time to type that gripe than it would have taken you to post a link yourself.

  24. I don't see decades of cases being undone. If there was no objection convictions should be reviewed only for plain error on direct appeal. On a motion for a new trial (if that's the term they use down South) the defendant would need to excuse failing to raise the issue earlier.

    1. Thanks, that's interesting.

      How did that work for the few cases associated with Miranda or the thousands of cases wikipedia says Florida dropped after Gideon? Is it that PersonX makes a novel argument (an atty wasn't provided, or notice of right to remain silent not given) and while PersonX's case winds its way up the appellate ladder enterprising defense attorneys make the same claim, just in case the case eventually finds the new right, and people whose attorneys weren't on the ball enough to raise the objection are SOL?

  25. Non-snark question from a non-lawyer:

    When the SC announced the Miranda rule, I assume it only applied to Miranda's case and going forward. They didn't reverse all previous convictions.

    Doesn't the same apply here? Unless it was specifically declared retroactive, doesn't it only apply to this one and going forward, and maybe to a few other cases that are still within the time limit to file an appeal?

    If I'm right isn't Prof. Blackman's concern misplaced? They just remove the paraphernalia and do this one over.

    1. When there's a new rule of criminal procedure (like "you can't interrogate an arrestee without Miranda warnings" or "you can't convict someone with a non-unanimous verdict), you generally don't get to apply that rule to convictions that are already final.

      But it's not clear to me that this case did announce a new rule (like, you can't hang confederate flags in the jury room). Rather, it seems like the court is applying existing rules to the facts of this case to conclude that a new trial is warranted (though as noted elsewhere, they'd already decided that should be the result for a different reason).

      I don't know how Tennessee law addresses collateral review of criminal convictions, but I'd imagine it's highly likely that there are other procedural bars in place that would make it difficult for most previously-convicted defendants to make out a claim.

      1. The Post-Conviction Procedures Act in Tennessee considers constitutional infirmities only. The Court of Criminal Appeals here reversed on non-constitutional grounds. https://www.tncourts.gov/sites/default/files/gilbert_tim-_filed_opn.pdf A collateral attack filed more than one year after a conviction becomes final is time barred. The burden is on a post-conviction petitioner to show prejudice by clear and convincing evidence.

  26. We had a situation in MA where a technician in a crime lab,Annie Dookhan, was found to have falsified evidence in drug cases.

    As a result,

    In May 2015, the Massachusetts Supreme Judicial Court ruled that defendants whose convictions on drug charges were based on evidence potentially tainted by Dookhan can pursue retrials without having to face more charges or tougher sentences. However they would need a retrial to be released.

    On April 18, 2017, Massachusetts dropped more than 21,000 low-level drug criminal charges involving Dookhan. Out of the 15,570 cases in which she was involved, only 117 will be pursued, according to Daniel Conley, the district attorney in Suffolk County, which includes Boston. Other counties followed suit, taking direction from the state Supreme Court to select a small fraction of cases for re-prosecution.

  27. Professor Blackman´s kvetching is off base. For one thing, the decision is not that of the Tennessee Court of Appeals; it is of the Tennessee Court of Criminal Appeals, a separate tribunal. Professor Blackman conspicuously fails to mention that the appellate court found other reversible error a well, related to admission of a witness´s out of court statement to police. https://www.tncourts.gov/sites/default/files/gilbert_tim-_filed_opn.pdf

    Blackman cavils:

    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.

    Not so. Tennessee´s Post-Conviction Procedures Act considers constitutional infirmities only. The Court of Criminal Appeals here reversed on non-constitutional grounds. The court expressly declined to reach the Appellant´s due process and equal protection claims. A post-conviction petition filed more than one year after a conviction becomes final is time barred. The burden is on a post-conviction petitioner to show prejudice by clear and convincing evidence.

    Blackman´s failure to link to the appellate court opinion here is telling.

    1. A post-conviction petitioner would also have to show why the issue is not waived for failure to present it on direct appeal from the judgment of conviction.

    2. Once again, if this is representative of how Blackmun teaches law, I feel sorry for his students.

      1. Once again, attending South Texas College Of Law Houston is a largely self-inflicted wound. The relevant information has been published widely and for some time.

        What is curious is that Prof. Volokh dipped down so far to select his protege. The Conspiracy focused on professors from reputable schools before choosing Prof. Blackman. There must have been something particularly attractive to Prof. Volokh about Prof. Blackman -- perhaps even something reflected by this very post.

        Know what I mean?

        1. Josh comes to the VC by way of hanging off of Randy Barnett's coattails, after their ultimately futile attempt to re-invent the Commerce Clause in NFIB. It looks like Josh also pitched to do yeoman's work with the today in Supreme Court history series; I seem to recall he used to do the case round-ups, too?

          Anyway, I hope that the other Conspirators have tried to convince Josh to think a little more and post a little less, lest he completely dominate the page. I imagine that more intermittent but quality posters like Ilya, Orin, Dale, and Will will find less reason to post here, if their posts consistently get pushed off the "most recent" list so quickly; ditto with David, if for his own rather odd reasons (he is more of a polemicist, himself, so needs that juicy eyeball exposure).

          1. " Anyway, I hope that the other Conspirators have tried to convince Josh to think a little more and post a little less, "

            Don't change, Prof. Blackman!

          2. "lest he completely dominate the page"

            That ship has sailed.

            1. Ignore these nattering nabobs of negativism. Don't change, Professor Blackman -- stay just the way you are!

    3. The Court of Criminal Appeals here reversed on non-constitutional grounds.

      That's an interesting take, given that the "extraneous prejudicial information" section where they (redundantly) find the need for a new trial opens like this:

      “Both the United States and Tennessee Constitutions guarantee criminal defendants the right to a trial by an ‘impartial jury.’”

      1. The appellate court expressly declined to reach the Appellant´s due process and equal protection claims.

        1. Indeed. But as mentioned several times in the opinion and further reflected in the language I quoted above, he made three constitutional claims: the right to an impartial jury, due process, and equal protection. The court decided the one we've been discussing all day, and declined to reach the other two.

          1. The appellate court´s analysis focused on Rule 606 of the
            Tennessee Rules of Evidence. https://www.tncourts.gov/rules/rules-evidence/606 The court did not find that the jury were not impartial, only that extraneous prejudicial information within the meaning of Tenn.R.Evid. 606(b) had been present and the State failed to rebut the resulting presumption of prejudice. I am confident that this case does not create a rule that would be cognizable in a collateral attack on a final judgment of conviction.

            1. Yeah, this is the same sort of shadow puppetry the panel used to reach the jury room issue in the first place after having already ordered a new trial on other grounds. That section of the opinion opens with the constitutional language I quoted above -- were it not a constitutional claim, they certainly would have had no need to lead with that. And sure enough, the following sentences then explain that one way to compromise the impartiality of the jury is to expose the jury to extraneous prejudicial information, and the rest of the section performs an extensive factual analysis under that framework. The conclusion was that the jury had been exposed to extraneous prejudicial information; ergo, the jury was not impartial as constitutionally required.

              Of course the panel didn't write that last bit in so many words since they needed some sort of fig leaf to try to distinguish why they reached this claim but not the other constitutional claims. But artful drafting in the opinion (and I'm being somewhat generous) doesn't change the nature of the claim.

  28. So no presidential portraits in courtrooms, because a republican cant be fairly tried during a democratic administration, and vice versa?

    1. Oh fer crying out loud. To equate membership in a political party with institutionalized slavery is one of the stupidest arguments I've ever heard. The Confederacy was created to protect the right of Southern states to deny all rights to all Black people, including the right to be on any jury. To even suggest that being a member of political party automatically means that you must be judged by members of that same party is ludicrous. Juries need to reflect the composition of a society as a whole, sans the folks that have already determined that because a person is Black [or any other immutable trait or religion as you wish], that person must be guilty.

      On the other hand, that might be a great way to correct some of the racism baked into the judicial system. Any member of The Black Panther Party must be judged only by members of such party.

  29. My guess is that few if any more convicts will be released on this ground. "The defendant objected that the jury could not hold fair deliberations in that room. The trial court rejected the claim . . . ." Other defendants who were convicted after deliberations in that (or a similar) room likely didn't have defense attorneys savvy enough to make that objection, and to take a timely appeal on that ground.
    Still, how stupid or insensitive do you have to be to designate a room named for the Confederacy, and decorated with the portrait of the President of the Confederacy, to hold jury deliberations in a criminal prosecution of a Black defendant? I now live in the South, and my observation is that Black-White relations here are better than in the North where I grew up and spent most of my life. But use some common sense.

    1. " Still, how stupid or insensitive do you have to be to designate a room named for the Confederacy, and decorated with the portrait of the President of the Confederacy, to hold jury deliberations in a criminal prosecution of a Black defendant? "

      You just have to be a standard issue Republican these days.

      1. about as Stupid as the Peoples of (West) Virginia naming a Courthouse after Senator Robert KKK Bird(D)
        https://www.wvsd.uscourts.gov/content/charleston

  30. To those insisting the Confederate decor didn't impede a fair trial, how about if the trial judge, in fully view of the jury, presided in a KKK robe and hood? Assume for the sake of argument that aside from his attire the judge was scrupulously unbiased. Fair trial?

    1. How about a kangaroo suit?

  31. Presumably, every black defendant convicted in that courtroom can now object and secure a new trial.

    You could presume that. Or you could cite us to an applicable rule of criminal procedure or post-conviction that would permit such a challenge to be raised, (1) for the first time, (2) on collateral review, (3) with no time limit.

    Such a rule/law would certainly be a curious and unusual thing for you to highlight for your readers.

    And other courts in the state, and probably throughout the south, may have similar deliberation rooms, or even courtrooms.

    [Insert GIF of the character Chidi from "The Good Place" saying "Okay. But that's worse. \ You do get how that's worse, right?"]

  32. The professor's remarks at the end deserve a response. Of course, every black defendant should be able to object. The effects of slavery are everywhere in today's justice system; to say otherwise is delusional. It shocks my conscience that government facilities still display the Confederate flag. The Stars and Bars represent institutionalized slavery, making human being worth no more than cattle. The judicial system is blatantly racist and needs an entire overhaul. If this is where it starts, so be it.

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