Decolonizing the Jury Room?
Jury Deliberations and Confederate Memory
I. Introduction.
Ostensibly neutral standards and policies in the legal system can serve to ensure perpetuation of inequality, and critics must seek to expose the true effects of what lies underneath the surface. Yet sometimes the problems lie right on the surface, blatantly in view. A recent example has been examined in the legal context in the town of Pulaski, in Giles County, Tennessee. There, for many decades, jurors have deliberated the guilt or innocence of the accused, including Black defendants, in a room that is itself a memorial to the Confederacy -- an entity dedicated to the idea that Blacks can and should be owned as property by whites. That room is adorned with a portrait of Jefferson Davis and decorated with two flags of the Confederacy.
In any criminal jury trial, after hearing the evidence in the courtroom, the twelve jurors convene in a private deliberation room to discuss the case and to reach, if possible, a unanimous decision as to whether the defendant is guilty or not. In criminal cases in Giles County -- which was, perhaps not coincidentally, the birthplace of the Ku Klux Klan -- this room was the United Daughters of the Confederacy room.
Entrance to the Jury Deliberation Room
The door to the Giles County jury deliberation room reads “U.D.C. Room.” The “stars and bars” Confederate Battle Flag is painted on the door itself. Inside the room, along with a table and chairs for purposes of deliberation, there is a framed portrait of Jefferson Davis, president of the Confederate States of America, and a portrait of Confederate General John Brown. Greeting the jurors after they enter this room is the third official flag of the Confederate States of America, “The Blood Stained Banner,” which contains the well-known and often displayed battle flag of the rebel Army of Northern Virginia.
No memorabilia or pictures regarding any Union generals or soldiers or Presidents of the United States; the American flag is not even displayed.
Deliberation Room: Table and chairs for jurors; Portraits of Davis and Brown in far corner
After a trial in which his Black client was convicted by a jury of aggravated assault and resisting arrest (an arrest that was made by a white police officer), and sentenced to a term of six years of imprisonment, attorney Evan Baddour demanded a new trial for his client based on a violation of his right to be tried before an unbiased jury. The trial court denied any relief, but as will be discussed in detail below, the Tennessee Court of Criminal Appeals, in a noteworthy opinion, vacated the conviction.[i]
II. Early 20th Century Memorials and the Role of the U.D.C.
A. Introduction.
Memorials operate on multiple levels, including their relationship to the event or person being memorialized; to the time and place of their construction; and to the community that observes or uses the memorial. This case provides an object lesson in the ways in which the Confederate memorials that are defended as a neutral way of remembering and honoring heritage are in fact anything but neutral: they must be understood as having arisen as the result of post-war decisions seeking to shape memory, as having been exploited for intentional purposes of oppression and white supremacy, and as continuing to send powerful messages of exclusion.
B. Historical Overview.
Memorials are not inevitable consequences of historic events. Indeed, when dealing with Confederate memorials, there is almost always a chronological gap: contrary to the belief of many people, the vast majority of extant memorials were not erected in the immediate aftermath of the Civil War, and did not arise out of a simple need to remember recent events or to honor still-living individuals. Rather, they were built decades later, primarily between 1900 and 1920, and then again between 1954 and 1970, as part of renewed white resistance to Black civil rights.[ii] They filled not a purely informative or nostalgic role but rather served to support positions in those much-later conflicts.[iii] Monuments such as these exist not out of happenstance or historical pedantry, but rather, as Eric Foner recently explained, as “an expression of power”[iv] – and of the effort to retain that power.
Historians have explored the first spike in Confederate memorials, which came between 1900 and the 1920s. This crucial period saw the revival of the Ku Klux Klan, the spread of the myth of the Lost Cause, and the dramatic re-segregation that erased the effects of post-war Reconstruction.[v] The laundering of history through monuments during this time period served to legitimate structures of repression. These memorials “were part of a campaign to paint the Southern cause in the Civil War as just and slavery as a benevolent institution, and their installation came against a backdrop of Jim Crow violence and oppression of African Americans.”[vi] The duality of these structures – looking backward to influence the present and future – has been apparent from the beginning. When the “Silent Sam” Confederate Memorial was erected at the University of North Carolina in 1913 (it was taken down by activists in 2018), one of the dedicators claimed that Confederate veterans had “saved the very life of the Anglo Saxon race in the South” and, as an example of this “saving,” he described publicly whipping a Black woman.[vii]
C. The Role of the United Daughters of the Confederacy.
The erection of memorials in the early 1900s was widespread. One recent study identified over 600 Confederate monuments in public squares and courthouses that were erected prior to 1950. The United Daughters of the Confederacy, founded in 1894, was at the vanguard of these memorialization efforts. As a key part of its efforts to shape historical memory, the United Daughters of the Confederacy erected over seven hundred monuments across the South on public land, including nearly two hundred on the grounds of courthouses.[viii]
The U.D.C.’s involvement in memorialization grew out of its organizational values. The U.D.C. held profoundly racist views, and made little effort to keep those hidden.[ix] Indeed, since the 1920’s, the U.D.C. has distributed the “Catechism on the History of the Confederate States of America,” for the use of children in learning about Confederate history.[x] The 1920 version of the Catechism set out a clear Lost Cause explanation of the War: “[I]t was not slavery, but the vindictive, intemperate anti-slavery movement that was at the bottom of all the troubles.” It also explained the organization’s view of Blacks and their supposedly-positive treatment by Southerners: “The Southerners took the negro as a barbarian and cannibal, civilized him, supported him, clothed him, and turned him out a devout Christian.”
The pervasive efforts of the U.D.C., combined with other propaganda efforts, served to plant a story of a benign antebellum South. Yet this backward-looking story had twisted consequences for the present and the future, implicitly supporting economic repression, nearly-complete disenfranchisement, and judicial and extra-judicial lynchings. A recently published study reveals that Confederate memorials and lynchings have long gone hand-in-hand, finding that those Southern counties that have erected monuments to the “Lost Cause” have a statistically higher rate of lynchings than those that have refrained.[xi] The monuments constructed by the U.D.C. “served as physical embodiments of the terror campaign directed at Black communities.”[xii] And their efforts, embedding physical symbols of the Lost Cause mythology on highly-visible public land against a backdrop of murderous suppression, were a spectacular success. As one historian has provocatively summarized the work of the U.D.C.: “[T]hey did … what their fathers, brothers, and husbands failed to do during the Civil War: they won the war for the South.”[xiii] Somehow the loser of the War has planted its memories, and its values, into the fabric of civil society.
D. The U.D.C. and the Klan.
The U.D.C. was also intertwined in many ways with the Ku Klux Klan.[xiv] One former member has called it the “de facto women’s auxiliary of the KKK at the turn of the century.”[xv] This connection is especially pertinent with respect to the Giles County courthouse. Pulaski, the county seat of Giles County, is infamous as the founding place of the Ku Klux Klan in late 1865.[xvi] In 1917, two years after the release of Birth of a Nation, and likely a few years before the Giles County U.D.C. created their shrine to the Confederacy in the courthouse, the U.D.C. erected a plaque in downtown Pulaski honoring the founding the Ku Klux Klan.[xvii] That plaque was on an office building across the square from the courthouse. Indeed, the KKK plaque can be seen from the U.D.C. Room in the Giles County Courthouse.[xviii] The physical and ideological connection between the U.D.C. and the Klan in Giles County, incorporated in these twin memorials, is unavoidable.
In sum, the U.D.C. Room is not just an interesting collection of memorabilia that happens to be piled into an extra room in the county courthouse. It is there for a precise reason: as part of a concerted nation-wide effort to spread an ahistorical myth of the Civil War, particularly including a view that Blacks benefited from slavery and that society was harmed by post-war outside efforts to redress inequality, a myth which was promulgated alongside acts of racial terror. As one historian has written: “[A memorial that] stand[s] outside the door of a courthouse [will] send a clear message to all who enter about what the justice system values, and which side it will take.”[xix] How much more true it is when the memorial is not merely outside the courthouse but rather inside it, integral to the most consequential part of a criminal trial.
V. Legal Challenge and Ruling of the Court of Criminal Appeals.
Our criminal justice system relies heavily on the role of jurors, and erects boundaries to examining exactly how those jurors reached their decision. It has been accepted, for better or worse, that what goes on in the jury deliberation room cannot ordinarily form the basis for a challenge to a conviction. Even if the jurors understand the law, or react out of ignorance or misguided emotion, a jury verdict cannot be challenged as improper.
One exception to this principle is that the system does take action when outside information relating to the case taints the jury. A conviction can be vacated if a party learns that the jury was exposed to so-called “extraneous evidence.” Textbook examples of “extraneous evidence” would be a juror bringing a newspaper into the juror room and sharing an article with other jurors about the case in front of them (particularly, when that article might have additional or different facts than were presented at trial), or a juror driving to the scene of a crime to learn information on his own and then reporting back to the other jurors. The theory is that such information is categorically different than regular evidence at trial because it is not subject to the adversarial testing in the courtroom -- the defendant does not even know that the jurors have read the newspaper, or have visited the scene, and thus does not have any opportunity to challenge the information learned by the jurors.
In the case at hand, the defendant appealed to the Tennessee Court of Criminal Appeals, the intermediate appellate court in the state. In a noteworthy opinion relying on the concept of extraneous evidence, a three-judge panel of that Court found a violation requiring a new trial. After reviewing a number of the statements made by the State in seceding from the Union, it summarized the principles animating the Confederacy:
These documents establish that slavery and the subjugation of black people are inextricably intertwined with the Confederacy and the symbols thereof. Such ideals, however, are antithetical to the American system of jurisprudence and cannot be tolerated. “[D]iscrimination on the basis of race, ‘odious in all aspects, is especially pernicious in the administration of justice.’ ” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017) (quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)).
State v. Timothy Gilbert, No. M2020-01241-CCA-R3-CD, 2021 WL 5755018, at *16 (Tenn. Crim. App. Dec. 3, 2021), appeal denied, not for citation (May 18, 2022).[xx]
The Court’s legal analysis brought together the doctrine of extraneous evidence with that of “government speech.” It characterized the display of the memorabilia as being endorsement by the Government:
Nevertheless, when a government creates or permits the creation of a permanent display by a private organization, it has engaged in government speech…. “An observer need not be ‘obtuse’ to presume that an unattended display on government land in a place of prominence in ... a government building either belongs to the government, represents government speech, or enjoys its location because of government endorsement of its message.”…
It also noted that a message from the Government is afforded special significance: “Any communication perceived to originate from the court in its official capacity will ‘carry great weight in the eyes of the jury’.” In so arguing, the Court acknowledged that some people might find the flag to be innocuous. It said, though, that that did not matter, as even sending an arguably-ambiguous message to the jury, particularly one from the government, could serve to distort the judicial process.
The Court largely did not shy away from the racial aspects of the message. It wrote: “The specter of racial prejudice that might be ascribed to the flag in the U.D.C. room is particularly troublesome given that ‘the jury is to be a criminal defendant's fundamental protection of life and liberty against race or color prejudice’.” It thus held that this constituted extraneous evidence under the legal test:
Thus, although the government may choose to convey any message that it wants to the general public, it may not convey any message at all to the jurors in a criminal trial. Because Giles County may not convey any message to the jury, we conclude that permitting the jury to deliberate in a room filled with Confederate memorabilia exposed the jury to extraneous information or improper outside influence.
Consequently, the Court vacated the defendant’s conviction and granted him a new trial.
VI. Aftermath of the Decision.
This powerful and self-evident analysis -- that there could be distorting consequences of having a jury deliberate next to Confederate memorabilia -- would seem to be beyond cavil. Yet that is not the case. Rather than letting the issue end there, the Office of the Attorney General, representing the prosecution in defending the conviction, chose to seek an appeal to the Tennessee Supreme Court. It complained that the decision had erred legally in finding serious error in what it characterized merely as “courthouse décor.” As it does in over 90% of cases, the Tennessee Supreme Court declined to take the case (like the Supreme Court of the United States, it controls which cases from the lower courts that it reviews). It took the unusual step, however, of ordering that the Court of Criminal Appeals’ decision be deemed “not for citation.” That means it cannot be used as precedent in any other case in Tennessee. The Court ordinarily does this only when it have significant doubts as to whether the lower court’s decision was correctly decided, yet (for whatever reason) does not see the need to resolve the issue itself. The Supreme Court thus sought to distance itself from this analysis.
Further, in subsequent months, a different panel of the Tennessee Court of Criminal Appeals, comprised of three different judges, addressed a different case raising the same issues from the Giles County Courthouse. In the second case, the Court reached a different conclusion.[xxi] The Court of Criminal Appeals reasoned that the issue had not been properly preserved as the trial attorney had not objected, and there was no proof that the trial attorney had not been aware of the existence of the jury room. It noted also that there had not been any proof established that any of the actual jurors had noticed or commented on the Confederate memorabilia. Most importantly, it decided that there was nothing inherently prejudicial about this memorabilia. It relied on minor details or distinctions:
[W]e question whether the average citizen would recognize the portraits of Jefferson Davis or John C. Brown, the insignia for the United Daughters of the Confederacy, or the third national flag of the Confederate States of America. We acknowledge that the Confederate battle flag has become a controversial symbol in this country.... However, the flag in this case is not the Confederate battle flag.
The Court did acknowledge that it did not “condone the presence of the memorabilia in the jury room,” but ultimately ruled the defendant in that case was not entitled to relief.[xxii] The Tennessee Supreme Court is yet to decide whether it will intervene in this second case.
At the least, these precise items will no longer have the ability to influence jurors during deliberations. In the wake of the first decision, calling into question many of the convictions obtained in that courthouse, Giles County and the UDC jointly filed a petition with the Tennessee Historical Commission for permission to remove the Confederate memorabilia from the courthouse. That petition was approved in June 2022.[xxiii] The memorabilia will not be discarded, however, but will be displayed in the National Confederate Museum near Columbia, Tennessee.[xxiv] There, according to the museum’s website, “no politically-correct politician or justice warrior can dictate what can be displayed in the museum or how it shall be interpreted.”
[i] The authors filed an amicus brief in this case on behalf of the Tennessee Association for Criminal Defense Lawyers. Portions of this article are adapted from that brief.
[ii] Kyshia Henderson, Samuel Powers, Michele Claibourn, Jazmin L. Brown-Iannuzzia, and Sophie Trawaltera, Confederate monuments and the history of lynching in the American South: An empirical examination, Proceedings of the National Academy of Sciences - PNAS, Vol. 118, no. 42 at p. 2 (2021).
[iii] See also County by County: Confederate Memorials in Tennessee, The Tennessean (August 17, 2017), https://www.tennessean.com/story/news/2017/08/17/county-county-confederate-memorials-tennessee/574791001/.
[iv] See Eric Foner, Confederate Statues and ‘Our’ History, The New York Times (August 20, 2017), https://www.nytimes.com/2017/08/20/opinion/confederate-statues-american-history.html.
[v] See Southern Poverty Law Center, Whose Heritage? Public Symbols of the Confederacy, https://www.splcenter.org/20190201/whose-heritage-public-symbols-confederacy.
[vi] See Karen Cox, The whole point of Confederate monuments is to celebrate white supremacy, The Washington Post (August 16, 2017), https://www.washingtonpost.com/news/posteverything/wp/2017/08/16/the-whole-point-of-confederate-monuments-is-to-celebrate-white-supremacy/.
[vii] Henderson, supra note ii at p.2.
[viii] Data available at “Whose Heritage,” supra note v. Records indicate the Giles County U.D.C. Room dates to at least the 1930s, and in all likelihood was put dedicated prior to that.
[ix] See generally Karen Cox, The Confederacy’s ‘Living Monuments’, The New York Times (October 6, 2017), https://www.nytimes.com/2017/10/06/opinion/the-confederacys-living-monuments.html.
[x] See Jay Reeves, “Old South monument backers embrace ‘Confederate Catechism’,” Associated Press (May 29, 2017), https://apnews.com/article/slavery-al-state-wire-us-news-ap-top-news-fd949035729b4bc1a7d08ac0e5d90c17.
[xi] Henderson, supra note ii at 2.
[xii] Clint Hill, How the Word is Passed: A Reckoning with the History of Slavery Across America 144 (2021).
[xiii] LeeAnn Whites, Dixie’s Daughters: The United Daughters of the Confederacy and the Preservation of Confederate Culture, American Historical Review, vol. 110, no. 1, pp. 160–161 (Feb. 2005).
[xiv] One prominent U.D.C. leader, Laura Martin Rose, published a primer praising the Ku Klux Klan for having “maintained white supremacy and secured Caucasian civilization.” Ms. Rose, not coincidentally, was born in Pulaski. See The Confederacy’s ‘Living Monuments’, supra note ix; Eric Herschthal, The Fate of Confederate Monuments Should Be Clear, The New Republic (August 9, 2021), https://newrepublic.com/article/163191/fate-confederate-monuments-clear-book-review.
[xv] How the Word is Passed, supra note xvii, p. 160.
[xvi] Michael Lewis and Jacqueline Serbu, Kommemorating the Ku Klux Klan, Sociological Quarterly, vol. 40, no. 1, pp. 139–58 (1999).
[xvii] See Patrick Young, Kommemorating the Klan’s Birthplace With a Backwards Plaque in Pulaski, Tn (June 15, 2019), https://thereconstructionera.com/kommemorating-the-klans-birthplace-with-a-backwards-plaque-in-pulaski-tn/; and Old Post Cards Ku Klux Klan of Giles County, https://gilestn.genealogyvillage.com/postcard/kkk01.htm.
[xviii] Id.; see also Mark Wetherington, Tennessee Encyclopedia: Ku Klux Klan, https://tennesseeencyclopedia.net/entries/ku-klux-klan/. The plaque has now been turned backwards.
[xix] Barbara Hahn, Conflicting Commemorations: Past and Present in Confederate Memorialization, Management & Organizational History, vol. 13, no. 4, pp. 397–403 (2018).
[xx] https://www.tncourts.gov/sites/default/files/gilbert_tim-_filed_opn.pdf
[xxi] https://www.tncourts.gov/sites/default/files/martin_barry_jamal-_filed_opn.pdf
[xxii] It is perhaps worth noting that the portrait of Jefferson Davis is labeled, both on the plaque and on the portrait itself, as being of “Jefferson Davis.”
[xxiii] Mariah Timms, “Confederate decor leaving courthouse,” Tennessean 5A (June 24, 2002).
[xxiv] https://theconfederatemuseum.com/. The website indicates: “No government funding was used in the construction of this building. Nor will government funding will be used in the operation of the museum. This means no politically-correct politician or justice warrior can dictate what can be displayed in the museum or how it shall be interpreted.”
Jonathan Harwell is an assistant public defender in Knoxville, Tennessee.
Richard Tennent was an assistant public defender from 1994 to 2005. From 2005 to 2017 he was in private practice, focusing on criminal defense. Since 2017 he has represented men on Tennessee’s death row.
(c) 2022 Jonathan Harwell and Richard Tennent