The First Amendment Right to Spiritual Counsellors in the Court Room
In November of 2021, a jury composed of 11 whites and one black at the Glynn County courthouse in Brunswick, Georgia, convicted three white men for the murder of African American Ahmaud Arbery. He had been jogging in their neighborhood before they confronted him with a shotgun and killed him as he sought to take it from one of them. Although he was unarmed and had no contraband with him, the white men claimed they were attempting to make a citizen’s arrest in the belief that he might be a thief.
One of the more controversial aspects of the trial centered on the objections by the defense counsel to exclude black clergymen from the gallery.
Prosecutors and commentators alike expressed shock that the attorneys appeared to call for the exclusion of individuals based on race, which would most certainly have violated the equal protection clause of the Fourteenth Amendment. However, the case also posed questions involving First Amendment rights of association and religion, as well as Sixth Amendment guarantees to a public trial, without which the public might have remained uninformed about such an important event.
It probably did not help that defense attorney William “Roddie” Bryan compared the presence of Al Sharpton, Jesse Jackson and other high-profile pastors to the presence of gang members appearing at trial to intimidate witnesses. The Rev. William J. Barber II, an African American who is Chair of the Poor People’s Campaign, wrote an editorial indicating that he considering comforting individuals who had lost loved ones a vital part of his ministry.
Most cases involving the Sixth Amendment rights to public trials have concentrated on the right of members of the press to attend trials, but, however in-artfully defense attorneys phrased their objections to “black” preachers, they arguably raised issues that are worthy of consideration for future trials.
These issues are both practical and constitutional. As to the first, especially in trials where race is likely to be at least an underlying issue, it is not altogether clear which side would be prejudiced by the presence of high-profile figures who are associated, not simply with religion, but also with the Black Lives Matter movement or other race-related causes. Instead of serving primarily as support for the families who have lost loved ones, it is quite possible that the presence of such individuals in the sight of jurors will simply highlight the potential political aspects of a case. Although it does not appear to have happened in this case, clergymen who believe they are on hand to provide comfort to grieving families might inadvertently stir racial fears or hatreds.
As to constitutional concerns, the presence of high-profile clergy associated with political causes might encourage jurors the view the case as a political, civil rights, or religious cause rather than as a set of facts that they should impartially decide on simple determinations of guilt or innocence. In such circumstances, it is possible that the best course of action for a member of the clergy to take is to pray from home or communicate before and after trial proceedings by telephone.
It should be understood that whatever ruling is made on behalf of one side would typically also affect or apply to the other. What if the white defendants had chosen to invite members of the Proud Boys, known local members of the Ku Klux Klan, or other advocates of white power to accompany them into the courtroom? Again, depending on the jurors, this might prove to be an unwise move, but should it be legally prohibited?
To even the playing field and limit it solely to religious figures, should the defendants be permitted to invite the so-called QAnon Shamon (presumably without fur and horns) or Jerry Falwell, Jr. to accompany them into the courtroom or to sit behind them?
Defendants do, of course, have the right to call character witnesses, but their leeway to do so is somewhat controlled by the fact that they are subject to cross examination. One can imagine them asking – “You think the defendant is a person of fine moral character, but you don’t actually condone murder, do you? And you weren’t actually at the scene of the crime, were you? And you know nothing of the character of the victim?”
With individuals simply attending or viewing a trial, however, no party to the proceeding may question them, their motives for attending, or even which party to the case they are supporting. There is a presumption, generally accurate, that members of a victim’s family sit behind the prosecution team in the courtroom, while the defendant’s family members sit behind him or her in the courtroom – like picking the bride or groom’s side of a wedding. In this way, members of the public generally show support to one side or the other in a trial, and jury members are allowed to make these assumptions.
Because of these assumptions, legal precedents have prohibited individuals attending trials from wearing buttons with pictures of victims, from expressing opinions from the gallery (in the Georgia case, the victim’s father was actually ejected from the courtroom for cheering as the verdicts were announced), or from wearing gang colors with which jurors might be aware. In essence, these cases and rules, which interfere at least modestly with First Amendment freedoms, attempt to prevent undue influence or intimidation of witnesses or jurors.
Clearly, a judge could not exclude individuals from attending public court proceedings simply because they are members of the clergy or because they are of a particular race without violating the First and Fourteenth Amendments. In an age where the lines between religious and political views are often indistinct, though, judges might have an obligation to exclude individuals of whatever religion or race, whatever side they are there to support, if their high profile or celebrity status would be likely to alienate, prejudice, sway, or unduly influence witnesses or jurors.
Baker, Liz. “Black pastors gather in Brunswick, Ga., to support Ahmaud Arbery’s family. November 18, 2021. https://www.gpb.org/news/2021/11/19/black-pastors-gather-in-brunswick-ga-support-ahmaud-arberys-family
Barber, William J., II. 2021. “My skin color should not prevent me from attending the trial of Ahmaud Arbery’s accused killers.” The Washington Post, November 27, 2021.
Ellis, Nicquel Terry. November 18, 2021. “A lawyer in the Arbery death trial tried to keep Black pastors out of court. More than 100 showed up today.” CNN. https://www.cnn.com/2021/11/18/us/black-pastors-pray-arbery-death-trial/index.html
Virginia Vile Tehrani
is an Associate Attorney with Greenblatt & Veliev, LLC, which is a litigation law firm based in Rockville, Maryland that provides services to individuals for personal injury, workers’ compensation, and criminal and traffic defense cases. You may reach her at 301-251-8776 or by email at email@example.com.
Dr. John R. Vile
is the Dean of the University Honors College and Professor of Political Science at Middle Tennessee State University. He is also the author of numerous books on the U.S. Constitution and related topics. You may reach him at 615-898-2596 or by email at John.firstname.lastname@example.org.