A state lawyer group headed by Chattanooga attorney Ben McGowan says a black man did not get a fair trial because the jury deliberated in the "Confederate Room" in Giles County, Tn.
The Tennessee Association of Criminal Defense Lawyers filed an amicus (friend of the court) brief in the Tennessee Supreme Court urging justices to resolve a split between panels of the Court of Criminal Appeals (CCA).
Attorney McGowan said, "In both cases, a black man was convicted of a crime by a jury which deliberated in the United Daughters of the Confederacy Room, a room in the courthouse decorated with Confederate symbols, including the 'Blood Stained Banner' (the final flag of the Confederacy) and a portrait of Confederate President Jefferson Davis."
Attorney McGowan said in one case, State v. Tim Gilbert, No. M2020-01241-CCA-R3-CD, 2021 WL 5755018 (Tenn. Crim. App. Dec. 3, 2021), "the CCA panel noted the symbolic importance of the flag and described the political ideals behind the Confederacy, concluding that 'slavery and the subjugation of black people are inextricably intertwined with the Confederacy and the symbols thereof.'
"It argued that it is particularly inappropriate for the state to be conveying any message to deliberating jurors outside the courtroom context. It finally concluded, in granting a new trial: 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.'... 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."
However, in State v. Barry Jamal Martin, No. M2021-00667-CCA-R3-CD, 2022 WL 3364793 (Tenn. Crim. App. Aug. 16, 2022), a different panel of the CCA disagreed, the attorney said.
He said it rejected "a similar claim that the defendant’s rights were violated by the displays of Confederate symbols in the jury room (a jury room, not coincidentally, a mere block from the location of the founding of the Ku Klux Klan). TACDL is very concerned that this direct split in authority will lead to confusion.
"Moreover, TACDL believes that the Martin decision is wrong as a matter of history and contrary to our shared constitutional values. History should certainly be learned, honored and respected, and there are places where Confederate artifacts can properly be displayed. But the jury room is not such a place."
He said TACDL’s brief "sets out in detail the history of the use of the Confederate flag during the Civil Rights era and the modern day, as well as political efforts by groups such as the United Daughters of the Confederacy to spread the Myth of the Lost Cause through erection of memorials like the UDC Jury Room.
"It also describes the conscious and unconscious effects that exposure to Confederate memorabilia can have on jurors, an effect supported by social science research, and the chilling effect it can have on Black Americans trying to exercise their civic duty as jurors. While the items have now been removed from the courthouse, the decision of the CCA denying Mr. Martin an opportunity for a fair trial should not stand.
"Further, the Tennessee Supreme Court should grasp this opportunity to send a strong message to all Tennesseans. Historical objects which “honor” the subjugation and enslavement of an entire race, and which are still used today as symbols of ongoing hatred, have no place in the halls of justice."