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A Confederate Flag in the Jury Room Leads to a New Trial: “Talking Images” and the Visual Turn in Law

January 21, 2022

Does the image of a Confederate flag framed and hung on the wall of a jury room provide “extraneous prejudicial information” on which to set aside a verdict? Yes!

By Regina Austin

The headlines were intriguing. “Black Man Deserves New Trial after Jury Used Room Decked with Confederate Tributes, Court Says,” reported The Washington Post. “Black Man Wins New Trial over Confederate Memorabilia in Jury Room” read The New York Times. Between the headline and byline, the Post article had a photo of the door and part of the room; the image included two Confederate flags. The Times offered an interior view of the room that revealed a Confederate flag mounted on the wall.

The opinion in the case, State v. Tim Gilbert, was decided by the Court of Criminal Appeals of Tennessee; it is available on the internet and in the Westlaw and LexisNexis databases. Unlike the news articles, the opinion itself does not include images of the jury room. Unless it is an intellectual property matter, opinions seldom contain copies of the images that are decisive to the outcome.

Gilbert is unusual in that the controversy was not sparked by the statue of a Confederate soldier that is outside of the Giles County Courthouse in Pulaski, Tennessee, where Gilbert was tried, nor by a Confederate flag flying over the building. Instead, the problematic Confederate artifacts were located inside the courthouse, in the room where an all-white jury deliberated the fate of a Black criminal defendant.

Tim Gilbert was involved in a domestic altercation with his adult daughter’s mother at his home on Christmas Eve 2018. He was charged with aggravated assault, reckless endangerment, unlawful possession of a firearm, and resisting arrest. A jury found him guilty, and the judge sentenced him to six years in prison.

On appeal, Gilbert argued “that using a room maintained by the U.D.C. [i.e., the United Daughters of the Confederacy] and ornamented with relics of the Confederacy for jury deliberations exposed the jury to extraneous prejudicial information and violated his constitutional right to a fair trial by an impartial jury, due process, and equal protection under the law.” (Emphasis added.) Without reaching the constitutional questions, the three-judge panel concluded that “the State failed to sufficiently rebut the presumption that the defendant was prejudiced by the jury’s exposure to the Confederate memorabilia in the U.D.C. Room” and granted Gilbert a new trial on that basis, along with the wrongful admission of a statement by his daughter.

The Law is not communicated exclusively by the written word or texts. In a jury trial, it is not conveyed solely by the attorneys’ arguments or the judge’s instructions. Images can be a source not only of evidence or facts but also of the essence of justice, that is, what the law is and requires. This is undoubtedly true for ordinary people who are not trained in the law and acquire their understanding of the law through lived experience.

Yet, as Professor Linda Mulcahy of the London School of Economics maintains in  “Eyes of the Law: A Visual Turn in Socio-Legal Studies,” 44 J. of Law & Society S111, S117 (2017), the legal profession exhibits a “general reluctance … to treat images seriously and to ponder the work they do in the legal system.” She continues, “Engagement with the visual involves a consideration of the ways in which images prepare people for a particular type of encounter with law” or become “an aspect of legal culture which is anchored in daily practice or facilitates learned habits of interpretation that go without saying.” Professor Mulcahy‘s analysis suggests that the profession is suspicious of images because their meaning and import cannot be rigorously and objectively deciphered. Such suspicion might result from a reluctance to deal with complexity or a fear that images might reveal too much. According to the professor, images “may tell us more about the violence of law than written texts” and illustrate “the all-to-large gap between the rhetoric and the reality of the legal system.” To seriously consider the work that images do in the legal system, professionals would have to share the power to expound on and interpret the law with people whose actual encounters with the law challenge and contradict the devotion to equality and fairness that permeates legal discourse.

Professor Mulcahy has also argued that the failure to engage with images extends to the design and décor of places and spaces where the legal system operates, such as courthouses, prisons, and police precincts. As she puts it in “Architects of Justice: The Politics of Courtroom Design,” 16 Social & Legal Studies 383, 384 (2007), space within the courthouse is typically considered “depoliticized”: “If all else is equal, the judgment given in one place would be the same as the judgment reached in another.” “This conceptualization of the legal arena,” she maintains, “limits our appreciation of how spatial dynamics can influence what evidence is forthcoming, the basis on which judgments are made and the confidence the public have in the process of adjudication.” The outside and the inside of the courthouse, then, represent “a particular articulation of social, cultural and legal relations.”

Gilbert turns a corner on the conceits the legal profession may harbor regarding the significance of images of and to the law and opens new possibilities for assessing images as expressions of legitimate and illegitimate power and evidence of justice and injustice.

Reading the Contents of the Room

The readers of the Gilbert opinion do not have access to the photos of the jury room and its décor, taken by the defendant’s lawyer, that were introduced during the hearing for a new trial and referred to by the appellate court. In lieu thereof, the court described what the photos show in detail. However, a few copyrighted images are provided here, with the permission of Tim Gilbert’s attorney Evan Baddour, so that readers can arrive at their own conclusions about the room and its possible impact on the jurors. Nonetheless, a brief discussion of the Confederate memorabilia in the room might be helpful.

The door has a frosted glass panel that indicates, in gold paint, that it is the “U.D.C. Room,” “U.D.C.” standing for the United Daughters of the Confederacy. The door also bears the logo of the U.D.C., which consists of “The Stars and Bars,” the first national flag of the Confederate States of America, surrounded by a wreath of gold with a ribbon at the bottom with the numbers 61 on the left and 65 on the right. The Confederacy existed between 1861-1865.

The Blood Stained Banner The Blood Stained BannerIn the U.D.C. Room itself, hung on the wall directly opposite the door, is a large, framed Confederate flag known as the “Blood Stained Banner.” There is a wide red band at its far-right end. In its canton or upper left-hand corner is the most widely recognized symbol of the Confederacy, the “Battle Flag of the Army of Northern Virginia.” It consists of a blue St. Andrews Cross, edged in white and containing 13 white stars, one for each state of the Confederacy, situated on a red background. To the flag’s right, on the same wall, there is a window and a large painting of Confederate General John C. Brown. He was born in Giles County, practiced law in Pulaski, and served as Tennessee’s governor between 1871 and 1875.

Plaque indicating U.D.C. ownership of portrait Plaque indicating U.D.C. ownership of portraitOn the adjacent wall of the room, there is a framed print of Jefferson Davis, president of the Confederacy. He is twice identified, once on the portrait itself and again on a plaque. Indeed, each item has a plaque indicating what the article is and that it is the “[p]roperty of Giles County Chapter #257, UDC.”

To the right of the Davis portrait there is a window and a framed letter dated March 25, 2005, written by the then president-general Letter from U.D.C. President-General Letter from U.D.C. President-Generalof the U.D.C. on United Daughters of the Confederacy letterhead. According to the letter, which the court quotes in full, the room had been dedicated to the U.D.C. since the 1930s. Moreover, the frosted glass in the door was installed in or around 2005 to replace the clear glass installed after the original was broken sometime after the Red Cross began using the room during WWII. The letter writer enthusiastically greeted the news of the replacement as follows: “How exciting you wish to be more visible in Giles County! With the replacing of the panel on the door, you will be continuing a tradition of the UDC, namely, memorial.”

“These Walls Do Talk”

The court built its decision around the flag on the wall, not the portraits or the numerous references to the U.D.C. The court said it “was the most visible and most instantly recognizable of the items on the wall.” Though the court does not so indicate, it is the Confederate battle flag incorporated in the Blood Stain Banner’s canton or the upper left-hand corner that makes its decision to focus on the flag incontrovertible. Quoting federal precedents, the court noted the capacity of flags “‘to communicate messages pertaining to, say, a government’s identity, values, and military strength.’” Moreover, flags have been used “’‘throughout history to communicate messages and ideas.’” It was the flag, then, that the court identified as conveying “extraneous information” to the jury.

The court found the message or ideology conveyed by the Confederate flag in the historical context surrounding its adoption. The court referred to the reasons each state gave for joining the Confederacy in its articles of secession. Provisions of the Confederate Constitution provided additional support for its analysis. The court concluded that the documents “establish[ed] that slavery and the subjugation of black people are inextricably intertwined with the Confederacy and the symbols thereof.”

Furthermore, the message the flag conveyed was the expressive conduct of the government, despite its being the property of the U.D.C., a private organization. Moreover, said the court, “the location of the flag and the other items within the courthouse in a room used on a regular basis, which location has not been historically viewed as a public forum, clothes all of the items, including the flag in particular, with the imprimatur of state approval.” The placement of the flag created the impression that it was “government speech, in that it belonged to, was endorsed by, and represented the views of the government.” As such it carried “great weight and influence.”

The flag’s location in the courthouse’s jury room contributed to the import of its expression. As jurists of Tennessee, the judges in the case were well situated to declare that the values associated with the Confederate flag were out of place inside the jury room. The ideals of the Confederacy are “antithetical to the American system of jurisprudence.” It is impermissible for the government to “convey any message at all to the jurors in a criminal trial.” The state, as represented by the judge and the jury, is supposed to be “disinterested and impartial.” The jury’s role is to protect a defendant’s life and liberty from race or color prejudice.

Lost the War, Still Waging the “Lost Cause”

Of course, the Confederate battle flag’s ability to convey a message of legal significance did not end with the Civil War or Reconstruction.

Tim Gilbert was tried in March of 2020 when there were heightened calls for the end of tributes to the Confederacy found in public places, both publicly and privately owned. Gilbert’s claim and the court’s analysis were bolstered by the contemporary movement to eradicate symbols that glorify the Confederacy, like the battle flag, statues and portraits of soldiers and officers, and the names of both publicly and privately owned locations (particularly schools, colleges, universities, and military installations) because of their association with slavery, Jim Crow segregation, violent resistance to integration, white supremacy, and Black inferiority.

Portrait of Jefferson Davis, President of the Confederacy Portrait of Jefferson Davis, President of the ConfederacyThough the South lost the Civil War, Confederate symbols and imagery are ubiquitous throughout the American social and political landscape. The proliferation of the memorials and monuments in the former Confederacy dates from the period between 1890 and 1920, which is to say, after Reconstruction and around the time that Jim Crow laws were enacted, lynchings increased, and the Ku Klux Klan reemerged in an explosion of violence. (The KKK, by the way, was founded in Pulaski, Tennessee.) It was part of a crusade to rehabilitate the (male) losers of the “War Between the States” based on the ideology of the “Lost Cause,” which associated the antebellum Old South with contented slaves, benevolent masters, heroic soldiers, and sacrificing genteel white women. White supremacy was at the heart of the ideology. Confederate symbolism increased again in the 1950s and 1960s in connection with opposition to the Civil Rights Movement and efforts to end racial apartheid. Confederate symbolism is reappearing today with the rise in white nationalism and white supremacy.

The concerted struggle by Black Americans and others to have symbols of the Confederacy taken down or removed from public view has been ongoing but quickened after the murder of nine worshippers at the Emmanuel A.M.E. Church in Charleston, S.C. in 2015 and the 2017 white supremacist/white nationalist “Unite the Right” rally in Charlottesville, Virginia, which was staged in part to protest the proposed removal of the statue of General Robert E. Lee from a public park. Calls for action regarding memorialization of the Confederacy reached their height in 2020 in the wake of the protests triggered by the video of the murder of George Floyd by a Minneapolis police officer.

Thus, the Tennessee court might have looked to more contemporary events as part of the context relevant to discerning the message the Confederate flag on the wall conveyed to the Gilbert jury. Doing so would have required that it conduct a more probing examination of the many references to the U.D.C. as a source of what an amicus on the appeal termed “improper outside influence.”

Heeding the Writing on the Wall

The court did not find “prejudicial expression” of the ideology of the Confederacy in the portraits of Jefferson Davis and General John C. Brown or in the room’s dedication to the U.D.C. The flag’s impact was likely immediate and visceral. The jury might not have instantly associated Davis and Brown with the Confederacy’s core values, even if the jurors read the names on the plaques. Additionally, it was undoubtedly more politic to attribute the espousal of white supremacy and racism to an inanimate object like the flag than to sentient beings, dead and alive.

In that regard, though, the U.D.C. occupies a middle ground. Its existence as an organization spans the history of Southern opposition to Blacks’ struggle for racial justice and equality in the face of Jim Crow laws and the resurgence of the KKK, the violent repression of the civil rights movement, and the recent resistance to the effort to remove Confederate memorials and symbols from unchallenged places of honor once and for all.

The Daughters of the Confederacy, a voluntary remembrance and heritage association composed of female descendants of soldiers, sailors, civil servants of the Confederate States of America, was founded in Nashville, Tennessee, in 1894. It persists to this day. According to its website, the organization’s objectives include “honor[ing] the memory of those who served and those who fell in the service of the Confederate States,” as well as “protect[ing and] preserv[ing] places made historic by Confederate valor,” and “the material for a truthful history of the War Between the States.” The ideology of the Lost Cause legitimated the work of the The Frosted Panel Door The Frosted Panel Door women of the U.D.C. while they promoted it. See generally Karen L. Cox, Dixie’s Daughters: The Daughters of the Confederacy and the Preservation of Confederate Culture (2003). According to the authors of “Monuments as Mobilization? The United Daughters of the Confederacy and the Memorialization of the Lost Cause,” 102 Soc. Sci. Q. 125 127 (2021), the U.D.C. “was often at the forefront of monument construction.” It “changed the meaning of memorials from instruments of grief to tools of civic instruction.” The authors continue, “Monuments constructed on county courthouse grounds were especially significant; they commemorated the war in front of the key political building in a county, the main unit of local government in the South.”

The U.D.C. remains active in challenging current efforts to remove, replace, or recontextualize memorials to and remembrances of the Confederacy in the state of Tennessee. For example, it sued to block Vanderbilt University from erasing “Confederate” from the name of a dormitory the U.D.C. had paid $50,000 to build in 1935 at a college with which Vanderbilt subsequently merged. A court ruled that Vanderbilt was obligated to keep the name or repay the present value of the donation. In 2016, the university paid the U.D.C. $1.2 million provided by anonymous donors, and the building became simply “Memorial Hall.”

The court might have read the entire jury room was a memorial to the Confederacy that emanated a message regarding white supremacy and black inferiority sustained over the long history of the U.D.C.  That might have seemed to be too far a stretch given the general approach of the judiciary toward reliance on images. The court could have relied on the conclusion expressed in the 2005 letter from the organization’s then-president-general that the installation of the frosted glass panel in the door of the U.D.C. Room represented a continuation of the “traditions of the UDC, namely memorial.”   

Conclusion

If physical images, both outside and in the courthouse, can talk, the courts and the legal profession should listen. Physical or tangible images, like verbal or written imagery, have something to say about the quality of justice being dispensed in courthouses and throughout the country’s legal venues. Lawyers, in general, ought to learn more from images of injustice and unfairness, particularly as they are created or interpreted by everyday people. Those images can supply the fodder for the verbal and written arguments required to set the law on a just course. Gilbert is headed in the right direction.