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January 7, 2009

Seeking guidance from a higher authority on Bible-influenced capital sentencing

I have previously noted in prior posts how lower courts have split over the consequences of juror consideration of biblical passages during the penalty phase of a capital trial.  Indeed, as noted here, nearly three years ago, Karl Keys of CDWsuggested that it is "past time time for SCOTUS action" on this issue.  Now, thanks to a helpful reader, I have learned that a new cert petition (available for download below) presents the Justices with a new opportunity to take up this issue.

The new petition involves a Texas case, Oliver v. Quarterman, that has already worked its way through federal habeas. Here are the first two questions presented in the Oliver petition:

1. Does juror consultation of the Bible during sentencing deliberations deprive a defendant of his federal constitutional rights?

2.When evaluating possible prejudice to a defendant resulting from juror consultation of the Bible during sentencing deliberations, what standard of proof should apply, or should there be an irrebuttable presumption of prejudice?

Download Final Oliver Petition

Some related prior posts:

January 7, 2009 at 09:28 AM | Permalink


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While such materials would be likely to turn me away from the speaker's position, I have an extremely difficult time beleiving SCOTUS would rule them to be improper. We ask jurors to perform an awesome task and especially so during the penalty phase of a capital trial. By the time such a decision is to be made the questions have moved beyond merely legal-factual and into the realm of ethics and morality. Such questions are going to receive little guidance from the materials provided by the court so whatever external source of wisdom the jurors choose to use should be fair game for their consideration.

Posted by: Soronel Haetir | Jan 7, 2009 9:55:41 AM

I agree. I am a strong believer in the separation of church and state (mostly for the good of religion) but "separation" and "complete and total isolation from each other in every and all circumstances" are not the same concept. Put another way, "separation" and "alienation" are not the same words. There is nothing wrong with consulting the Bible, or the Koran, or whatever religious text you please. People are going to be guided by their religious beliefs whatever you do. Taking these resources from them in this situation isn't really the separation of church and state; it's a sham.

Posted by: Daniel | Jan 7, 2009 10:53:31 AM

Being from a southern state, I think the better strategy from a defense perspective is to use Biblical themes rather than attempt to squash them. The jury will absolutely consider their faith when making what amounts to a moral decision; more so than a legal one. If defense counsel has not brought up mercy, forgiveness and the possibility of redemption as themes in his penalty phase, he's going to have a tough time after the state goes on and on about an eye for an eye.

Posted by: Talitha | Jan 7, 2009 11:39:02 AM

If there is one thing the law does not need, it is yet another ground for federal micromanagement of state criminal procedure, especially capital sentencing procedure. The Supreme Court should be moving in the other direction, reexamining the Byzantine code of sentencing procedure it has already created and discarding those rules that are not truly fundamental.

Posted by: Kent Scheidegger | Jan 7, 2009 6:40:36 PM

Soronel, with all due respect I believe your views are contrary to the Rule of Law and the Sixth Amendment right of defendants to confront the evidence which is being used against them. I am a capital defense lawyer and we can't have a situation where both sides try their cases according to the rules of evidence and then the case gets decided in the jury room based on considerations that are disconnected from the evidence presented. Bruce Cunningham

Posted by: | Jan 7, 2009 7:09:06 PM


A stark split exists among the various jurisdictions on this issue. One of the chief purposes of the SCOTUS -- at least as I have always understood it -- is to address such splits. On that ground alone cert is overdue.

I suspect, however, that the Court has avoided the issue as it is unclear where either side gets a reliable fifth vote on the issue. You appear to fear that the fifth vote will the defense's way. I honestly think it is likely to go the other.

I share both Bruce's & Talitha's concern about how much G-d we should be allowed to argue in closing and tolerate in deliberations. The lower court's need guidance & it's about time the Court clarifies the issue.

Posted by: karl | Jan 7, 2009 9:38:35 PM

Karl, I have no objection to their granting certiorari on the issue, but the decision should be that the United States Constitution says nothing either way on the point, and it is a matter of state law whether to allow such comments or not.

Posted by: Kent Scheidegger | Jan 7, 2009 10:52:28 PM

Capital punishment is a moral choice, and a weighty one at that. Many Americans are religious and rely on the good book for moral guidance. Seems to me that consultation of the Bible or any other religious text by a juror is not a constitutional violation.

The prosecution (or defense) should not be allowed to invoke Scripture in argument.

Posted by: federalist | Jan 7, 2009 10:54:19 PM

I think the court will decide that biblical and theological discussions will not be allowed in deliberations, or in opening or closing statements, unless essential to the case.

Of course jurors can reflect on all of their moral foundations while deliberating. They will and they should. They just won't be able to have bible study while deliberating.

Whether atheist, agnostic, Jewish, Catholic, Baptist, Muslim, or Indifferent, all jurors bring a moral foundation into the case. The Court knows it, as do we all.

The jurors are to use the facts and the law.

Even biblical and theological scholars disagree on some important religious points. To say that biblical fact and fiction can cause chaos in deliberations by laymen is obvious and might be even worse with two scholars deliberating.

I may agree with Kent that the Constitution doesn't speak directly to this and that the states should handle it. But, SCOTUS works around that quite often and I think they will here.

Posted by: Dudley Sharp | Jan 8, 2009 9:39:24 AM

It is relevant that there is a link to Sister Prejean's "powerful perspective", above.

No biblical scholar of theologian, she changes her mind on an important biblical passage and appears to challenge the basis of essential Christian doctrine.

Do we want this type of open discussion or debate, if it is not an essential fact issue in the case? Does the Court have the right to censor it?

She writes: "It is abundantly clear that the Bible depicts murder as a capital crime for which death is considered the appropriate punishment, and one is hard pressed to find a biblical ‘proof text’ in either the Hebrew Testament or the New Testament which unequivocally refutes this. Even Jesus’ admonition ‘Let him without sin cast the first stone,’ when He was asked the appropriate punishment for an adulteress (John 8:7) - the Mosaic Law prescribed death - should be read in its proper context. This passage is an ‘entrapment’ story, which sought to show Jesus’ wisdom in besting His adversaries. It is not an ethical pronouncement about capital punishment .” Sister Helen Prejean, Dead Man Walking.

The sister’s analysis is consistent with much theological scholarship. Also, much scholarship questions the authenticity of John 8:7.

From here, the sister states that “ . . . more and more I find myself steering away from such futile discussions (of Biblical text). Instead, I try to articulate what I personally believe . . . ”

The sister has never shied away from any argument, futile or otherwise, which opposed the death penalty. My opinion is that she has abandoned biblical text for only one reason: the text conflicts with her personal beliefs.

Sister Prejean rightly cautions: "Many people sift through the Scriptures and select truth according to their own templates." (Progressive, 1/96). Sadly, Sister Prejean appears to do much worse.

The big switch.

The sister now uses that very same biblical text “Let the one who is without sin cast the first stone” as proof of Jesus’ “unequivocal” rejection of capital punishment as “revenge and unholy retribution”! (see Sister Prejean’s 12/12/96 fundraising letter on behalf of the Saga Of Shame book project for Quixote Center/Equal Justice USA).

Her first analysis is most strongly supported by theologians and other scholars.

The huge switch.

"(Sister Prejean) received nothing but a stony silence, however, when she questioned the basis of the biblical crucifixion story as a "projection of our violent society." "Is this a God?" Prejean asked about the belief that God allowed his son, Jesus, to be sacrificed for the sins of humanity. "Or is this an ogre?" "The audience -- to that point in strong agreement with the author of "Dead Man Walking" -- said and did nothing." ("God, ogre comparison doesn't fly with interfaith crowd", Paul A. Anthony, Rocky Mountain News, 03:35 p.m., August 24, 2008).

It is understandable that the audience was stunned. Sister Prejean is questioning the bedrock of the Christian faith.

Appropriately, Pope Benedict XIV appears to rebuke her a few days later.

"If to save us the Son of God had to suffer and die crucified, it certainly was not because of a cruel design of the heavenly Father. The cause of it is the gravity of the sickness of which he must cure us: an evil so serious and deadly that it will require all of his blood. In fact, it is with his death and resurrection that Jesus defeated sin and death, reestablishing the lordship of God." ("It Is Not 'Optional' for Christians to Take Up the Cross", 8/31/2008) http://www.zenit.org/article-23515?l=english

Whether we want these types of debates in deliberation or not, is not the issue. The consideration is, is it a constitutional violation to have them, when not essential to the case?

I think the Court will say that it is, although I am, not at all, certain it is.

Might be. Might not.

Posted by: Dudley Sharp | Jan 8, 2009 10:03:11 AM

The entire panel should be asked on voir dire if they read and own the Old Testament or the New Testament. Defense counsel would be pleased to hear the later. Especially if the offense is one involving putting out someone's eye.

Posted by: mpb | Jan 8, 2009 6:04:20 PM

I think the US Constitution, particularly the Sixth Amendment, addresses this situation on at least two fronts. The Confrontation clause, which after Crawford, has been revitalized. I shouldn't have to try a case and then a juror goes back and votes according to matters, Biblical teachings, that were not mentioned during the trial.

The second is the obvious Witherspoon/Witt line of cases related to death qualification of jurors. Neither the State nor the defendant should be required to try a case with a juror sitting on it who has already made up their mind no matter what the evidence is.

Bruce Cunningham

Posted by: | Jan 8, 2009 8:38:38 PM


The problem with your argument is that by the time the penalty phase is reached, in both capital cases and states (such as Texas from what I understand) that invest a great deal of sentencing discretion with the jury is that the law should be almost irrelevant. And facts only somewhat more relevant. Death is ultimately an ethical judgement, informed by many more sources than those provided for in the trial itself.

I would have no more problem with someone consulting tarot cards, or runes or a ougie(sp) board. Sych decisions, as I said before have progressed beyond merely legal-factual.

Posted by: So | Jan 9, 2009 12:00:33 AM

So: Other Bruce is exactly right. It's one thing to have jurors with religious beliefs. It's another thing to have the jurors go into the deliberation room, open up the bible to a particular passage which suggests death is the proper, holy, ordained-by-god punishment. The Bible makes no reference to the facts of the case. It also calls for death for adultery, fornication, stealing sheep, homosexuality, and all sorts of other acts that are not capital offenses (if even modern crimes at all). Moreover, there is no way to argue or debate religious people - so if they feel the bible warrants their imposition of the death penalty, that's the end of deliberations - none of the other statutory factors jurors are required to consider will be considered (though the state will say they considered them, and the jurors can't be questioned about it).

Also, for every Bible quote, there is an equal and opposing Bible quote. Why should Defendant A get sentenced to death because his jurors opened up to page 1244 when Defendant B gets spared because the jurors opened up to page 488?

I'm against death qualification of jurors - the state should have to take its jurors as they get them, without question about their willingness to impose the death penalty. That's the only way the jury pool reflects the true morality of the community. But if we're going to allow death qualification, we should also have religious qualification - jurors who cannot judge a case or sentence a defendant according to the evidence and without regards, or in contradition to their own religious beliefs have no purpose sitting on a jury. Especially when they may be sitting in judgment of a defendant of a different religion. If Christian fundies want to execute Christian fundies based on scripture, well, I don't like it but I'll stay quiet. One less religious person in the world is fine by me.

Jurors are supposed to judge case, and impose a punishment based on the law and the facts, and their own sense of what is proper and warranted. You may say religion informs and is inseparable from that decision, but I could not disagree more. Fairy tales about holy rocks and people living inside whales and turning into pillars of salt, as well as irrelevant "commandments" have no place in modern life, let alone a modern courtroom.

If you are religious, would you let your punishment of guilt/innocence, life/execution be decided by the flip of a holy coin, duly annointed by the highest order of your own religion? No, you say? Why not, where's your faith? Meanwhile, letting jurors sentence based on their own random interpretations of random quotes from random "holy" books is functionally equivalent to a coin toss.

Yeah I realize jurors are likely not all atheists, and they may pray or think of a religiou principle during deliberations... but that doesn't make it right. If it were up to me, religious people wouldn't be allowed to serve on juries unless they took an oath (to their god) that their religion will in no way influence their decisions made on the jury. They're supposd to follow state/federal law. If they are bound to a "higher" law, whoopdie doo, good for them, but they shouldn't be allowed within 500 yards of a jury.

Posted by: BruceM | Jan 9, 2009 4:45:50 AM

So: Just so I'm not accused of picking on Christianity, I want to affirm that I'm also against jurors using Tarot cards and Weegie boards and magic crystals and devining rods during deliberations in criminal cases.

Civil cases too, for that matter. If that's how cases are going to be decided - by illogical, irrational, fanciful, fairytale bullshit, then what's the point of wasting so much time and money on a trial? It would make more sense to just flip a (non-holy) coin.

Posted by: BruceM | Jan 9, 2009 4:52:26 AM

"One less religious person in the world is fine by me."

Ahh, bigotry on display. Gotta love it.

Posted by: | Jan 9, 2009 11:03:48 AM

Religion is not a race.

Now, I'm on record saying I believe religion is not a choice, but rather a highly contagious mental disease. But when I say that, religious people get offended and insist that I'm being mean, and that they are, in fact, religious by choice.

If that's the case, then wanting less religious people in the world is no different than wanting less terrorists or economists or lawyers. Either people are religious by their own choice, which case it is acceptable to dislike them for their choice, or they are religious by accident of birth or disease or genetics, which case it is NOT acceptable to dislike them. You can hate someone for what they choose to be, but not what they are.

I don't hate religious people because I think they're sick and to hate sick people is mean - it's not their fault. But at the same time, their sickness poses a danger to the rest of humanity. So I want there to be the least number of these dangerous sick people as possible. I don't want to hang them. I don't want to stick them in concentration camps and torture them, I don't want to burn them in ovens. Ideally they should be quarantined in the most civil, humane way possible.

But you probably think religion is a choice (like you really were agnostic, examined all the world's religions and settled on christianity as an intellectual decision - my ass - you're a christian solely because your parents are christians, same as all religions). In that case, it is not "bigotry" to dislike someone for a choice they knowingly made.

Posted by: BruceM | Jan 9, 2009 8:23:11 PM

It is a fundamental tenet of criminal law (indeed, all law), that judgments are based on evidence as applied to law. I mean, this presents the easiest legal question anybody could ever possibly ask. If I were a law professor and a student got it wrong, I would have to wonder whether that person were fit to obtain his degree. It is somewhat distressing (but sadly not unexpected) to see so many comments effectively endorsing a legal judgment based on Bible verses.

Should a judge consult a Bible to determine whether a particular piece of evidence in a trial is admissible? If not, why should a jury consult a Bible to determine whether legal standards that a human being should die have been met? There are laws passed by legislatures that are supposed to be applied to evidence introduced during the trial.

How about next time I'm on a civil jury I base my damages award against the corporate defendant on an essay I read written by Ralph Nader? Anybody have an objection?

Posted by: DK | Jan 9, 2009 9:04:59 PM

Several folks have said something to the effect that, at the sentencing phase, "the law should be almost irrelevant. And facts only somewhat more relevant. Death is ultimately an ethical judgement . . . ." or "questions [haved] moved beyond merely legal-factual and into the realm of ethics and morality." Counterintuitive though it may be, however, the Court's DP jurisprudence largely cuts in the other direction.

In fact, a system in which the death/non-death decision is left more or less entirely to the jury's unconstrained moral judgment is clearly unconstitutional under the Supreme Court's interpretation of the Eighth Amendment. Indeed, a large part of the history of DP Eighth Amendment litigation since Gregg v. Georgia is the history of (more or less ineffectual) attempts by the Court to guide, cabin, or constrain jury discretion---with the constitutional justification being that, otherwise, we couldn't really tell the difference between a jury's exercise of moral judgment, a decision to impose death based on improper, invidious factors, and/or an arbitrary coin flip. [Of course, in typical schizoid DP fashion, there is another line of cases creating tension by insisting that the defendant must have the opportunity to seek an individualized judgment from the jury based on consideration of any and all mitigating factors. That line resists attempts to guide juror's discretion *too* much, at least in the direction of death. But that is another story.]

At any rate, the result of this Eighth Amendment doctrine is that we now try to describe the DP jury's job at sentencing in very specific, technical terms---Do you find X, Y, or Z specific aggravator unanimously beyond a reasonable doubt? If not, stop. If so, continue to consider whether any mitigating factors have been proven. (You don't have to be unanimous about those.) Got your mitigators straight? Good. Now, balance them against the aggravator(s) and determine, beyond a reasonable doubt, whether the aggravators that you all found unanimously and beyond a reasonable doubt (and only those aggravators) "outweigh" any mitigators you individually find to exist. Etcetera.

My point is this: Whether or not it is correct as a matter of reality to say that the process requires the jury to make an inchoate moral call that just can't be broken down logically, we spend a lot of doctrinal and litigation resources insisting that it isn't so. Therefore, the idea that consideration of Scripture is non-problematic because the whole thing is just an irreducible moral/ethical judgment call is not going to be a strong argument under current law.

Posted by: Observer | Jan 9, 2009 9:09:37 PM

Good. Now, balance them against the aggravator(s) and determine,
beyond a reasonable doubt, whether the aggravators that you all found unanimously and beyond a reasonable doubt (and only those aggravators) "outweigh"
any mitigators you individually find to exist. Etcetera.


Up until this point the law and facts are relevant, but if this is the actual standard I would view it as an admission that final point of jury consideration is one that is almost entirely ethical in nature.

Posted by: Soronel Haetir | Jan 10, 2009 12:16:56 AM

let's put this discussion into a focus on reality.

During jury selection in my last capital case, several jurors said that they could not put aside their religious beliefs that if a person killed someone they should be killed, and follow the law as the judge gave it to them. Those persons should not be on a jury, just as people who believe, based on their religious beliefs, they would never vote to impose death regardless of the evidence in the case. This issue is as simple to me as the notion that we don't allow someone to play the game who is committed to not playing by the rules.

One of my favorite stories is about Brandeis dropping Holmes off one day at the Supreme Court and Brandeis told Holmes, "go do justice today." and Holmes responded, "I just try to play the game by the rules."

Bruce Cunningham

Posted by: | Jan 10, 2009 5:20:08 AM

BruceC: I disagree... this is a deliberation issue, not a voir dire issue. I'm sure everyone agrees with your summary of who should serve on capital juries based on their ability to play by the rules. And any competent lawyer will ask those questions during voir dire. There's a reason voir dire in capital cases takes several days, where voir dire in a DWI case takes an hour (per side - assuming the judge is kind enough to give you that much time). That obfuscates the issue, it does not put it into focus.

The issue here is when some pompous juror, who said he/she could follow the rules, pulls out a copy of the Bible and "reminds" the other jurors, while deciding life or death, their interpretation of God's view on the matter (which 10 times out of 10 is anti-defendant). "It's an important decision, shouldn't we take the word of God into consideration?" (Which word of which god from which book on which day based on which person's interpretation?) Well gosh-jee, deciding whether or not to kill someone is an important decision, so it sure sounds reasonable to take the word of God into consideration! Yes! And god says what on the matter? I'll bet the person who has the gall to carry a Bible around with him knows of a place to turn in the book to find a plausible answer....

Most jurors (because most people), especially in a state like Texas, consider the Bible to be something more than just a bunch of old fairytales written by old, stupid, ignorant men thousands of years ago. They see it as more than a copy of L. Ron Hubbard's Dianetics (though a minority considers that to be as reverant as the Bible). Therein lies the problem. The "word of god" should have nothing to do with capital sentencing decisions. Ideally the jurors who can't do one without the other will be struck during voir dire. But that doesn't mean one of the jurors isn't going to pull out a bible - a source of information not provided by the court - and preach his/her opinion of what God wants to the other jurors.

And it should not be on the back of the defense lawyer to ask the jury pool, "who here carries a Bible with them, and if so, are you willing to leave it with the bailiff if you're picked to serve on this jury?" Offending every religious person in the room by implying that the bible is something that's so dirty it shouldn't be brought into the courtroom.

Of course, it is, and it's a testament to the violence, irrationality, unfairness, and stupidity of the Bible that prosecutors have no problem with jurors referring to it, but defendants find it unfair. Don't tell me the Bible is the "basis of our law" beacuse it's not. Much like a crime victim, a bible shouldn't be located within a mile of a criminal trial unless it's been subpoenaed to testify.

Posted by: BruceM | Jan 10, 2009 4:02:08 PM

"several days " of voir dire in a capital case? In my last trial the voir dire lasted several months, primarily because of the death qualification process. As I recall, we went through 177 jurors before getting 12 who could set aside their religious, moral, personal, etc. beliefs on capital punishment, as well as preconceived notions of the case, and judge the case based upon the evidence presented.


Posted by: | Jan 11, 2009 10:35:52 AM

BruceC: Ahh to do capital cases in states other that texas, and in counties other than Harris, where every judge is a former prosecutor (half of texas's huge death row came from one of texas's 254 counties - Harris). It must be nice to have voir dire last several months rather than a 4-5 days.

I wish I could tell you the average length of a capital voir dire in Harris County (or even texas for that matter - no texas judge is going to waste several months on picking a jury). There's a reason Texas executes so many people, and it's not because we're more death thirsty than people in other states. There have been texas capital cases where appointed counsel picked a jury in an afternoon.

I do not do capital cases. I won't do them, won't take them, won't participate in them. If I screwed up, I couldn't live with myself. Prison can be undone, death cannot.

I've got oral argument on a 2255 before the 5th circuit in 3 weeks on a rare (noncap) case where defense counsel royally fucked up, and had the backbone to admit it and give testimony to that effect. I don't see why more defense lawyers are willing to come forward and admit they gave ineffective assistance. Yeah it's a shot to one's ego, but it's not like you're going to be disbarred or sued for malpractice - in every state I know of, the proximate cause of the guilty verdict is the commission of the crime itself, not counsel's mistake, so it's nearly impossible to sue a defense lawyer for malpractice during a criminal trial where one was found guilty. If I screwed up on a case, I'd fall on my sword and admit it. I've never had anyone habeas me for ineffective assistance, but I'm sure it will happen (rightly or wrongly) one day, and I'd have no problem admitting I made a mistake - especially if doing so will help my (former) client. But most lawyers huff and haw and say their missed objection was indeed "trial strategy" ... why? Come on....

The good news is that in the last election, about half of the republican prosecutor-judges in Harris County lost and were replaced by democrats who are, for the most part, not ex-prosecutors. District Judge should not be the highest position in the DA's office. The new judges were just sworn in, and I'm hoping that we'll have multi-month voir dires in Harris County capital cases now. We also have a new DA, as Chuck Rosenthal, the disgraced former DA who proscuted everything he could, resigned in disgrace over a sex scandal.

Posted by: BruceM | Jan 11, 2009 3:28:53 PM

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