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March 1, 2018

Will strong religious liberty advocates rally for Mennonite investigator jailed for refusing to testify in Colorado capital case?

The question in the title of this post is prompted by this remarkable story from the Denver Post headlined "Mennonite investigator sent to jail after refusing to testify in Robert Ray death penalty hearing: Lawyer for Greta Lindecrantz says she is being punished for long-standing religious beliefs." Here are the basics:

A 67-year-old Mennonite woman spent a second day in the Arapahoe County jail Tuesday after she refused to testify for the prosecution in a death penalty case. Greta Lindecrantz on Tuesday morning was found in contempt of court after she told District Judge Michelle Amico she would not answer questions in the witness stand because of her religious beliefs. Lindecrantz has been called to testify on behalf of the prosecution in an appeals hearing for Robert Ray, who was sentenced to death in 2009 for ordering the murder of Javad Marshall-Fields and Vivian Wolfe, who were witnesses in another murder case.

Lindecrantz worked as an investigator for Ray’s defense team, but those attorneys have not called her as a witness. However, the prosecution wants to question her about her work during the investigation and original trial, said her attorney, Mari Newman. All of her work already is a part of the official court record and there really is no reason for her to take the stand again, she said.

Lindecrantz sat in the courtroom wearing an orange jumpsuit with her hands shackled as Newman argued that she should be released because she is being punished by the courts for religious beliefs. Testifying would go against her moral and religious views, Newman said. “Imprisonment has not been effective,” Newman said. “It will not be effective tomorrow.”

But Amico said she had made her decision and was sticking to it. She told Newman she could appeal to a higher court. Until then, Lindecrantz would go back to jail. “It was a difficult decision for the court to make (Monday),” Amico said. Newman had asked for a lesser punishment, but Amico responded, “How would less punishment be effective? I’ve imposed jail and she’s still refusing to testify.”

After the hearing, Newman gathered on the courthouse lawn with Lindecrantz’s husband, Dave Sidwell, and supporters from the metro area’s two Mennonite congregations. “She has a fundamental religious belief against the killing of other human beings and specifically against state-sanctioned killing in the form of the death penalty,” Newman said. “She has refused to testify as a witness called by the prosecution — and the reason, the one and only reason she’s refused to testify, is because to do so would violate her firmly held religious beliefs against the death penalty.”

Because of her religious conviction, Lindecrantz has two choices — stay in jail or abandon her faith, Newman said. On Monday night, Lindecratz was in a cell with nine women, some of whom were sick all night because they were detoxing from drugs. Lindecrantz is old enough to be those women’s mothers, she said. “For the court to imprison her until she is broken, until her will is broken, and she abandons her faith and her view that she cannot participate in state-sanctioned killing is an abomination,” Newman said.

Sidwell, who also is a Mennonite, said he supported his wife’s stand, saying they both were adamantly opposed to the death penalty. “She’s not going to change her mind,” Sidwell said. “It’s, to me, a pointless pursuit.”

The Rev. Vern Rempel, pastor of Beloved Community Mennonite Church in Englewood, said he counseled Lindecrantz over the weekend about what she would do when called to the stand Monday morning. Those discussions included figuring out a way that Lindecrantz could comply with the courts without betraying her religious conviction. On Sunday, the congregation gathered around Lindecrantz to pray over the decision. “On Sunday, she said she had clarity and was ready to do this,” he said. “Really, we felt the strength of her commitment.”

Mennonite opposition to the death penalty dates to 1525, Rempel said. “This is not something that is not a mood of Greta’s,” he said. “Or a fancy. Or something she’s making up. It has been a lifetime commitment for her.”

While Lindecrantz is spending her second night in jail, the legal drama has been playing since Jan. 20, when Newman first filed a motion in an attempt to keep her client off the witness stand. But Amico repeatedly denied the motion, saying in an order written on Feb. 16 that allowing people to refuse to participate in death penalty cases on religious grounds would disrupt the justice system. Religious-based capital defense teams would be able to refuse to follow proceedings, rules and laws based on those grounds, Amico wrote. It would create an “absurd and unworkable result” for death penalty cases in Colorado.

Because of the politics involved, I am inclined to guess that the folks who eager to support, on religious liberty grounds, those resisting laws restricting displays of religious items on public lands or laws concerning certain medical procedures will not be quite as quick to get behind this particular form of legal resistance based on sincere religious beliefs. (And, by the same political token, I suspect those usually critical of legal resistance based on religious liberty claims may not be so critical of the claim in this setting.)

March 1, 2018 at 11:29 AM | Permalink


The issue of refusal to testify on 1A grounds usually pops up in the context of journalism and though a constitutional claim was rejected years back, there are various state (last I checked, every state but one has some sort of rule; don't know if the 50th has a policy) and federal (at least as a matter of policy) rules in place to provide some protection. The general rule to me should be that stricter tests of need should be applied before requiring people to testify. Not an absolute bar but higher.

I don't know the facts here but am rather doubtful she was necessary enough for their case that things should be pushed this far. I would believe the same thing if the defense wanted to talk to such a person.

Posted by: Joe | Mar 1, 2018 11:59:34 AM

BTW, I also saw this story cited on Religious Clause Blog, which is a helpful resource.

Posted by: Joe | Mar 1, 2018 12:00:34 PM

Off topic: Trump announces US Sentencing Commission nominees ... one name in particular should look familiar to long time readers.

Posted by: Joe | Mar 1, 2018 1:11:20 PM

Joe. I tried to leave this boring, and repetitive blog. He asked me to return.

Posted by: David Behar | Mar 1, 2018 1:59:48 PM

I do not understand the religious objection. The lady will be asked to tell the facts and the truth as she knows them. How is this a violation of her Mennonite beliefs? She will not be asked to engage in any objectionable violence.

She should be told that if she refuses to testify, it will be assumed all her testimony will be adverse to the defendant. This is the remedy to the destruction of evidence.

Posted by: David Behar | Mar 1, 2018 2:02:18 PM

David, for the record, I did not “ask” you to return. I told you I would not bar you as have so many other sites, while hoping your comments would be sober and cogent, not rants filled with invectives.

Posted by: Doug B. | Mar 1, 2018 2:09:54 PM

The logic of this witness has become all too common in religious liberty claims. This witness does not generally object to testifying on religious grounds or object to the obligation to testify truthfully. She objects to the fact that her truthful testimony will allow the State to prevail which will lead to an execution which she opposes. I don't think that a religious objection that I don't want to testify because I object to the law that governs the court's decision is not an objection that needs to be recognized. Even under the Religious Freedom Restoration Act, the interest of the government in a fact-finder receiving relevant testimony on a case is a compelling one and there does not appear to be any way that the court could accommodate her belief and still fulfill that interest (unlike the case in which a witness is allowed to affirm rather than swear that they will tell the truth because swearing is objectionable under their religion).

While the witness may believe that all of the issues are adequately covered by her previous testimony that is an issue for the court and the prosecutors to decide. (And the story does not describe the prior testimony -- specifically whether she was a witness at trial testifying about a specific part of the investigation or whether she was a witness at a prior collateral review hearing testifying about whether certain things were done in the investigation.) Contrary to Joe, I assume that if a hearing is being held, the issues in this hearing are different than the issues in any prior hearing or testimony and the investigator's prior testimony is not adequate to cover these issues. For example, at trial, an investigator might be called to lay the foundation for certain exhibits or to impeach a witness with prior statements. At an initial IAC hearing, the investigator might testify about her efforts to find Jane Doe. Such testimony would not necessarily alleviate the need for her to testify at a second hearing about what records she obtained from certain agencies and whether she was requested to look for additional records.

Posted by: tmm | Mar 1, 2018 6:01:32 PM

"the issues in this hearing are different than the issues in any prior hearing or testimony and the investigator's prior testimony is not adequate to cover these issues"

Again, I don't know the facts, so am quite open to the idea that her testimony is very important. And, I too am wary about religious claims that go too far. But, I didn't say I disagreed with the first part. As to the second, my doubts is that this SPECIFIC person's testimony is necessary. As compared to getting the same thing some other way. The "mights" here underline tmm isn't sure either but I'm open to the idea surely.

Posted by: Joe | Mar 1, 2018 9:59:06 PM

Doug. Bill asked me to return. I know you did not.

Posted by: David Behar | Mar 2, 2018 2:43:28 PM

TMM. It is uncertain if the state will commit objectionable violence. Perhaps, it will give the defendant community service and a fine. It is unknown if forgiveness for the defendant will not foreseeably result in his violence against another. If a Mennonite pastor is counseling resistance to testimony, is he suborning contempt of court?

The best tactic is to drop her testimony, and to look for other evidence. I would not waste time or money coercing this witness into testifying. Her martyrdom would bring pointless opprobrium on the court from the fraction of people who are registered Democrats.

Posted by: David Behar | Mar 2, 2018 3:01:48 PM

tmm, I think the only colorable argument is whether it's for the prosecutor to decide. The specific issue of narrow tailoring could be determined by the content of the evidence rather than the broad category of "testifying." Would the ability to use prior testimony be sufficient to satisfy the government's compelling interest.

I personally am skeptical of these broad RFRA claims, but that seems to be the one to tackle.

Posted by: Erik M | Mar 7, 2018 10:58:14 AM

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