« Lots of sentencing due process talk from the Third Circuit | Main | Back-to-school musings: teaching sentencing »

September 10, 2007

Another big circuit discussion of Bible-influenced capital sentencing

Addressing en banc an issue that arises frequently in lower courts, the Ninth Circuit today upheld a death sentence in Fields v. Brown, No. 00-99005 (9th Cir. Sept. 10, 2007) (available here), despite the jury's consideration of biblical passages while deciding upon the defendant's penalty.  The length opinions in Fields all make for interesting reading, but you will need almost 100 pages in your printer if you want a hard-copy of the Ninth Circuit's en banc work.

As detailed in posts linked below, lower courts have split over the consequences of juror consideration of biblical passages during the penalty phase of a capital trial.  It will thus be interesting to see if Fields might get Supreme Court attention.  If it does, the defendant might set a modern record for the length of capital appeals: his death sentence was imposed in 1979 and thus his appeals have occupied state and federal courts now for 28 years.

Some related prior posts:

September 10, 2007 at 03:26 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Another big circuit discussion of Bible-influenced capital sentencing:

» An Eye For An Eye and An Appeal for An Appeal from A Stitch in Haste
I am on record as opposing jury nullification. It subverts the rule of law, usually requires violating a sworn oath, and can just as easily be used for ill as well as for good.... [Read More]

Tracked on Sep 10, 2007 9:35:47 PM


This whole Bible thing is a silly issue. Jurors should be allowed to bring their life experiences to bear on the ultimately moral judgment of a capital offender's blameworthiness. It's that simple. An "eye for an eye" etc. is more than a part of a religious text, it is a fundamental part of our society's common heritage and, more importantly, a source of moral guidance for many in our society. And why are Christian teachings suspect, whereas other moral teachers (e.g., John Stuart Mill) would presumably not be?

If society is going to trust jurors to make these decisions, then it seems to me that background knowledge and beliefs have to be allowed to come into play here. Many Americans have been brought up with the teachings of Christianity--these teachings are going to have an influence in our jury box--so why is it that if they are discussed openly, there is a problem. Would a verdict be tainted simply because a person said, even repeatedly, "an eye for an eye"? Why would it be? What if a juror quoted John Stuart Mill--why is that any different? Are Christians, who presumably are guided by faith supposed to keep quiet about a central part of their lives when making a moral judgment? What kind of rule is that?

I am an atheist, perhaps my outlook, which is, in a sense, religious in that I think that when you die, you die, and that's it. That view greatly influences my belief in capital punishment because I view the deliberate taking of an innocent life as such a deprivation that for most murders, capital punishment is the only proper response. Presumably, if I made that sort of argument in jury deliberations, there would be no issue, but the belief that there is no afterlife (an unknowable thing) is every bit as religious as "an eye for an eye" (actually, probably more so). So why would an atheist get to make my argument, yet a Christian would not get to make the "eye for an eye" argument?

Posted by: federalist | Sep 10, 2007 3:58:01 PM

I agree with federalist and would just note that if the courts want "evolving standards of decency" and "moral consensus" to mean anything, than they need to give deference to the People's notion of what those things mean. Folks might disagree about religion, but surely the common man or woman's perception and values of morality mean something in a country based upon democratic principles.

Posted by: | Sep 10, 2007 4:14:43 PM

Just checking, federalist: Would it be O.K. for jurors to make a death-penalty decision based on the Koran?

Posted by: AFPD | Sep 10, 2007 5:57:22 PM

I cannot believe this. I actually believe some of what federalist said. Of course, there are disagreement. I have served on 4 jury panels and I do not trust them. Some of these people lies about their prejudices, lies that they don't know any law enforcement officers, etc... Why should an atheist (hypothetically speaking) be tried by bible thumper. To quote a bible to influence people to vote your way is wrong.You are suppose to apply the laws of that state and instruction given by the judge. How far are we away from letting religion rules our lives. Hell, stop this planet and let me off. This planet has gone nuts!

Posted by: | Sep 10, 2007 6:18:20 PM

Perhaps the bailiff should hand each juror a copy of Nietzsche's Beyond Good and Evil as they retire to argue, er, deliberate.

The reason the Bible is not relevant is because it is not evidence. The state already has the advantage because those who do not believe in the death penalty are excluded. Those who remain on the jury because they can vote for death should not be thumping each other with stuff, the Bible or anything else, that is not evidence. It is possible to say what you believe, what your life experiences are, without bringing the Bible into it. For many, the Bible is a greater authority than the judge or even the Constitution.

Posted by: George | Sep 10, 2007 9:50:34 PM


I don't get it. Biblical evidence -- such as every major christian denomination save the SBC opposing the death penalty -- is inadmissible before the jury in sentencing and yet somehow it should be outcome determinative if the jury decides it should. Wouldn't it be easier just to return to trial by endurance?

Posted by: karl | Sep 10, 2007 9:52:13 PM

Karl, that is a complete mischaracterization of what I have said. The Bible cannot be evidence, and prosecutors (i.e., state officials) shouldn't make arguments based on "The Bible tells me so". But that's not the issue, and you know it. The issue is what moral judgments juries can bring to bear on whether to sentence a killer to death. That is a profoundly moral question, and, in my view, jurors can refer to their Christian beliefs (or for that matter, their beliefs rooted in the Koran. Obviously, a jury deliberation shouldn't be a session in a madrassa or Sunday school, but reference to Scripture in deliberation, just like reference to beliefs such as my own, cannot be banned from the jury box.

Why, though, am I not surprised at Karl's disingenuousness?

Posted by: federalist | Sep 10, 2007 11:33:40 PM


Juries are supposed to follow the law, not go exploring what it might deem a higher moral law. That is the essence of why we have death / life qualification of juries. Indeed, most christians if they strictly followed the teachings of their church, would not be permitted to sit on a jury.

Put another way, to allow Bible lecturing in the jury room, which is what the opinion invites, means that the law of capital sentencing is irrelevant to the jury deliberations.

A jury is more than welcome to make an informed moral deliberation, however, as the opinion makes clear, that isn't what happened. As Anne Reed at Deliberations makes clear (http://jurylaw.typepad.com/deliberations/2007/09/the-bible-in-th.html) this was well, well beyond the Pale.

Expect cert.

Posted by: karl | Sep 11, 2007 12:45:53 AM

Well, Karl, then we have a situation where John Stuart Mill can be discussed openly, but the Bible cannot. Interesting--maybe that's some more "play in the joints", which allows states to restrict generally available scholarships to non-theological majors.

And your calling this Biblical evidence is beyond silly. It's not "evidence", and you know it.

And Karl, these are jurors. Most don't read capital habeas opinions in their spare time--so there is no inviting here. Juries, are, to a certain extent beyond the control of the government (that's the beauty of them). Are we going to toss capital convictions every time an "eye for an eye" is mentioned? These people all took an oath. They should be presumed to have followed it, despite what matters they discussed. Remember, people bring to bear their moral judgment on the decision they make. How much mitigation; how much aggravation, etc. And jurors can call upon their religion to help them make that moral decision, or are we going to toss jury verdicts if a juror said that he or she prayed on the decision.

Karl, it's amazing, you'll swallow whole some BS story about racist 17 year olds and self-defense (despite the fact that the victims' bodies were found over a football field apart), yet abjectly refuse to trust your fellow citizens (who have not been convicted of any crime) to follow an oath. I guess it really is whatever benefits a capital defendant at any time, isn't it? Isn't there a "Mumia is Innocent" rally for you to attend? Or maybe you want to test Roger Coleman's case one more time? Doesn't Kevin Cooper's defense team need another body to chase down the real killers?

Somehow I doubt cert. is going to be granted. There are Teague issues here, and this is a pretty brutal case.

Posted by: federalist | Sep 11, 2007 2:05:50 AM

Guys, back up. This isn’t able the bible, but about bringing in any books and consulting them. Unfortunately, if a jury were to bring in a book which in no uncertain terms says that one that participates in a death sentence is going to hell, its decision is simply unreviewable. Whether or not it is more or less brutal doesn’t matter for cert. Teague issue do matter.

Posted by: S.cotus | Sep 11, 2007 6:55:35 AM

"Well, Karl, then we have a situation where John Stuart Mill can be discussed openly, but the Bible cannot."

So what? The Bible is a holy book that many folks think is not just a helpful collection of moral guidance but the revealed word of a creator whom exercises the power to condemn those who don't follow The Book to an eternity of torment. Mill was a man, whose arguments most people can imagine examining critically. They don't carry the same amount of persuasive weight in the hearts/minds of lots of people. I don't see the problem excluding only one from jury deliberations that are, in theory at least, based on the law and evidence presented during trial.

Posted by: JDB | Sep 11, 2007 8:07:58 AM

In California, if a prospective juror indicates that he or she believes in an "eye for an eye" that juror has essentially stated that if you kill someone you must then die. That would mean that the juror would be incapable of considering mitigating evidence. A challenge for cause should exclude such a "pro-death" juror, as he or she is incapable of considering a verdict of life.

Posted by: bk | Sep 11, 2007 12:32:27 PM

Bk, that's just plain wrong--the issue is whether they follow the law--despite their views. However, "an eye for an eye" is proper to think about when making the moral judgment of whether someone should be condemned.

And S.cotus, the facts matter sometimes . . . .

JDB, the bottom line is that your rule of "no Bible" is just plain unworkable. Are we really going to toss sentences where someone says "an eye for an eye"? No. We are not.

Posted by: federalist | Sep 11, 2007 12:46:22 PM

Facts are whatever one party can get away with. Sometimes this results in the state killing someone.

As stated above, jurisdictions do exclude jurors that say “An eye for an eye.” As the above commentator pointed out this is a statement by the juror that they will not follow the law. However, this statement is made prior to the jury being empaneled and, as such, subject to far greater scrutiny.

Posted by: S.cotus | Sep 11, 2007 1:23:07 PM

"JDB, the bottom line is that your rule of "no Bible" is just plain unworkable."

In a practical sense, yes. But so is any rule relating to jury deliberations, since generally you can't get into what happened in the jury room once the verdict is in. It's equally impossible to ensure that the jurors apply a presumption of innocence and only vote guilty if the evidence is sufficient beyond a reasonable doubt. Doesn't mean we shouldn't at least play lip service to how deliberations should work.

Posted by: JDB | Sep 11, 2007 3:42:35 PM

Lip service is fine . . . . reversals are not. And isn't that what happened here--there was lip service.

Posted by: federalist | Sep 11, 2007 4:25:46 PM


Have you ever tried a death penalty case in California? Your answer demonstrates plainly that you have no understanding of capital case litigation. Had those words been spoken during voir dire ("eye for an eye") even the pro prosecution, pro death penalty California Supreme Court would have reversed the case (Fields is a California case).
If someone believes if you kill you must die, how can one follow the law. You cannot be open to Skipper evidence, you cannot be open to any kind of mitigation, you, therefore, cannot follow the law.

Posted by: bk | Sep 11, 2007 5:06:29 PM

Uh, so bk, what you're saying is that Christians who believe in the "eye for an eye" command but who say that they can set that aside and follow the law are categorically barred from serving on a death jury? That seems very problematic, as is the conclusion that because they believe in "eye for an eye" they are per se incapable of setting that belief aside.

That seems a stretch . . . .

Posted by: federalist | Sep 11, 2007 5:36:30 PM

What I am saying is that people who believe in an "eye for an eye" cannot honestly weigh the aggravating and mitigating circumstances because they believe that if you kill you must die. That means they cannot met the Witt/Witherspoon test to be death qualified.
You still have not answered my question, have you tried a death case in California (or have you ever tried a criminal case in which you voir dired a jury).
If you have you will know that the two largest group of liars are jurors who want to sit on a case and police officers who believe they are doing "the lord's" work.

Posted by: bk | Sep 11, 2007 6:00:32 PM

No I don't do capital litigation in Cali or anywhere.

The blanket statement that those who believe in an "eye for an eye" cannot uphold their oaths as jurors is silly, and you don't have to voir dire jurors in a criminal case to know that. If that view is enshrined in California law, I would be surprised.

Posted by: federalist | Sep 11, 2007 6:10:46 PM

In every capital case that I have tried in California, every prospective juror who has said that they believed in "an eye for an eye" has been excused for cause after voir dire because they cannot consider mitigating evidence. It is not silly.
What you do not understand is that people are who they are. A jury who believes in an eye for an eye cannot follow the law even if they say they will.
Questioning will expose the prospective juror and demonstrate that he cannot sit on a capital jury.

Posted by: bk | Sep 11, 2007 6:31:51 PM


Not to pry, but have you ever tried a jury trial of any kind, in any court?

Posted by: jh | Sep 11, 2007 6:45:00 PM

Nope. But this idea that because someone believes in the Old Testament "eye for eye" is automatically excusable for cause is silly. That may be what trial courts do in the work-a-day world because they don't want issues on appeal, but it is by no means a federal constitutional command. And the idea that a juror who "believes in an eye for an eye cannot follow the law even if they say they will" is bigotry. Pure bigotry.

We do a lot of things in life that don't comport with our beliefs if we have a duty to do so. I comply with laws I don't agree with. Christians, even Old Testament types, shouldn't be automatically presumed to be unable to fulfill their oaths as jurors. To make such a presumption is wrong.

Posted by: federalist | Sep 11, 2007 7:08:47 PM


You had to ask?

Posted by: karl | Sep 11, 2007 11:00:48 PM

Funny how in all this calumny and ad hominem, no one can point to a case where it was held that because a venireman stated that he believed in an "eye for an eye" such venireman could not therefore be trusted to follow his oath.

And Karl, I think Romell Broom needs some help smearing his victim--that's right up your alley. I am surprised I don't see a post on your website smearing the 14 year old victim in the Broom case like you did Lonnie Johnson's victims.

But hey, what's the truth to you--there are vicious killers that need to be helped.

Posted by: federalist | Sep 11, 2007 11:25:35 PM


Umm, I would respectfully suggest you learn a little something about death & life qualification in jury selection, specifically, one of Witherspoon's progeny, Witt & Morgan (and again those cases progeny)which bars such jurors.

As for victim smearing, I don't engage in it. Specifically, as to the Lonnie Johnson case I believed his statement, and by necessity reached certain conclusions about the decedents that you apparently aren't happy with.

Posted by: karl | Sep 11, 2007 11:44:52 PM

the first sentence of that last post should have read

. . . specifically, two of Witherspoon's progeny, Witt & Morgan (and again those cases progeny)which bars such jurors.

Posted by: karl | Sep 11, 2007 11:52:38 PM

Um, Karl, perhaps I am missing something, but a person who believes in "an eye for an eye", but who can put aside such beliefs and follow his oath as a juror does not get barred by Morgan or Witt or any progeny that I could find. The issue is whether their ability to apply the law would be "substantially impaired". There is nothing in those cases that I could find which would support the per se rule that you espouse. Clearly, Morgan gives counsel wide latitude in ferreting out whether there would be substantial impairment, but no one is arguing that point, nor is anyone arguing for a Christian exemption from the obligation to follow one's oath.

So where do you get this view that belief in an "eye for an eye" results in the automatic exclusion from a capital jury?

As for Lonnie Johnson, you swallow whole a story about some guy acting in self-defense despite the fact that the victims were found more than a football field away from each other. That puts you in true-believer land. Thankfully, the courts saw through that BS, and Johnson was executed.

Posted by: federalist | Sep 12, 2007 12:44:03 AM

Just to be clear, "Federalist" is likely not "Feddie" of Southern Appeal fame.

Posted by: S.cotus | Sep 12, 2007 8:15:13 AM


Ummm, yes, my sincerest apology to the unintended slam on feddie.

Posted by: karl | Sep 12, 2007 9:34:53 AM

Well, Karl, whether you wish to slam me or not, I think I have read Morgan correctly--do you disagree, or do you still think, mister capital defense lawyer, that Morgan erects a per se rule that belief in an "eye for an eye" automatically disqualifies a venireman for a capital jury?

Posted by: federalist | Sep 12, 2007 10:03:23 AM

Geez fellows, even I, who is not a lawyer knows that serious religious people who believe in "an eye for an eye" can not be partial. If and only if they can put aside their religious belief they may be partial. But why would I take a chance leaving my life in their hand? Federalist, since you haven't tried a case capital case, I wondered if you ever sat on a jury panel. Believe me you would be shocked (maybe not you but most people would be)the things these people says and talked about. You can get a panel who will hang you out to dry based on their prejudices, religious belief, etc.... But it's possible you may get a panel who really look at the evidences and be partial. (a very rare panel indeed.)

Posted by: | Sep 12, 2007 1:04:49 PM


That's bigotry.

Posted by: federalist | Sep 12, 2007 1:21:01 PM

It's funny how commenters like to change the fact pattern and then argue about it. The juror didn't just say an eye for an eye. He went home from the first day of deliberations, pulled out his Bible, and found 7 quotes that supported the death penalty. He wrote them down and passed them around to his fellow jurors as part of his list of pros and cons. That's a far cry from what most of y'all are debating.

Posted by: RL | Sep 12, 2007 1:27:39 PM

Okay, let’s take a step back:

Imagine a hypothetical voir dire:

Q: Now, sir, what are your views on the death penalty?
A: I believe in an eye for an eye and a tooth for a tooth? The bible says that in the Book of Dodecahedron.

Q: Does that mean in all cases that someone is killed, another person must be killed to make up for that killing?
A: Yes. But, I acknowledge that the killing must be done by the state?

Q: If the judge were to instruct you otherwise, and give you specific instructions about when the death penalty is warranted, could you put aside the Book of Dodecahedron and follow the law as he gives it to you?
A: I don’t know. Maybe. What do I have to say to get on the jury?

This seems to be saying that the individual is simply unqualified to serve. He not only seems unwilling to consider mitigating factors, but also seems unwilling to even listen to evidence on mental state. So, he is as good as a juror that says this?

Q: What are your views on shoplifting?
A: I think it is every man’s inherent right to steal crap? It says that in the Book of Dodecahedron.

Q: If the judge were to instruct you otherwise, and give you specific instructions about when a verdict of guilt is warranted, would you consider them regardless of what the Book of Dodecahedron says?
A: I don’t know. Maybe. What do I have to say to get on the jury? Do they have calculators in the jury room?

Posted by: S.cotus | Sep 12, 2007 1:33:19 PM

What, S.cotus, no authority to advance your argument? And Karl, is my Morgan analysis wrong?

Posted by: federalist | Sep 12, 2007 2:45:40 PM

I don't have any appellate authority here, because, as I understand it, nobody has ever told a judge "I can't set my beliefs aside" and the judge denied a for-cause challenge. Instead, they always DO tell the judge this, and it comes down to a credibility call.

Posted by: S.cotus | Sep 12, 2007 3:09:46 PM

And S.cotus, isn't that what I've been saying all along--the issue is whether they can follow their oath (i.e., set aside their beliefs), and there's no authority for the per se rule people have advanced here . . . .

And I'm surprised that you haven't demanded appellate authority from karl and the gang

Posted by: federalist | Sep 12, 2007 3:17:15 PM

I am not quibbling with you on this.

Posted by: S.cotus | Sep 12, 2007 3:27:56 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB