Monday, July 21, 2008

Three guys who couldn't be on a Harris County jury: Moses, Jesus, and the Apostle Paul

Houston criminal defense attorney Mark Bennett says one question Harris County prosecutors are particularly fond of asking prospective jurors during voir dire is:
If we only present one witness, but based on that witness’s testimony you believe beyond a reasonable doubt that the defendant is guilty, can you convict him?
After which, "The prosecutors then gleefully challenge, for cause, all of the jurors who say 'no.'”

In the comments I pointed out that the Bible, Old Testament and New, says no one should be convicted for any crime except on the testimony of “two or three” witnesses. Moses (Deut. 19:15), Jesus (Matt. 18:15-16), and the Apostle Paul (2 Corinthians 13:1) were the ones who laid down the “two or three” witnesses rule, so none of them could serve on a Harris County jury if they were alive today and honestly answered that question! The same goes for modern religious folk who believe as those men did. Further, I argued:
Even for those unaware of the biblical precedent, ... jurors know that anybody can make an error and that the decision before them is a serious one, while the ADA is engaging in gamesmanship at the expense of a fair jury.

Bottom line: The jurors struck are concerned about the possibility of convicting an innocent person. The prosecutors who ask the question are not.

A prosecutor in the comments took umbrage at Bennett's criticism, insisting that "just because it works and you don’t like it doesn’t make it unfair." What is meant, though, by "it works"? Apparently that the question keeps people with values similar to Moses, Jesus, and St. Paul from ever participating on a Harris County jury. Heaven knows where that kind of thing could lead!

33 comments:

Charlie O said...

I've been convinced for years that most prosecutors could care less WHO they convict (innocent or guilty), just so long as they get a conviction. This is typical America jurisprudence.

Ron in Houston said...

Well, there's no way Jesus would make it. Someone who believes in forgiving your enemies clearly can't consider the full range of punishment.

dudleysharp said...

Some speculate that God’s mandate for capital punishment is weak, because the requirement for two witnesses in such cases (Numbers 35:30; Deuteronomy 17:6) drastically reduces the application of that sanction. Such speculation is unwarranted. By wrongly isolating the Hebrew ‘ d, "witness", from its broad biblical context, some interpreters have falsely concluded that two or more "eye"witnesses are required in capital cases and in all criminal cases subject to court judgement (Deuteronomy 19:5). Did God want nearly all criminals, including murderers, to get off, scot-free, if " . . . (they) had not taken the prudent measure of committing (their) crime where two people did not happen to be watching him?" The biblical record rejects any such conclusion.

The word "witness", ‘ d, has broad meaning, including, anyone with (1) " . . . pertinent knowledge concerning the crime, even though he had not actually seen it."(Lev 5:1), such as motive, opportunity, accomplices, overheard confessions, wiretaps, etc.; (2) physical evidence can also bear witness, also ‘ d (Ex 22:13), such as bloody clothing, murder weapon, DNA, fingerprints, etc.; (3) written documents may serve as evidence and witness (‘ d or ‘ dah, Jos 25:25-27), such as a confession, documents showing motive or implication, etc.; (4) monuments and memorial stones, such as gal-‘ d in Gen 31:46-49, can also bear witness. Indeed, "there is no contravention of biblical principles in allowing such testimony, even though only one actual witness may be found, or none at all." There is no biblical requirement for two, or any, "eye" witnesses in criminal cases.(Dr. Gleason L. Archer, Encyclopedia of Biblical Difficulties, Zondervan Pub., 143-145, 1982, also see the exceptional writings on John 8:11, 371-373, therein.) According to actual biblical usage, the witness and evidence requirements in capital cases in the U.S. meet or exceed all biblical standards.

Anonymous said...

What kind of analysis are you making, Grits? What if there is video, audio, DNA, or other documentation that completely corroborates what the witness said? It sounds like you're saying the witnesses' testimony is the only evidence entered, given the prosecutors' question. Further, they didn't say the defense presents no witnesses or doesn't cross examine the prosecutors' one, lone witness. You're not using a complete interpretation of the question.

Are you saying that our courts systems should use Biblical Judeo-Christian values as their standards of practice?

Gritsforbreakfast said...

Dudley, the biblical prescription for two or more witnesses applies to all criminal actions, not just capital cases, particularly considering the New Testament verses.

What's more, this post wasn't about capital cases per se. My understanding is that the question is being asked in more mundane venues where corroboration is not necessarily required.

On its face, the question as Mark related it would ask jurors to be willing to convict without ANY corroboration at all, and thus violates the biblical standard even if you portray it more narrowly than the formal text.

To the last anon, where did I write "that our courts systems should use Biblical Judeo-Christian values as their standards of practice"? Having made no such claim, I feel little need to defend the position. Focus, please.

The question asks if the juror would be willing to convict based on the testimony of one witness, period, without mentioning corroboration of any sort. If it did mention other types of corroboration and wasn't just an attempt to trick jurors, the question wouldn't catch up nearly as many people.

Anonymous said...

What if there is only one "eyewitness" to the crime? The law doesn't require a set number of witnesses to testify. What if the juror would require 2, 3, 4, .....where do you stop?
What is your point other than to complain about a non-problem or whine about prosecutors?

Anonymous said...

At the end of the day you have to ask yourself ------ Which is more important, protection of individual rights or giving prosecutors more power to convict anyone cought up in their web.

Personally, I'm for protection of individual rights. Despite recent practice, protection of indivudual rights is the American way!

The cost of failing to protect individuals is far to high, not only in taxes but also in the harm to our free society.

dudleysharp said...

Scott:

I don't think you read my post.

The biblical scholar said there is no such thing as a requirement for two eyewitnesses.

Indeed, "there is no contravention of biblical principles in allowing such testimony, even though only one actual witness may be found, or none at all." There is no biblical requirement for two, or any, "eye" witnesses in criminal cases.

As he said some interpreters have falsely concluded that two or more "eye"witnesses are required in capital cases and in all criminal cases subject to court judgement.

Dr. Gleason L. Archer, Encyclopedia of Biblical Difficulties, Zondervan Pub., p 143-145, 1982

Anonymous said...

Surely you are not advocating the incorporation of Biblical law into our crimnal justice system. How about Sharia law? Or are you just cherry-picking the parts you like and ignoring the rest? Jesus wouldn't make the jury because he believes in capital murder for child abusers--actually death by drowning with a millstone around the neck.

Anonymous said...

"I feel little need to defend the position. Focus, please."

Grits, I didn't quote you. I asked what the implication of your post was. Your post implies that famous Judeo-Christian figures should be looked to as standards or guides for how criminal courts are administered. Your most recent comment leads me to think you don't want your visitors to read between the lines in this case, and you also don't allow for greater context in the prosecutor's question than your simple analysis, which is so "strongly" supported by Biblical precedence.

Why idealize the excessive entanglement of church and state in jury selections? If the prosecutor's question is bad in your opinion because it doesn't provide enough context to potential jurors who don't understand courtroom proceedings, a discussion along those lines is sufficient. To bring in the Biblical angle comes across as pandering and irrelevant.

Gritsforbreakfast said...

I didn't misinterpret you, Dudley.

The biblical framework still translates to modern courts. If you have forensic evidence, does the blood splatter or ballistics jump up on the stand and speak for itself? No, a witness presents it. Detectives testify to the evidence they find.

You're obfuscating the point by pretending I said EYEwitnesses were required. Neither I nor the biblical texts said so; it's a red herring. However you're dead wrong if you're contending the Bible does not require corroboration from more than one source for a conviction, whoever is the biblical scholar you're quoting.

To the person who thinks the biblical angle is "pandering and irrelevant," if that's how it comes off to you I'll bow to your judgment. To answer your question directly, I do not believe "that our courts systems should use Biblical Judeo-Christian values as their standards of practice." However I see no harm in identifying religious values prevalent among vast majorities of the citizenry that might contradict the assumptions behind the question.

Finally, to 11:43, the point is that jurors should not be excluded because they would require more evidence than one person's say so to secure a conviction. In fact, given what we now know about the frequency of faulty eyewitness identifications, etc., jurors who would require more evidence are right to demand corroboration beyond a single witness before convicting, and IMO the Code of Criminal Procedure should as well.

Anonymous said...

So, the police who arrive at a home where the wife has been physically battered by her husband, can't arrest him if he denies the assault absent other witnesses and physical evidence? They might arrest him but can they charge him if there's not a chance of conviction based on her testimony alone and his simple denial that he didn't do it?

Hey, Oswald said he didn't kill Kennedy.

Anonymous said...

"absent other witnesses -a-n-d- or physical evidence"

FTFY

If there is no corroborating evidence (like bruises) or witness, it should be an acquittal. He said/She said should not be enough in a criminal proceeding. There are many innocent people in prison because of a single false witness. And you rape dead babies. I don't have any evidence and there are no other witnesses, but by your standard my uncorroborated witness is enough for a conviction, right?

/<strike> is apparently not allowed :(

dudleysharp said...

Scott:

My apologies, I thought that you intended eye-witness.

If you are including experts in foresnics, as well as other evidence. you and I agree, again.

FYI, some translations have found that it is a requirement for 2-3 eyewitnesses.

Btw, I never interpreted your discussion as calling for biblical instruction for the courts.

Anonymous said...

Someone who believes in forgiving your enemies clearly can't consider the full range of punishment.

They make great Republicans, though.

dudleysharp said...

ANON writes: "Someone who believes in forgiving your enemies clearly can't consider the full range of punishment.They make great Republicans, though."

Ugh.

Such forgiveness is based upon individuals, not governments, which, instead, have an obligation to protect public order and to sanction wrongdoers.

Sister Helen Prejean: "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.

Anonymous said...

Ugh.

Such forgiveness is based upon individuals, not governments, which, instead, have an obligation to protect public order and to sanction wrongdoers.


Ugh.

My point was only that those who stick to the religious right are generally those acting in direct contravention to Jesus' teachings.

dudleysharp said...

ANON, that is very different than what I responded to, which was:

"Someone who believes in forgiving your enemies clearly can't consider the full range of punishment."

Obviously a false statement, opposed to the later opinion of

"My point was only that those who stick to the religious right are generally those acting in direct contravention to Jesus' teachings."

Totally different considerations.

Anonymous said...

Charlie O: "I've been convinced for years that most prosecutors could care less WHO they convict... so long as they get a conviction." Oh, really? And what startling studies have you done in order to make such a broad, sweeping statement?

As a matter of fact, I've been a prosecutor for 7 years, a judge for 12 and a criminal defense attorney for 8 years. I find that the vast majority of prosecutors and defense attorneys are honest professionals who fervently care about the quality of justice. I'm sure you would say that I'm prejudiced because I'm a part of the system of "typical America (sic) jurisprudence." Maybe so, but I'll wager my experience is more cogent than whatever it was that "convinced" you.

Joe Martin,
First Asst. D.A.
Polk County, Texas

dudleysharp said...

To Joe Martin:

That has been precisely my experience as well.

My expertise is the death penalty and, admittedly, that invovles super due process, but . . .

Possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review.
 
There is no proof of an innocent executed in the US, at least since 1900.
 
If we accept that the best predictor of future performance is past performance, we can reasonable conclude that the previous cases excluded by DNA will be discovered prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.
 
Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?
 
Unlikely.

Gritsforbreakfast said...

"Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?"

Dudley, the death penalty is very unsure because it's a political football. We've discussed before Kenneth McDuff - sentenced to death, the law changes and he's paroled. Killers sentenced to LWOP in other states during the same period remained incapacitated.

The death penalty is a certain punishment if several conditionals are met, and that's not always the case. LWOP is a more certain punishment from any historical perspective, by far.

I know you'll blame the judges or say if it'd happened sooner, etc., etc., but that's not the real world, where LWOP without question gives more surety and closure.

But as I've mentioned several times, this question is used in all cases, not just capital ones.

And to the 1:27 - that's right, if there's zero corroboration of any sort in a he said she said environment, no evidence of violence, etc., no one should be arrested. That's rarely if ever the case, however, if there's been actual violence.

To Joe Martin - I agree with you in part. There are definitely a few scoundrels, though, and more importantly I think a much larger number have internalized the gamesmanship mentality exhibited here and contribute to wrongful convictions because of it. I don't doubt their good intentions, nor do I doubt that good intentions may be paving stones to perdition.

W. W Woodward said...

None of the three of them would be acceptable jurors.

Moses committed a homicide when he killed the Egyptian for whuppin' an Israelite and then fled the country to avoid prosecution.

Jesus desecrated a place of worship and engaged in disorderly conduct by throwing birds, tables, and money lenders around the temple. To say nothing of assault. And, probably encouraged twelve easily influenced young gentlemen to fish out of season.

Paul spent too much time in jail to be an acceptable juror, especially for the prosecution.

Anonymous said...

Give it up, Scott. Quit while you're behind.

Plato

kbp said...

I sense Scott hand fun here responding to his post!

Anonymous said...

One witness isn't enough under even the simplest of cases to remove reasonable doubt. Now one eye witness and a forensic specialist testifying about the evidence found -- that's another story.

Let's see Moses was cleared by a higher judge over the same jurisdiction, but his status as legislator and judge rule him out, St. Paul is an administrative judge and overseer for a fairly large corporation (a certain church), and thus unacceptable, and Jesus, now wasn't he a convicted capital criminal or is He a superior judge -- either way he is unacceptable. I'm certain the prosecution would have no trouble getting rid of them.

Anonymous said...

Grits, I get it...Dudley try to over analyze on a subject that you want to express some religiousity education. Sometimes, most times people lack a common sense and desire so much to be seen or heard rather then to hold understanding. Harris County has a high conviction rate and I am certain over punishment. Alot of the kids that I have worked with in TYC have come from there and I remember the boy in TYC...I can't remember his name...but he is from Collin County and from the select that I do work with...Harris County, Collin County...they must be Moses, Jesus and the Apostle Paul reincarnates because their cases out of those counties...are not just...not fair. And I can only imagine how alot more people who have been prosecuted at the hands of prosecutorial misconduct or the such have suffered. So, prosecutors do not care who they prosecute...nor do they care of the correct punishment for the guilty. They are the equivalance of people wanting fame and to be seen and wanting to be feared. But all lawyers negotiate on the lives of the accused and they lie and they destroy and then they all buddy up and go to lunch. So, Dudly - just for you....just know that there are false witnesses and liars that do take the stand and raise their hand and say this and say that. Their "eye" only has revenge and hate. And from the reading lately...Collin County and Harris County seem to top the page. Prosecutors need to be sanctioned and held accountable.

45Then answered one of the lawyers, and said unto him, Master, thus saying thou reproachest us also.

46And he said, Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers.

47Woe unto you! for ye build the sepulchres of the prophets, and your fathers killed them.

48Truly ye bear witness that ye allow the deeds of your fathers: for they indeed killed them, and ye build their sepulchres.

49Therefore also said the wisdom of God, I will send them prophets and apostles, and some of them they shall slay and persecute:

50That the blood of all the prophets, which was shed from the foundation of the world, may be required of this generation;

51From the blood of Abel unto the blood of Zacharias which perished between the altar and the temple: verily I say unto you, It shall be required of this generation.

52Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered.

Anonymous said...

Let's keep it focused...this insn't a religious debate...it's a metaphor for faulty convictions to twist the heads of those jurors that are thinking. The Prosecutor with a smile will use a head trick to disqualify the moral ones. And yes "it may work" but look at the trickery he had to do to get it. I remember the kid in TYC or maybe he is still there that wouldn't admit to his charge....imagine what jury he has. Jurors are pawns and the Prosecutor has called the Defense attorney to a chess match. It depends on the mental strength of reasoning...remember the jurors are not party to ALL the evidence and they are not party to ALL what is going on in the court room. So, how is the hell can you think it proper that the jury can hear bites and pieces. You can't do that to a song, a conversation or anything...but it is allowed in a court room when someone's life and freedom and family depend on it. You are stupid. You are weak minded and miss the point. This isn't bible quote class its the freedom of the convicted versus the immoral dealings of a prosecutor in Harris county to lean the game his way. Now, would you want someone playing chess with YOUR life?

dudleysharp said...

Anon 7:17:

Please list the names of the Harris County prosecutors and the times they have suborned perjury or when their cases were overturned because the judges felt the crimianl was over sentenced.

It is unfortunate that folks won't stand up with their real names.

Anonymous said...

Well, seeing as we are supposed to have separation of church and state, I am sure a good attorney could either keep him or deny him from participating in whatever jury he came up for depending on the charge towards the accused.

That whole millstone thing though, one of the reasons I have never believed the crock of jesus being a forgiving, nor benevolent individual. Good thing the bible is only a book

Anonymous said...

What ever happened to that whole Bill of Rights thing anyway? bah, you know we didn't need those anyway.

Innocence till proven guilty, what a quaint little idea..

Prosecutors gain, or keep their jobs on how many "baddies" they put in prison.. how many "wins!" These people that watch CSI all day "know" that everyone that goes in front of a judge is guilty.. how else could they possibly be in a courtroom...

Anonymous said...

Exactly, 2:19. Dudley, I see that you're smart enough to banter with Grits (congratulations), but *come on*! Standing up for the integrity of Harris County prosecutors?!? Now that's definitely not smart. Chuck Rosenthal, anybody?

Anonymous said...

That's rich. You relying on the bible.

What's next? You voting republican?

Anonymous said...

You all remind me of the captain of the EXXON VALDEZ, you're totally off course!
Now what was the ?