Wednesday, November 11, 2009

When bringing Christianity into the jury box, bring all of it

I've ignored until now a Texas case receiving international notoriety in which jurors consulted some of the more punitive verses in the Christian Bible during deliberations in a death penalty case. It's been getting wide play elsewhere because it hits on two culture-war touchstones - the death penalty and church-state separation - that this writer finds boring, dull and repetitive.

However, this morning I ran across an angle on the case that interests me more. Scott Greenfield at Simple Justice has a post on the case, describing how the 5th Circuit agreed the scripture constituted an "external influence" on the jury but concluded that "under the "highly deferential standard" by which federal courts should review state court decisions, [the defendant] had failed to prove that he had been prejudiced by this unconstitutional juror conduct." SCOTUS recently declined to hear the matter, so the Bible-influenced verdict stood and the defendant was executed last week. A commenter at Simple Justice, Wayne Clemons, points out that:
Reading a few verses down, the jury would have found:

"Anyone who kills a person is to be put to death as a murderer only on the testimony of witnesses. But no one is to be put to death on the testimony of only one witness."
It's not just murder, of course, for which the Bible would require mulitple witnesses: "One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established." (Deuteronomy 19:15)

It's funny (and not ha-ha funny) how those most aggressively positing a biblical, scriptural basis for capital punishment often appear unconcerned at such biblical due process niceties.

Recently I wrote about a capital murder case in which the only evidence against the defendant was a jailhouse snitch and a scent lineup by Fort Bend County Sheriff's Deputy Keith Pikett's dogs. So I guess that's two witnesses, if you count the dog. But really it's none, since the snitch didn't actually see the crime and was compensated by the state with official leniency for his testimony.

In reality, our judicial system simply does not require proof "beyond a reasonable doubt," even if that's the hackneyed catch phrase with which juries are instructed - not when a jailhouse snitch and an accusation from a dog can get you a capital murder conviction (thankfully in that case the jury gave sentence of life without parole). Until Texas became one of the only states to change its law (in 2001), thousands of drug defendants were convicted based solely on the testimony of an undercover snitch, many of them by drug task forces like the ones memorialized in book and film in Tulia and Hearne. In non-drug cases, that's still legally enough to convict.

The real, workaday standard of proof typically employed in criminal cases is closer to what lawyers would call a "preponderance of the evidence" - based on the evidence heard by the jury, guilt is more likely than not, but by no means certain. That's about all you can say about a case made on testimony by a jailhouse snitch and a dog. There's absolutely no way under those circumstances that all "reasonable doubt" could be extinguished. Ditto for the Tulia cases, where testimony from one lying cop was enough to convict some three dozen people.

Courts routinely allow convictions based on a single eyewitness' identification, even when the witness had never seen the defendant before the encounter. But research shows the error rates in such identifications are unconscionably high, particularly when police don't use best practices and contaminate eyewitness evidence during a lineup.

As I said in the comments at Simple Justice, "It wouldn't matter if you kept the Bible out of the jury room. Folks who believe strongly that way can quote chapter and verse." But I also lamented "that VERY few Christians emphasize the 'two or three witnesses' requirement as strongly as the 'eye for an eye' stuff," even though "for Christians, the New Testament retains the former and rejects the latter." (See this discussion.)

I don't kid myself that jurors won't bring their religious beliefs with them into the courtroom - including those who believe in biblical infallibility, whose number in Texas are not insignificant. But I wish when that happens, Christian jurors would focus as much attention on the Bible's insistence the right person be punished as they do on Old Testament penalties.

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


Charlie O said...

You know, this story, and the one I read this morning in Texas Monthly about the O'Connor's and Exxon and how the highly corrupt (in my opinioin) Texas Supreme court overturned a jury verdict in favor of Exxon (surprise, surprise) just strengthens my opinion that Texas is not much more than a third world craphole. So very happy I left. (and all you resolute myopic Texans can now chime in, 'we're glad you left').

Hugh McBryde said...


It is a rarely commented on fact of the Torah (the portion of the Old Testament containing Deuteronomy) that there were no prison sentences in ancient Israel either.

There is in fact no place in the Bible where you can find God advocating for prisons and the universal tone of scripture with regard to prisons is that of horror, shock and revulsion.

Prisons are so horrible in the Biblical mind set that they were used as an apt illustration....

...of HELL.

Chris Halkides said...


Thank you for another thoughtful post.


Anonymous said...

Why would they look at religion in its entirety? They wanted to put someone to death, so they read the parts that supported that to alleviate their conscience. If God is with us, who can be ag'n us?

When their kid is on trial they'll look at the New Testament.


Anonymous said...

Seeing as this country is based on the Christian belief system, it is not too difficult to understand how a po-dunk town, in po-dunk county Texas could actually find 12 people to sit on a jury to read the bible, and sentence this person to death. What is hypocritical is that the Bible says nothing about Lethal Injections. It mentions stonings and the like. I guess the bible will only take you so far if you don't want to get your hands dirty..

Sam said...


Do not forget that we ask our jurors to bring their life experiences with them into their service as a juror. Some folks will include their religious beliefs in that admonition. They should however keep their religious convictions (no pun intended)to themselves and try not to influence a jury's deliberations with them.

Anonymous said...

Can we be surprised that in Texas of all places we'll find juries more interested in picking and choosing biblical quotations that will support death. I think not.

A quick trip into history will show that it's usually those who claim a devotion to God and a determination to spread the word are willing to commit atrocities in the name of that God.
The article has a definite slant of it's own, but summarizes a small number of the atrocities committed over not decades, but centuries in the name of Christianity.

Our politicians are elected and pass laws based on their religious beliefs despite a constituency that includes those of “other” religions or none at all and have no issues at all in bending and twisting our Constitution and Bill of Rights in the name of their personal beliefs based on the very same cherry picked biblical quotations they have used to justify the destruction of other cultures.

Want to buy beer on a Sunday? We still have places that prohibit sales because of laws passed to ban sales at a time when one “should” be in church. If you're not going to be in church, we're going to make sure you're not in the local tavern having a good time. Laws passed based on the morals of Christianity have prohibited the three “P's”, pornography, prostitution & polygamy. (Just for the record, I say that all three should be legalized and left to the personal choices of adults to decide if it's within their moral compass to indulge.) Biblical defenses were used to justify segregation. Think back to the 1950's and the driving force behind the existing divorce laws, the banning of books and music as not Christian. Our laws on homosexuality and our laws on the age of consent. Good upstanding Christians historically had no issues putting children to work in their factories as young as 6 or 7years old, they still have no issues treating them as adults in criminal matters and imposing life sentences, but let the “children” have sex of any kind and they go, if you will excuse the expression, ape poop.

As the more liberal and I would say enlightened sections of society win the battles to allow us to make choices based on our own consciouses, the Religious Right if you call them that, seem to push to make inroads in other directions. They lost the right to impose the death penalty for homosexuality a very long time ago, now they've lost the right to imprison one for the same offense, is it any wonder they cling to the last justification they have to kill those who offend their moral sensibilities with no consideration of laws that call for separation of religion and state or actual guilt?

Religion is all fine and good but as I told a Baptist cousin at the funeral of our Jewish grandfather when she alienated the entire room by loudly stating our shared grandfather would burn in hell because he never accepted Jesus into his heart, “Shut the f**k up, that has no place here.” The same goes for such things in a jury room.

Hugh McBryde said...

Well shoot, don't stop at verse 6 either, go a little farther: Deuteronomy 17:6 & 7: "At the mouth of two witnesses, or three witnesses, shall he that is worthy of death be put to death; but at the mouth of one witness he shall not be put to death. The hands of the witnesses shall be first upon him to put him to death, and afterward the hands of all the people. So thou shalt put the evil away from among you."

I'm all for getting Biblical about it.

Let's examine what was to happen to the false witness as well:

Deuteronomy 19:18-21: "And the judges shall make diligent inquisition: and, behold, if the witness be a false witness, and hath testified falsely against his brother; Then shall ye do unto him, as he had thought to have done unto his brother: so shalt thou put the evil away from among you. And those which remain shall hear, and fear, and shall henceforth commit no more any such evil among you. And thine eye shall not pity; but life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot."

Anonymous said...

The 'one lying cop' did not convict dozens of people in Tulia. Most of the Tulia defendants plead guilty.

ckikerintulia said...

Well Scott, we've been through a lot of this together. The editor of the Tulia Herald would not print our LTEs regarding single witness, because our legal system, he said, is based on Roman law and not on Judaeo-Christian law. (I certainly would not want our legal system based on OT law. I do not want to outlaw growing hybrid seeds (planting your field with two kinds of crops); I do not want to outlaw wearing a garment made of two kinds of cloth; I do not want to outlaw having intercourse during a woman's menstrual period; I don't want the state in the bedroom, period. I don't want a host of dietary laws. I am for separation of church and state, and do not find that a boring issue. I view the single witness thing as a statement of values regarding justice. I suppose that if some people want to bring a harsher statement of values into the courtroom they have that right. But usually those who bring the Bible into the courtroom (or into other judicial or legislative arguments) are those who insist they believe the whole Bible "from kivver to kivver." When I talked personally with Debbie Riddle about the single witness thing, she was quick to say we have a different context now. So she does believe in contextual ethics.

I think what we were fighting for at the legislature, (and partially succeeded) was for corroborating evidence, not necessarily more than one EYEwitness. With the work showing the frequent non-reliability of eyewitness testimony, what we were fighting for then is no less important now.

"The Pharisee" (7:42 AM) is correct that Torah contains no provision for prison. To do justice in the Old Testament is to make things right. Sometimes things just can't be made right.

Keep up the good work.

ckikerintulia said...

Anon 9:56, you're right. After Joe Moore's 90 year sentence, and some other extreme sentences, the Tulia Herald published a statement from the DA something like this: "I would think that after seeing the sentences being handed down, the rest of these people will be wanting to look at a plea." And of course he was right. Many of them did start looking at pleas. I was present in the courtroom when one young lady pleaded guilty. The judge asked his question, "Are you pleading guilty because you are guilty and for no other reason?" She stood there smiling for a few seconds. I knew what she was thinking, "I'm pleading guilty because if I don't I'm going to get a lot longer sentence." The judge rebuked her that this was serious business and that she ought not to be smiling about it. He also knew what she was thinking. He repeated his quesion, and she became serious and replied, "Yes, your honor."

Some on this blog suggest that those who pleaded guilty should be charged with perjury if in fact they were not. If so, the judge and DA should be charged with suborning perjury, or worse, coercing perjury.

Charlie O said...

Anonymous 9:34. Excellent comments. I couldn't agree with you more. Good on you at your grandfather's funeral and putting that cousin in her place.

Anonymous said...

Blindly groping for something to write bout today.




Anonymous said...

On March 17, 1998, Oliver and three juvenile codefendants were in the process of burglarizing the home of a 64-year old man. Oliver and the codefendants were in the house and Reed was in the vehicle. The victim surprised Oliver and Oliver shot him in the face with a 380-caliber handgun. He was also beaten around the head with the butt of a rifle.

Sounds like a good reason for the death penalty to me!!

Anonymous said...

Sounds like you're talking about the Torah.

sunray's wench said...

Scott - the issue folks on this side of the pond have raised with this case is NOT that the jurors were applying their Christian beliefs when deciding the sentence. It is that they took a Bible into the Jury room and pored over it to find guidance for their decision - the Bible was not submitted as evidence and here, only evidence plus writing materials would have been allowed to be used in this way. Guidance is always sought from the Judge at the trial.

Of course people bring their own life experiences to bear when they have to make decisions such as this. But just as you can "affirm" in court instead of swearing on the Bible, perhaps it should be the Juries should consist of a true cross-section of society including religious beliefs?

ckikerintulia said...

Sunray's Wench 11/12 12:18 AM

I've sat on a couple of juries on the Western Hemisphere side of the pond, and heard numerous jury instructions. Juries are not supposed to consider any evidence other than that presented in court. So, unless the judge allows one or both sides to present evidence from the Bible, it is outside the jury's instruction from the judge to do so.

Hugh McBryde said...

While it may not be appropriate to consider that which was not presented in court, I would remind Christians, as a Christian, a thoroughly BIBLE BELIEVING Christian, that it IS consistent from start to finish and when preaching justice, law and order, Prison and Jail were never tools of the almighty. They were and are tools of pagans and any use of them in our society is a vestige of unbelief, not belief.

That is legitimate to consider when sending a man or woman to a place scripture equates with hell itself.

sunray's wench said...

The Pharisee ~ so, are you saying that as I am a pagan, I should not sit on a jury because in your opinion I don't understand the concept of justice?

Hugh McBryde said...

No, I'm not saying anyone is a pagan in particular, that would be an equivocation, though an understandable one.

I'm saying the practice of jailing and imprisonment is a practice of pagan origin, when looked at in a Judeo-Christian context.

A juror, wanting to inject their religion into the punishment phase should consider, if they are a Bible Believing Christian, that scripture as a whole never gave out jail time, recoiled at the though of jail as a horror and compares it to hell itself.

That remark is primarily directed at my Bible pounding brothers and sisters who see Christianity as having a law and order agenda that results in people rotting in jail.

sunray's wench said...

The Pharisee ~ ahh I think I understand now, thank you. But I really am a pagan :)

Hugh McBryde said...

As you wish :)

Anonymous said...

Idiots deciding a mans fate, from a fairy tale book.