- The Washington Times - Monday, April 18, 2005

Liberal legal culture frowns on religion. The notoriously liberal Colorado Supreme Court is exemplary. The core message of its ill-reasoned decision in People v. Harlan (March 28) is that relying on religious law or teachings in determining the death penalty’s appropriateness as a punishment taints the verdict as prejudicial or irrational.

Accordingly, Justice Gregory J. Hobbs Jr. writing for a 3-2 majority, invalidated a death sentence for first degree murder because jurors might have been influenced by biblical passages prescribing “eye for eye, tooth for tooth” and commanding obedience to civil authorities. In other words, the free exercise of religion carries a price in Colorado — the risk of disqualification from jury service where moral yardsticks are pivotal to punishment.

In 1995, a Colorado jury convicted Robert Harlan of first-degree murder, two counts of attempted first-degree murder, two counts of second-degree kidnapping, and assault. The jury unanimously agreed death was the proper punishment, a moral judgment pivoting on aggravating and mitigating circumstances introduced by the prosecution and defense. In deliberating on the death penalty, jurors consulted neither extrajudicial facts nor law at variance with jury instructions of the trial judge. The latter emphasized that jurors must resist a decision based on a “passion, prejudice or other irrational or arbitrary emotional response against Robert Harlan.”

One or more jurors sought to inform their moral consciences by reference to the Bible. It was brought into the jury room, and the following was examined from Leviticus 24:20-21: “Fracture for fracture, eye for eye, tooth for tooth, as he who has caused disfigurement of man, so shall it be done to him. And whoever kills an animal shall restore it, but whoever kills a man shall be put to death.” Leviticus champions a retributive punishment untroubling to imposing the death penalty — for example, the execution of Timothy McVeigh.

The jurors also consulted Romans 13:1: “Let every soul be subject to the governing authorities for there is no authority except from God and the authorities that exist are appointed by God.” The passage simply reinforced the obligation of the jury to adhere to the death-penalty instructions of their governing authority — the trial judge.

The presence of the Bible in the jury room was unworrisome. A juror’s education might as easily have entailed memorization of the respective passages from Leviticus and Romans. They could have been recited to co-jurors with passion and conviction. Indeed, well educated adults — whether believers, agnostics, or atheists — routinely master the death penalty teachings of the Old Testament, the New Testament, the Holy Koran or the Bhagavad-gita and would bring that learning into the jury cloister. But that would not threaten theocracy. Secular law builds on moral principles inculcated by religion. Thus, Moses and the Mosaic Code are celebrated in the magnificent building of the U.S. Supreme Court.

Justice Hobbs insisted the precepts of Leviticus and Romans constituted extraneous evidence that had not been admitted by the trial judge. But beliefs about right and wrong are ideas, not evidence. It would be preposterous, for instance, to censure a juror for memorizing Pope John Paul II’s or Mahatma Gandhi’s moral opposition to the death penalty on the ground inadmissible evidence had been smuggled into the juryroom. Neither a lobotomy nor amorality should be a prerequisite for jury service.

Justice Hobbs erroneously maintained that juror consideration of Leviticus and Romans might have influenced the decision for death in lieu of a life sentence to the prejudice of Harlan. Both teach morality fully consistent with the jury’s instructions and are common to both believers and nonbelievers. Not a single juror testified that the biblical passages required them to vote for death or risk damnation. A juror might have voted for capital punishment because retribution and obedience to civil authority as taught in the Bible were thought proper moral guides in punishing first degree murder. But a defendant is not entitled to disqualify jurors who subscribe to those legally legitimate guideposts.

Justice Hobbs absurdly asserted that his reasoning with regard to the Bible cast no cloud over jurors who have mastered religious texts for recitation during jury deliberations: “We do not hold that an individual juror may not rely on and discuss with the other jurors during deliberation his or her religious upbringing, education and beliefs in making the extremely difficult ‘reasoned judgment’ and ‘moral decision’ ” [in death penalty cases]. … The written word, [however], persuasively conveys the authentic ring of reliable authority in a way the recollected spoken word does not.”

The contrary is true. Memorization of entire passages entails intellectual labors that make the moral message indelible. Oratory in recitation, moreover, moves more than the written word. Compare Winston Churchill’s electrifying addresses during World War Ii with the dry prose of the Atlantic Charter.

In sum, the anti-religious principle of Harlan categorically condemns a juror whose morality is informed by religion. God is dead, at least in the chambers of the Colorado Supreme Court.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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