The Colorado Supreme Court recently upheld a lower court’s decision reversing the sentence of a murderer who had been given the death penalty. Why? Because the jurors were found to have consulted the Bible in reaching their decision.
In this case, the issues of secularism, legal principles, and moral reasoning come into conflict, only because a slim majority on Colorado’s highest court found that when jurors consult the Bible, they violate the legal requirement that jurors should follow only the instructions of the court itself. In its own way, this decision by the Colorado Supreme Court demonstrates this nation’s growing allergic reaction to any claim that morality and moral reasoning should be rooted in the Bible.
The facts of this case appear simple enough. Robert Harlan was convicted of kidnapping a waitress, Rhonda Maloney, and later raping and murdering her. At some point in the commission of Harlan’s crime, Maloney escaped and caught the attention of a passing motorist, Jaquie Creazzo. Eventually, Harlan shot Creazzo, leaving her paralyzed. He then murdered Maloney in an act of extreme violence and brutality.
After his conviction, the trial court jury was given instructions concerning the sentencing phase of the trial. Colorado law–in contrast to the law of other states–specifically instructs jurors that they must arrive at an “individual moral assessment” in making their decision regarding the death penalty. In the end, the jurors voted unanimously for the death penalty. Months later, an investigator working for Harlan’s defense attorneys interviewed jurors about the nature of their deliberations. In the course of these interviews, some jurors indicated that Bibles had been brought into the jury room during deliberations and that at least some jurors had mentioned specific texts as relevant to the decision the jurors faced. In the Colorado Supreme Court’s written decision, the court found that evidence adduced at the trial court’s hearing shows that at least one juror brought a Bible, a Bible index, and handwritten notes into the jury room and shared information from the Bible with other jurors. Further, the court found that “these extraneous materials contained a passage commanding the death penalty for murderers and another instructing obedience to civil authorities.” Lastly, “these passages were pointed out by at least one juror to another juror before the jury reached its unanimous verdict imposing the death sentence.” The trial court later concluded “that use of the Bible in the jury room to demonstrate a requirement of the death penalty for the crime of murder could influence a typical juror to reject a life sentence for Harlan. Therefore, the trial court found that Colorado’s legal standards require reversal of the jury’s death sentence verdict in this case.”
Prosecutors appealed the trial court’s findings and the case eventually found its way to the Colorado Supreme Court. On March 28, that court–in a 3-2 decision–decided, “we can no longer say that Harlan’s death sentence was not influenced by passion, prejudice, or some other arbitrary factor.”
This sharply divided court produced a decision that apparently sets legal principles and moral reasoning on a collision course. Colorado law offers protections to defendants in capital cases, requiring that a death sentence not be influenced by the very “passion, prejudice, or some other arbitrary factor” that at least three Colorado Supreme Court jurists were willing to see in the use of the Bible in jury deliberations.
Again and again, the court’s decision documents the fact that the trial court instructed the jury that it was to base its decision in the sentencing phase on the evidence provided in the case and “nothing else whatsoever.” The judge actually instructed the jury that it was to rely upon absolutely no knowledge or moral reasoning not presented in the limited context of the trial. “I just want you to come to this court focused on this case ready to listen to the evidence in this case and to base your decision only on evidence that you get at this trial, nothing else whatsoever,” he instructed. Just before opening statements in the trial began, the judge admonished the jury with these words: “Your purpose as jurors is to decide what the facts are, and your decision must be based solely upon the evidence presented in this courtroom.”
During the trial, the jurors were sequestered and cut off from media coverage, not only of this specific murder case, but of all legal issues. Furthermore, they were isolated from telephone and other communication devices and were allowed to speak with family members only when an officer of the court was present.
After reaching its guilty verdict, the jury was then assigned the task of deliberating the appropriate sentence. With this crime, the two possible sentences were life in prison without chance of parole and the death penalty. According to Colorado law, any verdict imposing the death penalty must be unanimous, and the jury was again instructed that it “must not base its decision on passion, prejudice, or some other arbitrary response.” Beyond this, the judge did instruct the jury that “it could consider mercy or sympathy for Harlan based on his allocution statements.”
In the judge’s instructions to the jury concerning its death penalty deliberations, specific instructions unique to Colorado were presented to the jury. “This consideration involves a process in which you must apply your reasoned judgment in deciding whether the situation calls for life imprisonment or the imposition of the death penalty. You must still all make a further individual moral assessment of whether you’ve been convinced beyond a reasonable doubt that the death penalty instead of life in prison is the appropriate punishment.” Finally, the court instructed: “You should attempt to arrive at a reasoned judgment as to whether you have been convinced beyond a reasonable doubt that the mitigating factors do not outweigh the aggravating factor or factors.”
Note clearly that the jurors were told that it was their responsibility to “make a further individual moral assessment” concerning the death penalty in this precise case. How are jurors to make that “individual moral assessment?”
In sequestering the jury, the court had carefully eliminated access to the media, removing televisions and radios from the hotel rooms where the jurors were housed. Telephones and other means of communication were also removed. But the court did not remove copies of the Bible, placed in the rooms by the Gideons chapter.
According to the court’s written decision, “Several jurors studied Bibles Friday night in their hotel rooms, looking for passages relating to capital punishment and a citizen’s duty to obey the law, and took notes on the location of particular passages.” One juror “took notes on two passages.” The first passage was Leviticus 24:20-21 and the second was Romans 13:1. The Leviticus passage includes the instruction, “Thus the one who kills an animal shall make it good, but the one who kills a man shall be put to death.” Romans 13:1 reads, “Every person is to be in subjection to the governing authorities. For there is no authority except from God, and those which exist are established by God.”
According to the record, at least one juror brought a Bible into the jury’s deliberation room on Saturday morning, and at least one copy of the Bible “contained a study index with which a reader could locate passages on particular subjects.” At some point, one juror showed another juror “the Bible text from Leviticus commanding the death penalty for murder, as well as the Romans text.” Shortly thereafter, the jury returned a unanimous verdict that imposed the death penalty on Robert Harlan.
When an investigator working for Harlan’s defense counsel discovered the use of the Bible in the jury’s death penalty discussion, his attorneys immediately filed a “Motion to Vacate the Death Sentence Due to Jurors Use of the Bible During Penalty Phase Deliberations.”
The trial court later held an evidentiary hearing and determined that the death penalty verdict must be vacated. In its own decision, the Colorado Supreme Court upheld the trial court’s action and stated, “We can no longer say that the death penalty verdict was not influenced by passion, prejudice, or some other arbitrary factor.”
In explaining its decision, the Colorado high court indicated that it had adopted an “objective test” for determining whether or not prejudice had entered into the jury’s deliberations. “The relevant question for determining prejudice is whether there is a reasonable possibility that the extraneous information influenced the verdict to the detriment of the defendant,” the decision stated.
Note clearly what this court decided. The Colorado Supreme Court has decided that the very fact that one or more jurors consulted the Bible in the course of making the “individual moral assessment” that was its assignment invalidated the jury’s unanimous action. In other words, the Bible was labeled as the very kind of “extraneous information” that is likely to illicit passion and prejudice on the part of jurors. The court concluded “that there is a reasonable possibility that the Bible material introduced into the jury room could have influenced a typical juror to vote for the death penalty instead of a life sentence, to Harlan’s obvious detriment.”
In an interesting twist, the court explicitly found that the Bible was “extraneous” to the case and that for a juror to bring the Bible or to take handwritten notes from the Bible “was improper and constituted misconduct.” The high court ruled that, since the Bible had not been directly introduced at the trial as evidence, it could not be consulted by jurors in making their own moral assessment of the death penalty. This flies in the face of the fact that the defense had made an explicit reference to the Bible in pleading for mercy in Harlan’s sentencing phase. In a bizarre misapplication of the text, Harlan’s attorneys apparently argued that as God had extended mercy to Abraham after Abraham had come close to killing his own son, so the jury should extend mercy to Robert Harlan. Of course, the attorney’s argument is a complete misconstrual and misunderstanding of Genesis 22:1-18, but the key point is that the defense counsel made an explicit appeal to the Bible in the first place.
Did not the witnesses who gave sworn testimony in this case place their hand upon the Bible and repeat the oath, pledging to tell the truth, the whole truth, and nothing but the truth, “so help me God?”
The majority opinion in this case attempted to make a distinction between the Bible as a written authority and the knowledge of the Bible some jurors may have possessed and from which they may have drawn insight during the jury deliberations. “The written word persuasively conveys the authentic ring of reliable authority in a way that recollected spoken word does not,” the majority decided. Further, “Some jurors may view biblical texts like the Leviticus passage at issue here as a factual representation of God’s will. The texts may also be viewed as a legal instruction, issuing from God, requiring a particular mandatory punishment for murder. Such a ‘fact’ is not one presented in evidence in this case and such a ‘legal instruction’ is not the law of the state or part of the court’s instructions.”
Lest the majority’s point be left unclear, the decision included this straightforward sentence: “In a community where ‘Holy Scripture’ has factual or legal import for many citizens and the actual text introduced into the deliberations without authorization by the trial court plainly instructs mandatory imposition of the death penalty, contrary to state law, its use in the jury room prior to the penalty phase verdict was prejudicial to Harlan.”
Two justices joined in a dissenting opinion, accusing the court’s majority of elevating “form over substance” and violating the right of jurors to make the very “individual moral assessment” that was charged as their responsibility.
In a sweeping dissent, these two justices rejected any claim of juror misconduct in this case. “Although the jurors were advised of many things which they could not do during the course of their deliberations, the jurors were never told to refrain from consulting the Bible or other religious material.” Beyond this, the dissenting justices accused the trial court of overestimating “both the nature of the extraneous information and the jurors’ use of that information, making conclusions from these overstated facts which are simply not supported by the record.”
More importantly, these justices found “no reasonable possibility that the jurors’ exposure to a biblical passage instructing them to follow Colorado law was prejudicial to Harlan.” The majority opinion “exhibits a complete lack of faith in the jury system and in the jurors who uphold that system,” the dissenting justices declared, adding that the majority had engaged in “second guessing those jurors’ abilities to follow the law in spite of and because of their religious backgrounds.”
The dissenting opinion also ransacked the majority opinion’s distinction between the written and remembered forms of the biblical text. “However, by choosing to define the written version of these commonly known biblical passages as ‘a higher authority,’ the majority elevates form over substance. Many people know large parts of the Bible by heart and can quote certain passages verbatim with persuasive alacrity, particularly when the ideas in those passages are as widespread and generally known as those referenced here. It is without doubt that a juror may relate passages of scripture from memory during deliberations, and that such recitation would not even be considered extraneous, much less prejudicial. It makes little sense, therefore, that the exact same passage in written form is somehow enshrined with an authority that the spoken or remembered passage lacks.”
From the vantage point of history, it may be that the most important effect of this decision is not the reversal of the death sentence in this particular case, but the chilling signal it sends throughout the court system. The Colorado Supreme Court has effectively decided that the Bible, in written form, is a prejudicial document that is judged to be detrimental to the cause of a defendant who may face the death penalty. The jurors who are assigned responsibility to arrive at an “individual moral assessment” are now told that they cannot use the very text that, for vast millions of Americans, constitutes the very basis of morality itself.
This case represents a direct assault upon freedom of conscience and religious liberty. For, if the logic of this ridiculous decision controls, jury deliberations will be reduced to secular reasoning based upon secular texts as imposed by a secular authority. Every concerned American should quickly arrive at an “individual moral assessment” regarding that precedent.
R. Albert Mohler Jr.
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