A Stitch in Haste

I perused parts of the Colorado Supreme Court decision in which a death sentence was overturned after it was discovered that a juror used the Bible to convince another juror to vote in favor of death. (Actually the CSC was only upholding the trial court's finding that the death sentence was invalid). The ruling can be found here (PDF – 64 pages).

Although I was hesitant at first, I’m now convinced that this was the correct outcome. The issue wasn’t really so much using the Bible in deliberations (so what?), or even bringing Bibles to the jury room (more troubling, but probably okay). The really issue was this:

Juror EatonOchoa brought a Bible into the jury room Saturday morning when deliberations resumed. Other jurors testified that more than one juror brought in a Bible, and that one of the Bibles present contained a study index with which a reader could locate passages on particular subjects. Jurors EatonOchoa and Trujillo also brought their notes on biblical passages into the jury room. Juror EatonOchoa showed juror Cordova the Bible text from Leviticus commanding the death penalty for murder, as well as the Romans text.

Clearly that's inappropriate -- the jury instructions were quite clear -- no outside materials were to be brought into the jury room. In other words, the problem isn't the Bible, but notes. So I think the decision was probably correct.

But that still leaves unresolved the bigger issue – suppose the jurors had been able to recite Leviticus 24:21 and Romans 13:1 from memory and had done so during the deliberations, would that have been "juror misconduct"? I'm not so sure.

More thoughts at Hit & Run and Overlawyered (which adds two important observations that I missed: first, that the prosecutor invoked the Bible in his closing arguments – not a good idea; second, that jurors were subpoenaed to testify eight years after the trial – talk about "Twelve Angry Men"...)

UPDATE: The prosecution is seeking to appeal the decision to the United States Supreme Court. The decision whether to grant certiorari of course will not come until the Court reconvenes in October. Stay tuned.

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.

Having said that, I am now crafting an exception:

On any and all criminal juries on which I may ever be empaneled, if any fellow juror ever quotes the Bible or any other religious text as a substantive component of deliberations, then I will summarily vote "not guilty" without any further consideration of either the facts or the law.

However, since I don't live in the Ninth Circuit, I probably won't have to invoke such a nuclear option:

In a surprising en banc ruling, the Ninth Circuit has rejected a death row inmate's claims that his Sixth Amendment rights were violated when the jury foreman researched and shared Biblical quotes about capital punishment during sentencing deliberations. The district court granted habeas relief, finding that the notes were extrinsic materials that had swayed the jury to vote for the death penalty.
...
By a vote of 9-6, the Court rejects the petitioner's claims of jury bias. The majority holds that the juror's notes were not improper extrinsic evidence but simply "notions of general currency that inform the moral judgment" of juries in capital cases.

So be it. They have their "notions of general currency that inform moral judgment" -- and I have mine.

The case is Fields v. Brown, No. 00-99005 (9th Cir., Sept. 10, 2007) (PDF - 99 pages).

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Incidentally, it has been noted elsewhere that this case is now among the longest running death row appeals in American history -- 28 years and counting. Discuss.