Using Scripture in Trial.

It was so accommodating for the California Supreme Court to produce an opinion this month that falls perfectly within this blog's niche integrating law and theology. (People v. Harrison, Case Number S035367, March 3, 2005; read it here--http://www.courtinfo.ca.gov/opinions/documents/S035367.PDF.)

In sum, the Harrison Court addressed a scenario where the prosecutor quoted scripture and used biblical imagery in his closing argument. The defendant was convicted of two murders, and then sentenced to death. This appeal was predicated, in part, on a claim that the prosecutor's religiously themed argument constituted "misconduct".

1. Closing Argument Invoking Revelation's Apocalypse.

"[The prosecutor] stated that although he was 'not a religious person by any stretch of the imagination' he had read about the apocalypse as described in Revelation, the last book of the Bible. '[T]he word apocalypse,' he said, put 'defendant's conduct in proper perspective,' except that in contrast to the apocalypse, defendant did not have 'the necessary mandate' to carry out his actions. The prosecutor explained that in the apocalypse, a crowned rider on a white horse who came to conquer the world was followed by three other men on horses who came to kill and take peace away so that the world could start anew.

"Describing the apocalypse as 'the mandate of God,' the prosecutor argued to the jury: 'On what steed, with whose authority does [defendant] cut a path through the City of Oakland leaving murder and death and destruction and utter annihilation in his wake? By what authority is he guided? [¶] This man is the disciple of Satan, ladies and gentlemen. He has worked his way up into this community from the deep inner core of this planet like a sour foul putrid weed. He has cracked the soil and killed all before him so he can live, and when the sun goes down he comes out and he slaughters and he maims and he murders. [¶] But, . . . he's not the judge and jury in this case, you are, and that's where he comes up short. The man is the utter harbinger of senseless total annihilation, no more, no less. You must take the sword from him and cast it down and tell him that he was wrong and he may go no further.'" (Id.)

2. Limits on Using Biblical Authority.

The California Supremes summarized State law that "prosecutors may not appeal to religious authority in a closing argument to the jury. Our opinions have most often discussed such arguments when made at the penalty phase of a capital case, because the decision whether to impose the death penalty is an ethical and normative question that at first glance seems amenable to religious argument. As we have explained, such argument is improper, because to invoke God may diminish the jurors' sense of personal responsibility for the decision whether to impose the death penalty or may encourage jurors to base their penalty decision on a different or higher law than that found in the California Penal Code." (Id.; citations omitted.)

While observing that the "biblical reference came at the guilt, not the penalty, phase of trial", the Harrison Court stated: "Appeals to religious authority at the guilt phase are also impermissible, but for a different reason than at the penalty phase. The jury at the guilt phase is not charged with making an ethical or normative decision; instead, it decides questions of historical fact based on the evidence and applies to those facts the law as articulated by the trial court. Religious input has no legitimate role to play in this process." (Id.; emphasis added and citation omitted.)

3. Argument Was Not Appeal to Authority, but Akin to a Literary Reference.

Nevertheless, the Court reasoned that the prosecutor did not necessarily appeal to religious authority when he referenced the Bible. (Id.) "Not only is the Bible a religious text, but it is also generally regarded as a literary masterpiece; indeed, it is among the oldest and best-known literary works in our culture. The English departments of major secular universities teach courses on the Bible as literature. [footnote omitted] And this court has repeatedly held that in closing argument attorneys may use 'illustrations drawn from common experience, history, or literature.' (Id.; citations omitted.)

The California Supreme Court continued: "When references to the Bible are involved, the line between literary allusion and religious appeal is often a fine one. A prosecutor who mentions the Bible in closing argument runs a grave risk that a reviewing court will find that the line has been crossed and will reverse the defendant's conviction. Because any use of biblical references in argument must be carefully scrutinized, cautious prosecutors will choose to avoid such references. Nevertheless, so long as they do not appeal to religious authority, prosecutors may refer to the Bible in closing argument to illustrate a point. Here, a reasonable juror likely would understand the prosecutor's biblical references merely as a powerfully dramatic illustration of the gravity and enormity of defendant's crimes. The prosecutor did not argue that biblical law or doctrine required defendant's conviction of the charges against him. [citation omitted.] Indeed, he prefaced his remarks with a statement that he himself was 'not a religious person.' Because the prosecutor did not use the biblical allusion as an appeal to religious authority, we do not find prosecutorial misconduct in this case." (Id.)

The California Supreme Court affirmed the judgment in all respects.

4. Concurring Opinion Finds Misconduct Because Appeal Was to Higher Law.

While all the other justices signed the majority opinion, Justice Carlos Moreno filed a concurring opinion on the single issue of the prosecutor's religious comments during trial. He wrote: "I would conclude that the prosecutor's invocation of religion during defendant's guilt phase trial constituted misconduct, but was not prejudicial, given the strong evidence of defendant's guilt.

"As the majority rightfully acknowledges, we have repeatedly held that a prosecutor may not appeal to religious authority in a closing argument to the jury. ... I agree with the majority that '[w]hen references to the Bible are involved, the line between literary allusion and religious appeal is often a fine one.' ... I believe that the prosecutorial argument at issue here, however, falls squarely on the wrong side of that line.

"Of particular significance are the prosecutor's extended metaphor invoking the Four Horsemen of the Apocalypse (see Revelation 6:1-6:8), his description of defendant as 'the disciple of Satan,' and his charge to the jury to 'take the sword from [defendant] and cast it down and tell him that he was wrong and may go no further.'

"The majority is correct to note that 'not every reference to the Bible is an appeal to religious authority.' Literary allusion, which is by definition 'a covert, implied, or indirect reference' to a work of literature (1 Oxford English Dict. (2d ed. 1989) p. 349), is permissible in closing argument even when the work of literature alluded to is the Bible. Indeed, counsel would be well within the bounds of permissible argument if he or she referred to a skeptical expert witness as a 'doubting Thomas' (John 20:24-20:28), or called someone a 'good Samaritan.' (Luke 10:33-10:34.)

"However, extended references to biblical passages that explicitly relate principles or illustrations from the Bible to the case at hand go well beyond mere allusion. While it is true that the Bible is 'generally regarded as a literary masterpiece,' ... it is clearly more than a work of literature to many potential jurors who may believe the Bible to be divinely inspired. As such, any extended reference to the Bible can be expected to carry an inherent authority behind it that illustrations drawn from Dickens, Shakespeare, or J.K. Rowling could not. To pretend otherwise would be to ignore the reality that, to many people, the Bible is not just a literary work but a holy text.

"Although the majority correctly notes that 'any use of biblical references in argument must be carefully scrutinized' ..., it then concludes that 'a reasonable juror likely would understand the prosecutor's biblical references merely as a powerfully dramatic illustration of the gravity and enormity of defendant's crimes.' I am unpersuaded.

"An argument need not directly tell jurors to supplant the state's law with God's law to invoke religious authority. The prosecutorial argument at issue here was not only biblical in style and substance, but made an explicit and extended comparison between defendant and the Four Horsemen and called defendant a 'disciple of Satan.' Indeed, the aim of the prosecutor's extended, albeit somewhat confusing, comparison between defendant and the Horsemen appears to be that the defendant, unlike the Horsemen, lacked 'the necessary mandate' to kill. In contrast, though the prosecutor did not directly urge the jury to follow religious law rather than California law, he did suggest that, unlike defendant, the jury had a divine mandate, if not a religious obligation, to 'cast . . . down' defendant and to judge him guilty. In addition, using language strongly evocative of biblical passages, the prosecutor charged the jury with a mandate to 'take the sword from [defendant] and cast it down and tell him that he was wrong and he may go no further.' This extended metaphor was an invitation to the jury to apply a 'higher law than that found in the California Penal Code.' ... Because I believe that the prosecutor's closing argument at the guilt phase crossed the line between permissible allusion to the Bible and impermissible religious exhortation, I would conclude that the argument was improper." (Id.; Moreno, J., concurring.)

Next post, we'll opine on who got the better of the argument between the majority and concurring opinions.