Religious arguments by prosecution

[stuart_buck at CK6.USCOURTS.GOV]

     An interesting case came down from the Ninth Circuit yesterday --
     Sandoval v. Calderon, No. 99-99010 (available online at
     http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&
     no=9999010 ).  The prosecutor in a death penalty case quoted nearly
     verbatim a passage from the book of Romans in the Bible.  This
     happened during the sentencing phase of the trial.  The court saw that
     quotation as reason to grant habeas corpus relief as to the death
     sentence.

     Here is what the prosecutor said:
           "I want to respond to some of the things argued by[defense
     counsel]. He told you that it's absurd to talk about life and death,
     that the law is absurd, that you are playing God, that it's revenge.

            "And that is to get you, of course, to vote for life without
     the possibility of parole. Well, death is a legitimate means of
     punishment in this state. It's available in this state. You are called
     upon to impose it if you think it's appropriate. You are a cross
     section of the community. People are judged by a jury of their peers.
     You make that determination whether the defendant should get the death
     penalty or life without the possibility of parole. The defense wants
     to make that burdensome for you. Each and every one of you from here
     on must live with that decision. Push that button over there. You must
     live with that decision for the rest of your life.

           * * * *

            "[Defense counsel] says don't play God. Let every person be in
     subjection to the governing authorities for there is no authority
     except from God and those which are established by God. Therefore, he
     who resists authority has opposed the ordinance of God, and they who
     have opposed will receive condemnations upon themselves for rulers are
     not a cause of fear for good behavior, but for evil. Do you want to
     have no fear of authority? Do what is good and you will have praise
     for the same for it is a minister of God to you for good. But if you
     do what is evil, be afraid for it does not bear the sword for nothing
     for it is a minister of God an avenger who brings wrath upon one who
     practices evil.

           "You are not playing God. You are doing what God says. This
     might be the only opportunity to wake him up. God will destroy the
     body to save the soul. Make him get himself right.  . . . Don't be
     fooled by what's to come [in defense's rebuttal]. Let him have the
     opportunity to get his soul right. That's the only way to get his
     attention. You are not playing God. God ordains authority."


     The Ninth Circuit, in discussing this statement, suggested that teh
     prosecutor's appeal to Biblical authority a) undermined the jury's
     sense of personal responsibility for their actions, b) appealed to
     factors that may not constitutionally support the death sentence, and
     c) conveyed the state's endorsement of religion.

     So, here's a counter-hypothetical.  Suppose that between the guilt
     phase and the sentencing phase of a murder trial, the initial
     prosecutor who sought the death penalty is replaced by a Catholic
     prosecutor who opposes the death penalty on religious grounds.  The
     Catholic prosecutor appeals to the jury not to apply the death
     sentence, and quotes the words of the Pope to that effect.  Such an
     appeal would a) undermine the jury's sense of responsibility for its
     actions and b) convey endorsement of religion.  But, by definition, it
     wouldn't be using an unconstitutional factor to support the death
     penalty.  So (assuming that the state could appeal a sentence without
     violating Double Jeopardy), would the state have the right to appeal
     because of its prosecutor's statement?

     Stuart Buck




     P.S.  The Ninth Circuit was incorrect in at least two of its
     citations.  The court claimed that "religious arguments have been con-
     demned by virtually every federal and state court to consider
     their challenge."  It then string-cited several circuit court cases.
     But the first two cases cited -- Coe v. Bell, 161 F.3d 320, 351 (6th
     Cir.1998), and Bennett v. Angelone, 92 F.3d 1336, 1346 (4th Cir.
     1996) -- did NOT hold that the religious argument was reversible
     error.  Both courts, while expressing disapproval of the religious
     argument, did NOT hold that a constitutional error had occurred.