Capital hypocrisy: does compelling jurors to impose the death penalty without spiritual guidance violate jurors' First Amendment rights?

• Author: Rupp, Kathleen
• Position: NOTES

In 1992, Dorenda Brokofsky and her fellow jurors found Todd Willingham guilty of setting a fire that killed his children and sentenced him to death. (1) Willingham was executed by the state of Texas in 2004; however, newfound evidence suggests that he may have been innocent. (2) Upon learning of the existence of possibly exonerating evidence, Brokofsky remarked, "I don't like the fact now that maybe this man was executed by our word.... And I don't like the fact that I may have to face my God and explain what I did." (3) This tale demonstrates the profound role that religion plays in capital sentencing; jurors are aware that their decision may result in the death of a human being, and the realization that the jury may have ordered a defendant to his execution on faulty evidence can be spiritually and emotionally traumatizing. (4) Despite the difficult spiritual decisions that jurors must make in deciding whether to sentence a person to death, courts are divided on whether jurors can consult the Bible during sentencing deliberations. (5)

It is well established that capital sentencing deliberations are different in character than sentencing deliberations in which the death penalty is not available for consideration.

It should be understood that much more is involved here than a simple determination of sentence. For the State ... empowered the jury in this case to answer "yes" or "no" to the question whether this defendant was fit to live.... [S]uch a determination is different in kind from a finding that the defendant committed a specified criminal offense. (6) Opponents of allowing jurors to consult the Bible in capital sentencing deliberations commonly cite the Sixth Amendment: "[T]he accused shall enjoy the right to a speedy and public trial, by an impartial jury ... [and the right] to be confronted with the witnesses against him...." (7) Combined, these clauses recognize the importance of a defendant's ability to rebut the evidence that the jury will use to convict and sentence him while all parties are present in the courtroom. (8) Some courts consider use of the Bible for spiritual guidance to be extraneous evidence that has been injected into sentencing deliberations. (9)

Without discounting the extraordinary amount of concern that must go into protecting the rights of a criminal defendant, especially where his life is at stake, the rights of the jury are also important considerations. If the government expects citizens to be willing to perform their civic duty and serve as members of a jury, it is important that the government not unduly infringe upon the rights of .those jurors. Arguably, when the decision that jurors are called on to make is one of such great moral and spiritual import as deciding whether to sentence an individual to death, the rights of the jurors should be given the highest regard because the decision must rest on each juror's conscience. One right of jurors that is potentially compromised by preventing jurors from consulting the Bible originates in the First Amendment: "Congress shall make no law ... prohibiting the free exercise [of religion]...." (10) Some courts have held that jurors may not consult the Bible, a holding which carries the potential to infringe on the jurors' Free Exercise rights.

Section I of this Note will discuss Oliver v. Quarterman, a recent effort to seek Supreme Court review in a case concerning a capital jury consulting the Bible during sentencing deliberations. Section II will discuss the defendant's rights under the Sixth Amendment and argue why the Bible does not constitute an outside influence that infringes on those rights. Section III will discuss how preventing jurors from consulting the Bible infringes on jurors' Free Exercise rights under the First Amendment. Section IV will conclude with a hypothesis that simply encouraging attorneys to inquire more thoroughly into jurors' beliefs on voir dire is a workable solution that will optimize the protection and balancing of both jurors' and defendants' rights.

PART I: OLIVER V. QUARTERMAN: THE SUPREME COURT AGAIN REJECTS THE CHALLENGE OF SETTING A STANDARD FOR JURORS' CONSULTATION OF THE BIBLE FOR SPIRITUAL GUIDANCE

Juror consultation of the Bible during sentencing deliberations is not a commonly documented occurrence. (11) While there is a fair amount of case law from lower courts dealing with this issue, the Supreme Court has yet to grant certiorari to rule once and for all whether jurors may use the Bible for spiritual guidance during sentencing deliberations. (12) Recently, the Supreme Court denied certiorari on this issue in Oliver v. Quarterman, wherein a jury convicted defendant Khristian Oliver of capital murder committed in the midst of a burglary. (13) The jury had learned Oliver killed his victim by first shooting him, then bludgeoning him with his rifle. (14)

Following the jury's guilty verdict and subsequent death sentence, Oliver moved for a new trial, alleging that the jurors had improperly consulted a Bible during sentencing deliberations. (15) Oliver argued that the jurors' consultation of the Bible deprived him of his Sixth Amendment right to be sentenced by a jury untainted by outside influences. (16) A state evidentiary hearing produced conflicting evidence as to whether the Bible was consulted before or after the jury arrived at its sentencing decision, but it was uncontested that the jurors did at some point consult personal Bibles both for passages condemning murder ("Thou shalt not kill," for example) and for passages recommending death as punishment for those committing murder by bludgeoning with an iron instrument as Oliver did. (17) The evidentiary hearing also produced evidence that jurors not only read the Bible silently, but that they also discussed passages with each other during deliberations. (18)

The state trial court found that the jury rendered its verdict in accordance with the evidence it heard, uninfluenced by any impermissible outside sources. (19) The Texas Court of Appeals agreed, finding that Oliver had not carried his burden of proving that the Bible was an external influence. (20) Oliver then filed a petition for a writ of habeas corpus in the district court. (21) The district court denied the petition, viewing it as a request for an evidentiary hearing to which Oliver was not entitled as a matter of law. (22) The United States Court of Appeals for the Fifth Circuit affirmed the death sentence after finding that the jury's consultation of the Bible was impermissible, but the error was harmless because Oliver failed to rebut the district court's factual finding that the decision was not prejudiced by the Bible and that the standard of review was highly deferential. (23)

The Fifth Circuit reasoned that the Bible was an external influence because it was not admitted as evidence in the trial, but it could have encouraged the jurors to vote for a sentence of death even if such a sentence were unsupported by the evidence that was admitted at trial. (24) The court noted that a strong presumption of prejudice attaches when jurors consult outside evidence, but explained that the appellate court should defer to the state court's findings regarding juror impartiality absent clear and convincing evidence to the contrary. (25) Because the factual record supported the state court's finding that the jury was not influenced by the Bible in its deliberations, the Fifth Circuit deferred to those findings and found the error to be harmless. (26)

PART II: THE COURT PROTECTS THE RIGHTS OF THE DEFENDANT BY SHIELDING JURORS FROM OUTSIDE INFLUENCES

The Sixth Amendment guarantees an accused the rights to a fair and impartial jury, and "to be confronted with the witnesses against him." (27) Many courts weigh the defendant's rights heavily in deciding that a Bible may not be used in sentencing deliberations, as those courts may consider the Bible to be a type of outside influence that has not been presented in the Courtroom--thus, the defendant has not had an opportunity to rebut its use as evidence. (28) These courts, however, overlook the fact that once sentencing deliberations have commenced, a defendant has already been convicted of the crime for which he was accused, meaning that he must give up a substantial number of rights including the right to his liberty. This is not to discount the incredible gravity of a death sentence, nor to equate the convict's interest in a sentence that is lesser than death with a juror's interest in consulting the Bible. (29) However, it does provide a reason for courts to avoid entirely disregarding the jurors' rights. Subsection (a) will give a brief overview of what an outside influence is and why juror consultation of an outside influence is impermissible, while (b) will discuss how juror consultation of outside influences violates the defendant's Sixth Amendment rights. Finally, subsection (c) will discuss why the Bible is not an outside influence and, thus, why consultation of the Bible does not violate the defendant's rights under the Sixth Amendment.

1. What is an Outside Influence?

   An outside influence need not be tantamount to evidence. (30) Under the Sixth Amendment, any type of "private communication, contact, or tampering ... with a juror" is prohibited as an outside influence. (31) However in Robinson v. Polk, the Fourth Circuit discussed whether or not the Bible is an impermissible outside influence in terms of evidentiary properties. (32) In Robinson, the Fourth Circuit noted that a Bible could not be an impermissible external influence in part because it is not evidence--it does not present information that could bear on a fact at issue in the case. (33) The court noted that the definition of "evidence" necessarily involves determination of a fact at issue in the case. (34) Because the events of the Bible took place so far in the past, there is no chance that those events could tend to prove or disprove the occurrence...