Moses in Colorado, 1995

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The ugly case of Robert Eliot Harlan goes back to a night in February 1994 when Rhonda Maloney finished her shift at Harrah's Casino in Central City, Colo., a few miles west of Denver. She picked up her car and headed north on I-25. She never made it home. Before the night ended, Maloney would be abducted, briefly rescued by a passing motorist, Jacquie Creazzo, and finally raped, assaulted and shot to death. Creazzo, in the ill-fated role of the Good Samaritan, also was shot. She was left paralyzed for life.

In another biblical twist, Harlan's father found evidence that incriminated his son in the murder. He summoned police. In June 1995, a jury in Adams County found the defendant guilty of first-degree murder and kidnapping. After a sentencing hearing, the court ordered Harlan put to death. Colorado's Supreme Court at first affirmed.

The usual motions ensued. Among them was a motion to vacate the death sentence because of a juror's use of the Bible during the penalty phase. Eight years passed. Most of the defense motions died on the vine. Finally the court ordered a hearing on this one. Sure enough, it turned out that at least one juror had brought a Bible into the jury room. Some of the sequestered jurors had consulted a Bible in their hotel rooms the night before they voted.

They found guidance in Leviticus 24:16-21. There the Lord, speaking to Moses, repeatedly sanctions the death penalty. "Breach for breach, eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it be done to him again. And he that killeth a man, he shall be put to death."

Several of the jurors went also to the New Testament, where they found guidance in Romans 13. Here Paul expounds the civil law of the empire and urges that it be obeyed. On the Saturday morning in Brighton, Colo., when they agreed unanimously upon a death sentence, the jurors first read and discussed the biblical passages.

That discussion in June 1995 was more than the trial court could tolerate in May 2003. After an extended hearing, the trial judge ruled that use of the biblical passages violated Harlan's right to have his sentence decided solely on the evidence and the law. Six months ago the Supreme Court of Colorado affirmed 3-2, with two justices abstaining. The effect was to vacate the death sentence and to replace it with life imprisonment instead.

Speaking for the majority, Justice Gregory Hobbs held that the jurors' use of the biblical texts constituted reversible misconduct. Exposure of a jury to influences "outside of the trial process itself" was improper. The biblical materials "were neither admitted into evidence nor permitted by court instruction."

Hobbs added: "The Bible and other religious documents are considered codes of law by many in the contemporary communities from which Colorado jurors are drawn. ... The Leviticus text is written in the first-person voice of God and commands death as the punishment for murder. The Romans text instructs human beings to obey the civil government. ... Drawn from an array of typical jurors in Colorado, at least one juror in this case could have been influenced by these authoritative passages to vote for the death penalty when he or she may otherwise have voted for a life sentence."

Justice Hobbs emphasized that the court was not expelling God from the jury room. Indeed, "We expect jurors to bring their backgrounds and beliefs to bear on their deliberations but to give ultimate consideration only to the facts admitted and the law as instructed. ... We hold only that it was improper for a juror to bring the Bible into the jury room."

The questions raised in the Harlan case have divided lower appellate courts. Virginia's Supreme Court (and the federal 4th Circuit) have found no error in permitting jurors in capital punishment cases to consult the Bible. The supreme courts of Oklahoma, Kentucky, Tennessee, and now Colorado have indicated that a jury's use of a Bible may indeed be prejudicial. I don't understand why it was reversible error for jurors to read physically from a Bible, but would not have been error for a juror to quote Moses from memory. Let us pray.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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Supreme Court of Colorado


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