Baptists urged to unite amid prayer debate
Group criticizes 'Baptist' editorial
By Yvonne White
Times Religion EditorIn the midst of a school prayer debate that illustrates differences of opinion among Alabama Baptists, their leader called Tuesday for unity and peace.
Dr. Leon Ballard, Alabama Baptist State Convention president, spoke of unity to the 1,505 delegates, or messengers, during the first session of the group's annual meeting at Whitesburg Baptist Church.
Shortly afterward, a group of Southern Baptist ministers and lay people affiliated with the Christian Family Association stood outside the church to criticize the editor of The Alabama Baptist, Dr. Bob Terry, for an editorial column last week opposing required prayer in public schools.
"Mr. Terry has done a terrible injustice to Southern Baptists and he should be ashamed," said Dean Young, executive director of the Christian Family Association, which is based in Gadsden.
"As a Southern Baptist for the last 18 years of my life, I am shocked and appalled at the article that was published in the Nov. 13 edition of The Alabama Baptist. This article was so ludicrous that I can easily say that the vast majority of Southern Baptists disagree with Mr. Terry's thoughts."
The disagreement stems from a ruling late last month by U.S. District Judge Ira DeMent. The federal judge expanded on his school prayer order of earlier this year, specifically limiting religious activity at school-sponsored events. DeMent's ruling has evoked a public outcry from many Christians.
One member of Young's group, Wayne Milam of East Gadsden Baptist Church, sponsored a resolution condemning DeMent's ruling. It was submitted to the resolutions committee, but at the close of business Tuesday, it had not made it out of committee....
The Huntsville Times, Wednesday November 19, 1997
Date: Wed Nov 19 09:34:49 1997
To: Frank Grose
From: Rob Weinberg
Subject: Re: Web Link
I listened to the early part of Barton's tape this a.m. looking for the reference to the case you asked about. I think you were referring to what he said was "Jane Doe v. Santa Fe Independent School District" decided May 5, 1995 or 1996. That was the one where Barton says the judge threatened to have the U.S. Marshalls in attendance at the graduation ceremony if, during the student initiated prayer at graduation, any reference to Jesus was made. And threats of arrests of students for doing so..... I couldn't find it on Westlaw. I did a couple of broad searches, and evidently if it ever happened, it's not reported. [Editor's Note: Although the original district court opinion was unreported at the time of this exchange, the case later made its way to the Fifth Circuit Court of Appeals, and eventually to the United States Supreme Court. See Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).]
Another federal case Barton cites that I could not find was from the eastern district of California involving the use of crosses in public cemeteries. Something about it being in public view or something. In a broad based search of California cases, state and federal, I could only find six references to cases that used both the words "cemetery" and "cross." Nothing on point.
Barton cites a 1991 case from the Supreme Court of Pennsylvania, Commonwealth v. Karl Chambers, for the proposition that prosecutors may not cite the Bible in closing arguments. Here is what the court said about that, plus the dissent from the case on that issue:
" **643 Finally, Appellant argues that the prosecutor overstepped the permissible bounds of oratorical flair in his closing argument by referring to the Bible. The record *585 shows that the prosecutor stated, "Karl Chambers has taken a life." (R., p. 1201). "As the Bible says, 'and the murderer shall be put to death.' " (R., p. 1201). Defense counsel objected. The trial court immediately noted this objection and gave a curative instruction to the jury.
"The guidelines governing a review of a claim of allegedly improper and prejudicial remarks made by a prosecutor during a sentencing hearing are set forth in Commonwealth v. Zettlemoyer, 500 Pa. 16 at 53 54, 454 A.2d 937 at 956 57, wherein we explained:
The primary guideline in assessing a claim of error of this nature is to determine whether the unavoidable effect of the contested comments was to prejudice the jury, forming in their minds fixed bias and hostility towards the accused so as to hinder an objective weighing of the evidence and impede the rendering of a true verdict. Commonwealth v. McNeal, 456 Pa. 394, 319 A.2d 669 (1974); Commonwealth v. Van Cliff, 483 Pa. 576, 397 A.2d 1173 (1979). In making such a judgment, we must not lose sight of the fact that the trial is an adversary proceeding, Code of Professional Responsibility, Canon 7, E.C. 7 19 7 39, and the prosecution, like the defense, must be accorded reasonable latitude in fairly representing its version of the case to the jury. Commonwealth v. Cronin, 464 Pa. 138, 346 A.2d 59 (1975). Nevertheless, we do require that the contentions advance must be confined to the evidence and the legitimate inferences to be drawn therefrom. Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972). Deliberate attempts to destroy the objectivity and impartiality of the finder of fact so as to cause the verdict to be a product of the emotion rather than reflective judgment will not be tolerated. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). The verdict must flow from the respective evidence presented and not represent a response to inflammatory pleas for either leniency **644 or vengeance. Commonwealth v. Starks, 479 Pa. 51, 387 A.2d 829 (1978).
"*586 [33] In the past we have narrowly tolerated references to the Bible and have characterized such references as on the limits of "oratorical flair" and have cautioned that such references are a dangerous practice which we strongly discourage. Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929 (1990); Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986). We now admonish all prosecutors that reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se and may subject violators to disciplinary action.
"Here, the prosecutor argued, "As the Bible says, 'and the murderer shall be put to death.' " This reference is substantially different than the references tolerated in Henry and Whitney where the prosecutor allegorically likened the Defendant to the Prince of Darkness mentioned in the Bible to establish that he was an evil person.
"More than allegorical reference, this argument by the prosecutor advocates to the jury that an independent source of law exists for the conclusion that the death penalty is the appropriate punishment for Appellant. By arguing that the Bible dogmatically commands that "the murderer shall be put to death," the prosecutor interjected religious law as an additional factor for the jury's consideration which neither flows from the evidence or any legitimate inference to be drawn therefrom. We believe that such an argument is a deliberate attempt to destroy the objectivity and impartiality of the jury which cannot be cured and which we will not countenance. Our courts are not ecclesiastical courts and, therefore, there is no reason to refer to religious rules or commandments to support the imposition of a death penalty.
"Our Legislature has enacted a Death Penalty Statute which carefully categorizes all the factors that a jury should consider in determining whether the death penalty is an appropriate punishment and, if a penalty of death is meted out by a jury, it must be because the jury was satisfied that the substantive law of the Commonwealth *587requires its imposition, not because of some other source of law.
"Because the prosecutor's argument in favor of the death penalty reached outside of the evidence of the case and the law of this Commonwealth, we are not convinced that the penalty was not the product of passion, prejudice or an arbitrary factor and, therefore, pursuant to our Death Penalty Statute, we must vacate the sentence of death and remand this matter for a new sentencing hearing. 42 Pa.C.S. ยบ 9711(h)(4).
"Accordingly, the conviction of murder of the first degree and the conviction and sentence imposed for robbery are affirmed, the sentence of death is vacated and the matter is remanded to the Court of Common Pleas of York County for a new sentencing hearing.
"NIX, C.J., concurs in the result.
"McDERMOTT, J., files a concurring and dissenting opinion.
"McDERMOTT, Justice, concurring and dissenting.
"I join the majority's affirmance of the conviction, however, I must dissent from the overreaction of the majority to the prosecution's biblical reference. The standard in evaluating whether a prosecutor crossed the line in his closing argument is whether his comments would have "the effect of arousing the jury's emotion to such a degree that it becomes impossible for the jury to impose sentence based on consideration of the relevant evidence according to the standards of the statute." Commonwealth v. Travaglia, 502 Pa. 474, 502, 467 A.2d 288, 302 (1983). In this case the isolated comment of the prosecutor was the last sentence in a brief closing. This was not emotional oratory calling for divinely motivated retribution; rather it was a reference to one of the texts from which our social system has evolved. The majority opinion is an unmerited censure of citizens called to such vast responsibility. To believe them swayed from their solemn, sworn duty by a single reference to a *588 legal **645 irrelevance is a presciosity that undermines the very essence of trial by jury. "
In a later, more recent case, the Pa. Court said about Chambers, "In *Simmons* we allowed the death sentence to stand, but observed that if the prosecutor had made reference to what the defendant might do if released from jail, the remark would be reversible error. In *Chambers* we held that any reliance by the prosecution upon religious writings to support the imposition of the death penalty is reversible error. In both cases, the problem was that the prosecutor made reference to considerations outside the death penalty statute to argue for imposition of the death penalty."
BTW, in the cases I send you, or as in the case above where I cut-n-pasted the passage from what I downloaded from Westlaw, the asterisks followed by numbers will refer to page numbers of the volumes of the books that the case is found in. The same Pennsylvania case will be found in two sets of books, Pennsylvania Reports and the Atlantic Reports, the latter has cases from surrounding states. Numbers preceded by one asterisk in the example above are references to page numbers in Vol. 528 Pa., numbers preceded by two asterisks there are references to Vol. 599 A.2d.
I'll not fault Barton too much for using these cases as illustrative to get the ball rolling for discussion of his thesis. As presented they have considerable emotional appeal, particularly to his intended audience. But reading the case above closely you realize that the actual holding and rationale of the case is a lot narrower than Barton implies to his listeners. Barton does acknowledge that it was the sentence that was reversed, not the conviction, but he does not acknowledge that what the Court was addressing was the prosecutor's appeal to extra statutory biblical law as the reason the death sentence was due to be reversed.
Not being able to find the first two cases may only mean that they're not reported, as I said. But given Barton's tendency toward contextual literary license with the facts, holdings and rationales of other cases we *can* find and verify, the whole of his work becomes inherently suspect. It's the boy who cried wolf. I'll admit he is a captivating speaker. But those are the ones you got to watch closely.
Have a good one. R
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