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Courts are increasingly giving lawyers a word of advice on comments that they make in front of juries: Watch what you say. In particular, prosecutors were recently warned by the Pennsylvania Supreme Court against using the phrase “send a message” during closing arguments to the jury. And attorneys on both sides have been warned against making religious arguments and quoting Scripture. While both sides have quoted Scripture to juries in the past, prosecutors say they are the ones who usually get called on it. They say that their comments are especially scrutinized in death penalty cases, which often get challenged on grounds of prosecutorial misconduct. “The belief of many of us is that there are many judges out there just looking for an excuse to overturn these capital cases,” said Oregon prosecutor Joshua Marquis, who chairs the Capital Litigation Committee for the National District Attorneys Association. As a result of this fear, said Marquis, who is the district attorney for Clatsop County, “[p]rosecutors have been much more careful in the arguments they use. They’re less inflammatory.” The Pennsylvania Supreme Court’s ruling-which took the form of a blanket prohibition against prosecutors who encourage juries to “send a message” with the verdicts they render-came in a case where the court awarded a new sentencing hearing for a drug gang hit man on death row for four murders. Commonwealth v. DeJesus, No. 04-1633. And in California, a death penalty case challenging a prosecutor’s religious remarks is currently pending before the state’s Supreme Court, which has long condemned the practice of prosecutors quoting Scripture. People v. Slaughter, 27 Calif. 4th 1187 (2002). 100 cases, more coming Cornell Law School Professor John Blume, who has researched litigation involving prosecutors’ religious remarks, noted that there is no law on the books banning the use of religious arguments. However, he noted, prosecutors are now more cautious about using such tactics because there have been several judicial opinions on the topic in the last five years, all of them condemning Biblical arguments. “I think there certainly is increasing recognition that these types of comments are inconsistent with the law and can be very prejudicial,” said Blume. According to Blume, between 1985 and 2000, there were nearly 100 reported capital cases involving challenges to a prosecutor’s religious remarks. He expects more litigation in this area, largely because some prosecutors in different parts of the country can still get away with quoting Scripture in capital cases. “Prosecutors never get disciplined for anything,” Blume claimed. Many prosecutors vehemently disagreed, saying that they’re held to higher standards than defense attorneys, and that they’re held far more accountable for their words than their opponents. “There are radically different standards for prosecutors and defense attorneys in [capital] cases,” Marquis said. “Prosecutors believe that we are subject to far more stringent regulation. For example, it’s unheard of for a defense attorney to be sanctioned.” Texas prosecutor John Kimbrough, the district attorney in Orange County, noted that Biblical arguments can go both ways. For example, several years ago he prosecuted a capital case where a defense attorney convinced a jury not to give his client the death penalty after preaching Biblical themes like mercy and the story of Cain and Abel. “I think it probably saved the guy’s life . . . .It was effective and it was a fair argument,” said Kimbrough, who noted that lawyers in Texas have few speech restrictions. “In Texas we got a lot of leeway with final argument,” he added. “You can quote not only something from the Bible, but you can quote from Dr. Seuss, or you can say things like, ‘My old Grandaddy told me so and so.’ It’s just to make a point.” Defense attorneys say they, too, should refrain from quoting the Bible in court, largely because it could prompt prosecutors to do the same and may backfire on the defendant. “I think that if a defense lawyer is going to start quoting the Bible they have to be prepared that the prosecutor may be allowed to respond in kind,” said Samuel Stretton, defense counsel in the DeJesus case. But Stretton, a solo practitioner in West Chester, Pa., also advises defense counsel to stay away from preaching for strategic reasons. “You start quoting Bible verses and you start turning off jurors,” he said. Defense attorney John Schuck, who is appealing a death sentence in California on the ground that the prosecutor argued religion and tainted the jury, believes that if quoting Scripture is wrong for a prosecutor, it should be wrong for a defense lawyer, too. “It is wrong for the same reasons,” said Schuck, a solo practitioner in Palo Alto, Calif. But, he added, defense attorneys often have more leeway in terms of what they can argue because they are fighting to save someone’s life. So sometimes, a religious argument might be appropriate, he said. “Maybe in a certain case a defense attorney might want to take a chance,” Schuck said. “It may sound a little hypocritical, but I think a defense attorney might want to take a chance in a particular case. I would counsel against it, but it’s always the defense attorney’s draw.” The Pennsylvania ban on asking jurors to send a message came in the death penalty case of Jose “Little Bert” DeJesus. Philadelphia Deputy District Attorney Ronald Eisenberg viewed the ruling with regret. “The bottom line really ought to be whether some particular words from a lawyer’s mouth are likely to change a verdict or to swing a jury around . . . .How many jurors are going to suddenly change their vote because a lawyer made a biblical reference?” Eisenberg said. “And are jurors really going to change their mind because of some rhetoric about sending a message?” Eisenberg believes that prosecutors will continue to find creative ways to litigate. “We may lose some richness in what we say, but lawyers will find other ways to advocate their cause,” he noted.

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