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Lawyers’ talk about religion and sex didn’t sit well with an Appling County, Ga., judge presiding over a 1998 death penalty trial. And several Georgia Supreme Court justices, hearing the details at Monday’s oral arguments, weren’t pleased with it, either. “What would Jesus do?” defense lawyer G. Terry Jackson asked, as he appealed to the jury in the earlier trial to spare the life of his client. In another incident during the same trial, prosecutor John B. Johnson III asked a psychologist, who had been called as an expert witness, about accusations that he had sex with clients. Both times, a perturbed Superior Court Judge E. M. Wilkes III told jurors to disregard the references. The trial of Warren King, accused of killing a convenience store operator in 1994, continued . He was convicted and sentenced to die. At Monday’s arguments, Jackson, of Savannah’s Jackson & Schiavone, complained to the court that Wilkes should have granted a mistrial over the prosecutor’s question to a forensic psychologist, who testified that King was mentally retarded. Jackson also argued that the judge’s instruction to jurors to disregard his biblical reference was grounds for reversal. Jackson said he had been searching for the right words to appeal to jurors’ sense of mercy during the sentencing phase of the 1998 trial. “What did I do? I said, ‘What would Jesus do?’ That’s all I did,” Jackson told the justices. “I have a right to ask for mercy in a death penalty case.” Justice George H. Carley broke in. The trial court, Carley said, didn’t have a problem with the appeal for mercy, but with the reference to Jesus. Had a prosecutor made such a brief mention of religion, the case would never be reversed, Jackson said. Johnson, chief assistant district attorney for the Brunswick Judicial Circuit, told the court that religion was a “problematic area for all of us.” Lawyers shouldn’t refer to major icons of a religion, he said. What about a reference to the “wisdom of Solomon?” Chief Justice Robert Benham wanted to know. Solomon isn’t a major icon of Christianity, Johnson said. Was there a need for the court to clarify its position on the use of religious references? Benham asked. One problem, Johnson said, was that the impact of religious references depends on where a case is tried. What about referring to “an eye for an eye,” without connecting it to the Bible? asked Justice Carol W. Hunstein. “You couldn’t say that in South Georgia without a lot of people relating it” to the Bible, said Presiding Justice Norman S. Fletcher. Jackson agreed. Fletcher commented that usually it was the prosecution that strayed too far in the religious realm and the court usually would conclude the reference was acceptable. “At least until a recent case that I had something to do with,” he added, referring to a decision he authored earlier this year that reversed a Clayton County death sentence because the prosecutor buttressed his arguments to the jury with Bible quotations. The trial judge preapproved the reference to Bible passages that were cited to encourage the imposition of the death sentence on Anthony Carruthers. The case is Carruthers v. State, No. S99P1418 (Sup. Ct. Ga. March 6, 2000). Writing for the majority, Fletcher said that biblical references “inject the often irrelevant and inflammatory issue of religion into the sentencing process and improperly appeal to the religious beliefs of jurors in their decision on whether a person should live or die.” While fleeting references to religious texts during arguments are acceptable, those are distinct from references “that urge that the teachings of a particular religious command the imposition of the death penalty,” Fletcher wrote. As for embarrassing the psychologist with the question about the sexual allegation, prosecutor Johnson said he was trying to make the point that the psychologist claimed to be too sick to attend proceedings on the client complaint. Yet he was willing to appear for pay in court. “Why bring up the sex?” Fletcher wanted to know. “I can’t say why I did,” Johnson said, adding that had he known the “hullabaloo” it would cause, he wouldn’t have done it. “If we want to stop that kind of conduct in the future, how can we do that?” Benham asked.

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