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A death row inmate’s chance for a long life was born again when a judge overturned his sentence, finding that jurors had brought Bibles to deliberations while insisting that God’s law trumped Colorado’s. Adams County, Colo., District Judge John Vigil found that some jurors had Bibles at the table several years ago when deliberating. Jurors also had brought in reference notes they made from study Bibles they had consulted about the proper penalty for murder. Colorado v. Harlan, No. 94 CR 187 (Adams Co., Colo., Dist. Ct.). At the conclusion of the penalty phase of Robert Harlan’s trial in 1995 for murder, rape and kidnapping, the judge instructed the jury on the approach it was required to take when deciding Harlan’s fate. Jurors had to decide whether the prosecution had proved aggravating factors beyond a reasonable doubt, determine the existence of mitigating factors and then weigh them against each other. The final step was a moral assessment — whether the jurors believed beyond a reasonable doubt that the ultimate penalty should be imposed. At this stage, consideration of mercy and sympathy are permitted. Prejudice, bias, passion or arbitrary emotional responses are not. Deputy Public Defender Kathleen Lord argued in a brief that some jurors had impermissibly researched and discussed biblical passages while sequestered and during deliberations, and that this extraneous information may have influenced their decision to impose the death sentence. Adams County prosecutor Steve Bernard countered in his brief that these common passages were read merely for “comfort and inspiration.” Alternatively, he argued, such reading was part of the moral assessment jurors were called on to make, and that defense counsel had invited biblical discussion by making biblical references during closing argument. In the fall of 1995, an investigator interviewed several jurors at the behest of defense attorneys to probe for evidence of juror misconduct. What the investigator found was enough to get the court’s attention when raised in 1995, but procedural bars prevented a hearing for eight years until Harlan’s appeals were exhausted. Jurors were called to testify at an April 2003 court hearing and asked if they recalled having done independent biblical research, whether research notes and Bibles had been brought into the deliberations and what biblical passages had been read. The court found that Lord’s allegations were true, and that notes brought into the jury room contained such passages as: Leviticus 24:20: “…eye for eye, tooth for tooth.” Leviticus 24:21: “…but whoever kills a man shall be put to death.” The objective test for overturning a verdict in Colorado is “whether there is a reasonable possibility that extraneous information or influence affected the verdict.” Wiser v. People, 732 P.2d 1139 (Colo. 1987). Although Vigil thought Harlan’s sentence was warranted, he vacated it after finding that “there is a reasonable possibility that juror exposure to biblical passages requiring that death be the punishment whenever an individual takes another person’s life … affected … one or more juror’s decision.” Lord, the public defender, said, “There’s a bright line between talking about something that’s already a part of your character — as religion is for many people — and doing biblical research or any outside research and bringing that to the table. That’s one of the few lines the courts don’t permit jurors to cross.” This was a case of first impression for Colorado, which, in the past, had required reversals when jurors had used dictionaries or downloaded information from the Internet. Bernard, the prosecutor, argued that the Bible endorses mercy, too, and that defense counsel brought the biblical discussion into the jury room when she argued to the jury the parable of Abraham and Isaac. “I think that if we were talking about a guilt analysis, the presence of a Bible would be a lot more significant,” Bernard said. “But in sentencing, once you get past character, history and background, you get to a profoundly moral determination.” Under state law in effect when the crime was committed, there will be no new penalty phase and Harlan will be resentenced to life in prison. The judge’s ruling will be appealed.

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