As an attorney, Democrat, and Episcopalian, I am characteristically reluctant to talk openly about my faith. But here, in the “Bible Belt,” people bring their faith into the courtroom, admittedly or not. Judges do it; jurors do it; parties do it; the lawyers do it too. Even so, as trial lawyers, we’re often afraid to discuss religion because of the perceived risk that we may offend and alienate jurors. I’m no longer afraid. Texas is home to some of the largest churches and highest church-attendance rates in the country. Texans are very comfortable talking about their faith—and yours too, if you let them.
Rather than avoid matters of faith in trial, I embrace them, and incorporate scripture that intersects with the law or facts of my case into voir dire. Two matters, in particular, have a frequent place in my criminal trials—the Ninth Commandment’s prohibition against bearing false witness and the beatitude of mercy. But how I overcame my fear and found the strength to first discuss the Ninth Commandment in voir dire may have been the result of divine intervention.
I began thinking about using the Ten Commandments in trial after a conversation with a friend who has labored for years to erect memorials to the Ten Commandments at courthouses around the country. One day on the phone, he asked what I thought about his work. I told him they were going about it wrong and should focus on having plaques of the Ninth Commandment placed in every courtroom in America, because witnesses in cases about the others lied all the damn time. He said he’d stick with all ten.
A few weeks later I was preparing for voir dire in a case where the facts did not allow me to argue that the police, while sincere in their beliefs, were mistaken. As any lawyer who has been to a David Burrows seminar may recall, reasonable doubt is more frequently found when jurors have the option of believing someone is mistaken rather than lying. But, for my client’s defense to be plausible, the police had to be lying—a tough sell to a very red Harris County jury. So, I took a hard right turn. I find that to earn credibility with conservative jurors, one often has to take a page from Alcibiades and out-Spartan the Spartans. My sponsor was the rabbi on the panel.
As I looked at the dozens of venirepersons on the benches before me, I saw a familiar face. In the middle of the second row was a rabbi who had taught one day of my Jewish Law class at the University of Houston Law Center eight years before. I promptly called on him, and said, “Rabbi, when I was in law school, Yale Rosenberg brought you in to teach a day of our class, and you said something I’ve never forgotten.”
His face lit up, and he recalled: “Yes, I remember that. It was a lot of fun.” I had him, and, as I was soon to learn—he had everyone else on the panel. And I found the courage to bring faith into the courtroom.
After he spoke, I chose another person and asked what they thought about the controversy overhanging the Ten Commandments in courthouses. They thought it was a good idea because people needed to know where the law came from and what was important. Other jurors nodded their head, and gave similar views.
Smelling blood, I bit and said I thought it was a good idea, too, but for a little different reason. I, then, turned back to the rabbi and asked him what the Commandments said about witnesses. And he reminded us that there was a prohibition against bearing false witness against others. I claimed I couldn’t hear and had a couple of people, who I thought hadn’t been paying attention, repeat it back to me.
Another venireman answered a question about what the other nine things were. I listed them, and asked what it said to them—that bearing false witness was so important that of all the things the ancients and the Almighty (a nod to the skeptical on the panel) could’ve written down, they picked false witness to be one of the ten—that it was as important as telling people not steal, kill, have false idols, and covet? That stirred some thoughts, but not a lot of talk.
With a little prompting, the rabbi said that maybe it was because saying false things about people can cause them a lot of trouble, yet was easy to do compared to the others, one just talked. That made sense to the panel. After all, as another juror pointed out, not everyone has the tools to fashion a golden calf in the garage.
I then told them what I told my friend, that I thought that the Ninth Commandment needed to be in all Courtrooms because it was the one most likely to be broken in courtrooms whereas the others were usually broken before anybody got there. That seemed to make sense to everyone but the judge and the prosecutors, as usual. No doubt they knew their own sins best. Focusing on a juror who had yet to speak, I asked him to tell us a story of a time when he was accused of doing something he didn’t do. He said he’d been accused of cheating in high school by another student. I asked if the person was lying or mistaken. He said the guy was lying and it was his word versus the other guy’s because it was a week after the test had been taken. I asked him how it felt, and he said frustrating and powerless. He didn’t know why the guy “lied on him.” I asked others to tell their stories. Many had one to tell. Some of them didn’t know why it happened to them, either.
I inquired of each, considering their own experience, whether they needed to know why a witness might be lying to know that they were lying. Some said it was helpful, but as with many things in life, you may never know why. One man said, “sh%$ happens.” Everyone but the judge laughed. I found a way to strike the few people who needed to know why. As a safety, I used a scaled question that asked people their level of agreement with the statement, “A police officer is just as likely to be mistaken or dishonest as any other witness, including a defendant who testifies.”
To my amazement, at the conclusion of voir dire, when it came time to make challenges for cause and peremptories, the state failed to strike the rabbi. At trial, the police were accused, by me, of lying (they were) about the circumstances of my client’s arrest. Then the Defendant and his brother-in-law both testified, convincingly. The rabbi was elected foreman of the jury. Less than an hour later, they returned an acquittal. They didn’t believe the police and didn’t like the prosecutors.
Of the two assistant district attorneys on the case, one now hates my guts and the other became a close friend—introducing me to the woman I would later marry, yet another prosecutor. After the trial I asked my friend why they didn’t strike the rabbi. They said: “Why would we? We thought he would see your client was the one lying.” My personal rapport with him apparently didn’t bother them. I knew neither to be churchgoing folk.
As we were all packing up to go home, one of the other jurors asked me what the rabbi had said in class that I had never forgotten. I told them he said: “People are always coming to me saying Rabbi, I never see God in my life. It seems like in the Torah he’s behind every bush and talking people’s ears off, but I don’t see him at all. I tell them that God has taught us in the same way one teaches a child to walk: At first you hold the child up, then by his hand, and then you step away and let the child come to you.”
The other five jurors looked at him with wonder, and he addressed them: “I don’t know. I say so much it’s hard to remember, but it sounds like something I would say”—words I remember as well as his original statement.
My client was acquitted, in part because I was able to harness our shared Judeo-Christian values to my client’s defense. No, God didn’t tell the jury to acquit. But the words of the Ninth Commandment reminded jurors that witnesses, in fact, lie. They didn’t need to take my word for it; they had it on higher authority.
