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Mark Osler

Mark Osler

Posted: May 25, 2010 08:27 PM

Jesus Christ, Capital Defendant

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In the Fall of 2000, I moved from Detroit to Waco, Texas, leaving a job as a federal prosecutor to teach at Baylor Law School. There were many changes to adjust to -- including the highly Christianized political culture in Texas and the fervent support for the death penalty that has made Texas the centerpiece for capital punishment in the Western world.

One day, sitting in church and preparing for communion, the juxtaposition of these two Texan mindsets became clear in my head -- the same Texas that held firm for the death penalty also was dominated by a faith that had at its center a wrongful execution. I walked out of church pushing the two ideas together, and soon they meshed. Shortly thereafter, I came up with what might be the worst idea ever by an untenured faculty member at a Baptist university -- I would stage the trial of Christ in that Baptist church, under Texas capital punishment rules.

And so we did. I recruited my mentor and colleague Bill Underwood (now the President of Mercer University in Georgia) to be the other attorney in our drama. He agreed, with one caveat: He would be the defense attorney, leaving untenured me to prosecute Christ in the long shadow of Baylor, the world's largest Baptist university.

Over the course of four weeks we selected a jury, made opening statements, presented witnesses, and made our arguments before leaving the congregation to deliberate. In the end, it was a compelling and dramatic experience for all of us. Not one but two members of the congregation had in fact served as the forepersons of juries that had each condemned a prisoner to death, adding to the gritty reality of the dialogue. My intent had been to confront politics with faith, and that project was successful. If nothing else, after our trial the idea of capital punishment could not be divorced from Christianity for those of us who were there.

My own journey was not done, though. I am someone with sympathies to the arguments for capital punishment and continue to believe that many of those arguments are principled. To further explore the idea I began to write a book, and it was this project that produced Jesus on Death Row (Abingdon, 2009).

Immediately, I became more acutely aware of my own significant limitations. I knew a lot about criminal law but not nearly enough about the stories and theology relating to the trial and execution of Christ. As I learned more, though, I had the same experience time and time again -- the gospel stories fit neatly into what I knew of criminal law, and the experiences of Christ repeatedly raised the same concerns I had about the modern criminal process. For example, from my own experiences I was troubled by the role that confidential informants play in the type of criminal prosecutions I had often directed as an Assistant United States Attorney in Detroit. Those informants were often motivated by surprisingly large amounts of money, and as I dug into the gospels I immediately was confronted by Judas, an informant who worked for money and performed a common function of people in that role: identifying the place where a defendant could be arrested.

That arrest, too, had aspects that were shockingly familiar. When we were doing a strategic arrest, we would conduct the raid at dawn to make sure that the target would be there and to reduce the chance of violence. And there, in my own worn Bible, I found the same thing, as Jesus was arrested only after the apostles were asleep.

Nor was that the end of the comparisons, some of which ran straight to the heart of the starkest problems in our contemporary system. The witnesses against Jesus conflicted and weren't credible, so the prosecutors searched for more who might tell a better story. In contemporary prosecution, this is akin to the search for defendants who will cooperate and testify credibly in exchange for a good plea deal, a process that sometimes skews justice. Have you ever wondered why that servant girl found Peter in the courtyard and asked if he knew Jesus? To a prosecutor, the answer is easy -- she had been sent to find additional witnesses to bolster the case.

Or take even one seemingly farcical part of Christ's trial, at its conclusion. We are told that the prosecutor, Caiaphus, was frustrated with these conflicting witnesses and ripped his shirt, yelling, "Crucify him!" Sadly, that is a physical manifestation of an emotion most prosecutors will feel at one time or another. There can arise within prosecutors (even within me, at times) a strong belief that the defendant is guilty and dangerous even when the evidence has failed to prove that true, leading to an indescribable frustration. It is in these moments that prosecutors most often stretch, argue unfairly, or twist facts in an effort to bend the jury's will to what the prosecutor believes fervently to be true. It is this passion that too often creates injustice in our own day, as in Christ's.

None of these echoes of Christ's journey in our modern system, of course, is in itself an overwhelming argument against the death penalty. Nor is any bit of that story more of a condemnation of capital punishment than the fact that Christ came upon a legal execution and told the executioners that they did not have the moral authority to continue the killing (in John 8, the stoning of the adultress). Still, I do think that there is something powerful in simply considering Christ as a criminal defendant. That subtle change in perspective can change worlds. No, Christ was no murderer. He was the opposite of the venal criminals who largely populate death rows. Yet, it is at Christ's invitation that we visit him when we visit those in prison, and I would imagine that there is no exception for death row. If it was God who wrote the story of Jesus as a criminal defendant, then it was God who told us that how we treat criminal defendants is important, and we need to heed that message even when it runs against our most fervent urge towards retribution and finality.