THE BLOG
07/13/2011 11:06 am ET | Updated Sep 12, 2011

David Barton Misleads Focus on the Family on Death Penalty Case

At the beginning of July, Focus on the Family rebroadcast a speech by David Barton, titled the Founding of America. In the address, Barton, history adviser to GOP Presidential candidates Michele Bachmann and Newt Gingrich, sought to make the case that institutions of American government have become hostile to religion, in contrast to the Founding era. As an illustration, Barton told the audience that the Supreme Court overturned a murder conviction because a prosecutor used a Bible verse in his closing arguments. Here is Barton's version of the case:

I mean, you do something religious in the courtroom and you're in a lot of trouble, as evidenced by the case that we had at the Supreme Court not long ago, called Commonwealth v. Chambers. And that case came out of Pennsylvania. A man named Carl Chambers was convicted by a jury for taking an axe handle and brutally clubbing to death a 71-year-old woman to steal her Social Security check.

Not only was he convicted by the jury, he was sentenced to death by that jury. And yet, the Court overturned his conviction, because they pointed out that despite all the evidence and all the witnesses and all the testimony, something terrible had happened in the courtroom. They said that in a statement of less than five seconds, the prosecuting attorney had mentioned seven words out loud from the Bible. And the Court said, "We can't have that. So, despite the evidence, despite the brutal nature of this crime, you mentioned a Bible verse, now we've got to reverse the murder sentence of this brutal murderer, because you mentioned a Bible verse in the courtroom."

You see, today law and religion are enemies. They don't get along, but back then, they were like two yoke of oxen, pulling in the same direction, never to be separated.

This description is quite misleading. Barton makes it seem as though a brutal murder went unpunished because the Supreme Court (Pennsylvania's) penalized the prosecutor for citing the Bible. The facts of the case paint a completely different picture.

First, here are the facts Barton got right. In 1987, Karl Stephenson Chambers was convicted of robbing and the 1986 murder of Anna Mae Morris. The evidence was circumstantial but convincing to the jury and they found Chambers guilty of robbery and murder. During the sentencing phase, the prosecutor referred briefly to the Bible. The jury then rendered a sentence of death. Chambers appealed and based on the Bible reference, the PA Supreme Court vacated the death sentence.

At this point, the facts diverge from Barton's rendition. Barton says the "Court overturned his conviction," leaving the clear impression that the court let a guilty man go free. However, the conviction was not overturned. The initial death sentence was set aside so that a new sentencing hearing could be held. A new hearing was held and that jury came back with the same sentence of death. So Barton's contention that "the Court overturned his conviction, because they pointed out that despite all the evidence and all the witnesses and all the testimony, something terrible had happened in the courtroom" is simply not true.

Eventually, Chambers' death sentence was set aside in favor of life in prison, but this change had nothing to do with the use of the biblical reference in 1987. In 2005, attorney William Hangley argued before a York (PA) County judge that Chambers could not be executed because Chambers is mentally retarded. In 2002, the US Supreme Court ruled in Atkins v. Virginia that executing a mentally impaired person was "cruel and usual punishment." Chambers scored a 60 I.Q. as a middle school student and 74 as an adult inmate leading attorneys to argue that Chambers should not be executed. The court agreed which took Chambers off death row. Attorney Bill Hangley confirmed to me in an email that Chambers is still serving his life sentence.

Having established that Barton embellished the situation to make it seem as though the Pennsylvania Supreme Court was prejudiced in the extreme against religion, let me come back to what the prosecutor said and the rationale of the Court for their ruling. In making a case for the death penalty, York County prosecutor Stan Rebert told the jury, "Karl Chambers has taken a life. As the Bible says, `and the murderer shall be put to death.'"

Why did the PA Supreme Court have a problem with that? Essentially, they argued that the prosecutor improperly appealed to a law other than civil law. Although Pennsylvania allows some references to the Bible in court, the Supreme Court objected to this one for specific reasons. Here is the relevant section from Commonwealth v. Chambers:

Finally, Appellant [Chambers] argues that the prosecutor overstepped the permissible bounds of oratorical flair in his closing argument by referring to the Bible. The record shows that the prosecutor stated, "Karl Chambers has taken a life." (R., p. 1201). "As the Bible says, `and the murderer shall be put to death.'" (R., p. 1201). Defense counsel objected. The trial court immediately noted this objection and gave a curative instruction to the jury...

Here, the prosecutor argued, "As the Bible says, `and the murderer shall be put to death.'" This reference is substantially different than the references tolerated in Henry and Whitney where the prosecutor allegorically likened the Defendant to the Prince of Darkness mentioned in the Bible to establish that he was an evil person. More than allegorical reference, this argument by the prosecutor advocates to the jury that an independent source of law exists for the conclusion that the death penalty is the appropriate punishment for Appellant. By arguing that the Bible dogmatically commands that "the murderer shall be put to death," the prosecutor interjected religious law as an additional factor for the jury's consideration which neither flows from the evidence or any legitimate inference to be drawn therefrom. We believe that such an argument is a deliberate attempt to destroy the objectivity and impartiality of the jury which cannot be cured and which we will not countenance. Our courts are not ecclesiastical courts and, therefore, there is no reason to refer to religious rules or commandments to support the imposition of a death penalty.

Our Legislature has enacted a Death Penalty Statute which carefully categorizes all the factors that a jury should consider in determining whether the death penalty is an appropriate punishment and, if a penalty of death is meted out by a jury, it must be because the jury was satisfied that the substantive law of the Commonwealth requires its imposition, not because of some other source of law.

Because the prosecutor's argument in favor of the death penalty reached outside of the evidence of the case and the law of this Commonwealth, we are not convinced that the penalty was not the product of passion, prejudice or an arbitrary factor and, therefore, pursuant to our Death Penalty Statute, we must vacate the sentence of death and remand this matter for a new sentencing hearing. 42 Pa.C.S. § 9711(h)(4).

Accordingly, the conviction of murder of the first degree and the conviction and sentence imposed for robbery are affirmed, the sentence of death is vacated and the matter is remanded to the Court of Common Pleas of York County for a new sentencing hearing.

I do not believe the reasoning of the PA court indicates hostility toward religion per se. On point, the money quote from the Commonwealth v. Chambers is this:

Our courts are not ecclesiastical courts and, therefore, there is no reason to refer to religious rules or commandments to support the imposition of a death penalty.

This was not a situation where the Court discriminated against religious speech. The York County prosecutor invoked Mosaic law instead of the governing statute - the laws of PA. In conservatively religious York County, PA, I can understand why such directions might promote an outcome which would be biased toward an outcome favorable to one religious view but not another. There are many outcomes envisioned by various religions about what would be proper in cases of murder - and the death penalty is not one of them. The courts cannot include prosecutorial persuasion which appeals to authority other than the statutes which cover all citizens.

David Barton offers this case as evidence that "if you do something religious in the court room, you're in a lot of trouble." While there may be cases where courts overreach, Commonwealth v. Chambers is not one of them. It seems to me that Barton's complaint could be stated more accurately, "if you attempt to implement a pro-death penalty interpretation of Christianity in court as a means of prosecuting a case, then you are in trouble."

There are religious traditions that oppose the death penalty on religious grounds. Some of those people might argue the fact that Karl Chambers is alive but in prison today is the best religious outcome. It is certainly possible that those opposed to the death penalty on religious grounds are glad that the PA Supreme Court restricts religious speech calling for the death penalty based on the Old Testament. By inaccurately citing the Chambers case, it seems to me that Barton is not complaining that the PA Court disrespected religion in some general way. Rather, he is troubled that the court failed to privilege his religion.