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Jesus on Death Row
The Trial of Jesus and American Capital Punishment
By Mark William Osler Abingdon Press
Copyright © 2009 Abingdon Press
All rights reserved.
ISBN: 978-1-4267-2289-9
CHAPTER 1
THE STORY OF JESUS CHRIST, DEFENDANT
We live in a culture obsessed with criminal law. Television programs every night of the week show lawyers and investigators at work, trying cases and unraveling the complexities of a wide variety of crimes. Scores of movies also focus on criminal law, even creating entire realms of crime-solving in an alternative reality that includes superheroes.
Beyond fictionalized entertainment, there are few news stories with the long-term staying power of the prosecution life cycle: a juicy crime, arrest, trial, and sentence. Only a handful of stories have captured the public imagination in the past generation in the way that the arrest and trial of O. J. Simpson did, and it is hard to find a national news outlet that doesn't rely heavily on high-profile criminal cases as a mainstay for programming. From the trial of Martha Stewart through round-the-clock coverage of horrific terrorist acts, the news channels echo the fictional television dramas in their obsession with criminal law, creating news based on "celebrity justice" when no truly significant case is available to talk about. The saturation of our culture with true and untrue stories from the field of criminal law is nearly complete.
But why? Criminal law is but a small part of the field of law. On my faculty of twenty-four professors, just two of us teach criminal law courses. How, then, is criminal law able to so completely capture the imagination of our culture? The reason is simple—compelling stories. We love to hear about the multiple, intertwined stories of the criminal defendant, the prosecutor, the police, and the jury. The criminal case has all of the requisites of an epic tale built right in, starting with the accusation of a gross moral failure. Throw in the presence of sex and violence, the search for truth, and multiple versions of events to create uncertainty, and a compelling tale is guaranteed.
These stories drew me into the practice of law and into criminal prosecution. To those of us who turn by hand the gears of criminal justice, it is these stories, the unremitting flood of tragedy, that enliven us, that make us wake up before dawn the day of trial, that wear us down emotionally, and that eventually erode the senses like drops of water over rock.
Perhaps it should come as no surprise, then, that the story at the center of the faith affirmed by 85 percent of Americans is set in the realm of criminal law, replete with the cycle of investigation, arrest, trial, and appeal familiar to even the most casual television viewer. Somehow, though, we don't make the connection. I was a prosecutor for five years, attending church the entire time, and I never contemplated that my vocation and faith had a strange and strong narrative link. While Christians focus on Jesus Christ, Savior and Jesus Christ, Teacher, and some now urge us to consider the possibility of Jesus Christ, Father and Jesus Christ, Husband, we have largely ignored what is so thoroughly described in the Bible: Jesus Christ, Defendant.
The truth is that, to a remarkable degree, the story of Christ replicates the very structures that shape criminal law today. Even more compellingly, the same troubling issues raised by Jesus' case are still with us and are at the center of some of our most vigorous moral debates. For example, academics and others have focused recently on the problems associated with a system of investigation that relies heavily on confidential informants who provide information to the police for money. A new debate? Hardly. Judas's thirty pieces of silver, given for snitching on Jesus, are one of the most compelling images of the Bible.
One significant difference between Christ's trial and modern criminal practice is that Jesus was prosecuted by religious leaders, while our legal system is often described as secular. However, we must remember that the religious leaders who prosecuted Jesus had an important political role, as was exemplified in the trial of Christ. In that place and time the line between religion and government was sometimes hard to discern, and those who placed themselves in positions of religious authority often sought to exert political authority as well.
The modern criminal case has several stages, each of which presents a different challenge and cast of characters. The same can be said of the experience of Christ as a criminal target and defendant. I will start by briefly describing those stages as an overview. Then I will fully develop each stage, the structure of the modern case and the process faced by Christ, in the following chapters.
The Investigation
As a prosecutor, I loved putting together cases, loved the challenge of leading a team of investigators in getting to the truth and bringing wrongdoers to justice. It was intensely satisfying to work out the puzzle of a conspiracy or to identify the man or woman who was truly receiving the benefits of a crime.
I worked with investigators from more agencies than I can remember, an amalgam of initials and names already well known in the popular imagination—the IRS, the FBI, the Secret Service, the ATF, the DEA, the Detroit police, the state police, and the INS. In starting off a case or in locating defendants, these investigators interacted with the defendants themselves. They bought drugs from the defendants, had conversations on the street, followed them home, and made a point of knowing the lives of those they would arrest. Part of that interaction, especially undercover work, is often an attempt to get the target of the investigation to do something, such as sell drugs, while the officers are watching and evidence can be gathered.
Similarly, the Bible tells the story of Christ as the target of investigation, who had frequent contact with his accusers prior to his arrest. They encountered him, challenged him, and monitored his actions. In the last weeks of his life, it seems, he was almost constantly under surveillance by the authorities who would eventually charge him. Time and again, the Pharisees and scribes tried to get Jesus to say or do something that they could take to the Roman authorities as proof of criminal activity. Like narcotics officers with a wad of money to buy marijuana, they were gathering evidence they could use against one they already suspected.
The Confidential Informant
In my cases, the target of an investigation frequently was hard to find. Not surprisingly, people who do illegal things often keep it quiet and stay out of the public view. Generally, the more significant the crime, the more likely this is to be true. As some criminals describe it, they want to keep things "inside the box," or within the circle of people who are involved. The criminal's desire for secrecy and wariness of outsiders are part of what make confidential informants and cooperating defendants so valuable to investigators. Confidential informants and cooperating defendants are enticed by the government to provide information about crimes they know are occurring. Confidential informants are paid, some quite handsomely, while cooperating defendants hope to receive a break in their own cases.
Informers of either type are usually involved in illegal activity, as would be expected, since that is how they get information from "within the box." Sometimes prosecutors tell juries, "You don't find swans swimming in the sewage," to explain the use of informants. To know what is going on in the muck, you need someone who is already there.
For example, one of my cases was made possible only by the cooperation of such a person inside the ring. Our informant, who had a history of low-level criminal activity, was working with a student at the University of Michigan who was preparing to print large amounts of counterfeit money using a computer. The student was very, very good at his task, and he was so careful that he started by counterfeiting one-dollar bills, which he used to test their ability to fool change machines. The student had assembled an unusual group of conspirators to further his plot, including a fellow student to help with the production, a real estate agent to aid in the distribution of the counterfeit bills into the community, and a cab driver, our informant, to help with minor tasks and transportation. The cab driver contacted the Secret Service about the plot before it reached fruition, hoping to get a break in another case and cash for his efforts. This informant aided us in many ways, including the tip about when and where all of the conspirators would be assembled so that we could conduct an efficient search and arrest.
The circle of Jesus' trust, of course, was not a ragtag band of college students, but the twelve apostles who surrounded and aided him. Much of what they did remained secret because Jesus was well aware that the authorities were monitoring him. And, like the cab driver, one of those from within the circle went to the authorities to provide information leading to Jesus' arrest. Intriguingly and typically, it was not the authorities who sought out Judas, but Judas who sought out the authorities. Like the cab driver, Judas tipped off the authorities about when and where all of the conspirators would be assembled for search and arrest. For that, he was paid thirty silver coins, and he has remained a despised figure in the public imagination for nearly two thousand years.
Strategic Arrest
Information provided by informants often leads to the stage after investigation, the arrest. Once investigators are ready to make an arrest in a case, they generally won't just send an agent over to the defendant's house to pick up him or her. Arrests are necessarily strategic, to serve several goals. Primary among these goals are gathering additional evidence and reducing the chance of violence or escape at the time of arrest.
In furtherance of this second goal, the arrests in my investigations were often made at six in the morning when the defendant was usually asleep and alone. That better enabled the agents to surprise the target and minimized the chance of being shot or hurt. The power of darkness gave the agents a great advantage.
Those arresting Jesus were certainly strategic in their actions, for the same reasons the police I worked with planned ahead. The authorities considered, for example, arresting Jesus during the Passover festival, but chose not to out of fear that the followers of Jesus might riot (Mark 14:2). Instead, the authorities elected to come at night in order to minimize the role of the apostles and Jesus' other followers. Intriguingly, Jesus seemed to have known their plan, and Matthew 26 describes his efforts to keep his followers awake through the night.
Jesus also knew exactly what a strategic arrest was. He confronted the officers with their contrivance, noting that "when I was with you day after day in the temple, you did not lay hands on me. But this is your hour, and the power of darkness!" (Luke 22:53).
Violence at the Arrest
If one chooses to work in the field of criminal law, one assumes a heightened risk of suffering violence. While that broadly is true, the risk is not the same for all players on the side of the prosecution. There is a significant risk for those at the bottom of the investigative organizations—patrol officers, new agents, and those from low-status agencies. Overwhelmingly, they are the ones who get shot. As with the military, those who make the strategic choices are not usually the ones who take the greatest risks of physical harm. Rather, it tends to be poor and working-class persons on both ends of the guns when law enforcement comes into contact with criminals.
Though many people appear to have been involved in the arrest of Jesus, the interloper with the lowest status, a slave named Malchus, had his ear lopped off by Simon Peter. As always, Jesus showed mercy to poor people, even when they were present only to arrest him. Before leaving with his captors, he touched Malchus and healed him of the wound inflicted by his apostle (Luke 22:51).
The Initial Appearance
A criminal's initial appearance or arraignment is one of the simplest proceedings in the criminal case. The process of bringing the defendant before a magistrate judge to be informed of the charges is called an initial appearance if the arrest is on a complaint, and an arraignment if it follows an indictment by the grand jury. Once the charge is read at this kind of proceeding, the defendant is allowed to enter a plea on the charge. One might think there are two possible answers to this question of whether the defendant is guilty or not: yes or no. In contemporary practice, however, the most common outcome is for the defendant to stand mute and say nothing. In these instances, the judge typically enters a plea of not guilty on behalf of the defendant based on his or her silence, and the defendant proceeds to trial.
This bit of Kabuki theater seems to have been followed almost precisely in the case of Christ. Before going to trial, according to John 18, Jesus was sent to Annas, a high priest. He questioned Jesus about the charge of blasphemy, and Jesus responded essentially by standing mute, saying, "Why do you ask me? Ask those who heard what I said to them; they know what I said" (John 18:21). Like the defendant arraigned in an American court, Jesus declined to claim guilt or innocence, and left the prosecution to its proofs.
The Last Meal of the Condemned
It is almost a set piece. In press accounts of executions, there is a near ritualistic description of what the condemned person chose for the last meal, usually some simple plate: steak, potatoes, a chocolate brownie. Perhaps we find this detail so compelling because it is a part of the process that is familiar to us, choosing our favorite foods. Or perhaps we focus upon it because its very simplicity makes the condemned person seem more real.
At the time of the Last Supper, Christ knew that he was to die before he ate again. In arranging the meal, Jesus sent out his disciples to find a specific man, and they were to say that Christ's "time is near" (Matt 26:18). At that meal, the Last Supper, he told them, "I will never again drink of the fruit of the vine until that day when I drink it new in the kingdom of God" (Mark 14:25). As with condemned persons in modern-day American prisons, that last meal is made real and human, even amidst the mists of transubstantiation, by the bare simplicity of bread and wine. In both our prisons and the upper room where the Last Supper was held, the meal is a feast not because of what is served, but because of the facts surrounding that food.
The Provision of a Trial
The proceeding before the council at which Caiaphas prosecuted Jesus had all the trappings of a trial. The fact that there was a trial at all is an important marker because it invites the consideration of the process as a criminal case. To a trial lawyer, the dynamics of the event were those of a trial—the uncertainty of it, the impact of emotion, and the troubling credibility judgments that the jury was forced to make.
The Gospels thoroughly and compellingly described the problems with the witnesses, most of whom lacked credibility in their eagerness to testify at Christ's trial. When I was a prosecutor, there was perhaps one element in my arsenal of evidence more troubling than a reluctant witness—an overeager witness. People are motivated to testify for the government by a variety of factors, ranging from simple vindictiveness toward the defendant to the desire of cooperating defendants to please the prosecutor in order to get a better deal for themselves. The very real danger with such motivated witnesses is that they tend to say things that they believe will most likely result in a conviction rather than tell the simple truth. As a result, such witnesses can present testimony that then conflicts with that of other witnesses, or even the chronology of events presented in the government's opening statement.
Jesus' prosecutor, Caiaphas, faced the dilemma of the overmotivated witness. When asked individually what Jesus' blasphemy was, they made different claims about what it was, exactly, that Jesus had said (Mark 14:59). The Gospels made a point to describe both the problem (their eagerness) and the result (conflicting testimony), the same danger and reality we sometimes see manifested in trials today.
A myth propagated by television accounts of criminal law is that defendants almost always take the stand on their own behalf and try to explain away the charges. In fact, in many, if not most, cases that go to trial the defendant does not testify on his or her own behalf, on the advice of the defense attorney. The defense attorney might have made that recommendation because letting an untrained speaker allocute is risky, or because keeping the defendant off the stand will prevent the admission of prior crimes into evidence. In other cases, it may simply be that the best defense is to leave the government to its proofs.
(Continues...)
Excerpted from Jesus on Death Row by Mark William Osler. Copyright © 2009 Abingdon Press. Excerpted by permission of Abingdon Press.
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