Tuesday, October 21, 2008

Another Goddamned Podcast #35:
October 16, 2008

THIS WEEK - Court Cases, Religion, and Reproductive Rights for Men

Original audio source

The Herd gets right down to business discussing the court case of Lucero v. Texas where the foreman read a verse from the Bible and appears to have changed the jury's decision. Chappy is disappointed, but with whom? And are SI and OG too comfortable in their own opinions? (00:00)

Legal discussions aside, some court cases are too comedic to be taken seriously. Is it possible to sue a god? And can there be a lawsuit that's completely frivolous? What happens when men sue for reproductive rights? And should OG just lighten up? (18:03)

We find out the scientific reason behind the cancellation of the Jewel of Medina by Random House and what we really do with those votes you cast in the poll. (39:36)

Opening Music [00:00]: excerpt from "Another Goddamned Draft"
Bridge Music [16:47]: excerpt from "One of Many"
Bridge Music [38:20]: excerpt from "Disco Is Not Dead"
Bridge and Closing Music [40:59]: excerpt from "As Jazzy as I Get"
(All music: copyright 2008 by Rachel Murie)

This Week's Goddamned Links
Scripture Influences Jurors
Suit Against God
Men's Reproductive Rights Case


PhillyChief said...

I have to object to the idea that the man is always equally responsible for a resulting child from a sexual encounter. If a woman promises she's practicing birth control, shouldn't a man have an expectation of truth being told? If you say no, then what kind of level of trust does that represent in a relationship? Let's assume the woman is honest, but Mr. Man, being the responsible one, says he still "wants to be sure" and uses a condom and/or wants the woman to employ something. Isn't that threatening the relationship? I can just hear her now, "what, you don't trust me?"

So trust the woman you might be in love with or risk losing that love by taking precautions against a child (and potentially crippling financial problem) which could be seen as an act of distrust. Hmmmm

It would almost seem like today a man needs to have a pre-coital agreement signed, witnessed and notarized or else risk a heavy financial burden (among other things).

As for "the risk of playing the game", perhaps the religious are going about it all wrong. Rather than sell abstinence for its own sake, perhaps they should be selling how ineffective contraceptives and birth control pills are. Fuck purity, so to speak.

The Exterminator said...

Interesting podcast. But you guys have the Lucero case all wrong. Since when can the law stifle a juror's right to speak his or her mind? That's the whole point of a jury; to debate until the members come to a decision. As far as I know, short of introducing new "evidence" into the deliberations ("facts" that a juror may have read or heard through the media), the jurors are free to use any kinds of arguments they choose to persuade one another. Hell, go watch Twelve Angry Men; Henry Fonda even produces a knife that's nearly identical to the murder weapon.

The only way the court could legitimately decide in favor of the defendant, I think, is if it deemed the bible evidence that was not introduced as part of the case. But that's kind of a stretch, isn't it?

By the way, Henry Paulson turned me down for a handout.

Anonymous said...

Philly - would it be possible for the guy to present his birth control measure as just an extra precaution? That way, it's a matter of the couple doing everything possible (short of abstinence) to avoid an unwanted pregnancy, rather than a matter of trust. After all, no birth control method is 100% foolproof.

Ex - I laughed out loud when I read, "Hell, go watch Twelve Angry Men; Henry Fonda even produces a knife that's nearly identical to the murder weapon." I didn't realize that movie was a documentary; I thought it was just good entertainment.

Jurors presumably do bring all sorts of arguments into the courtroom with them. And lots of them probably quote scriptures to each other too (I'd love to be a fly on the wall when an iman, a rabbi, a priest and a Pentecostal all start quoting scriptures at each other - that would be entertaining). Nevertheless, contrary to what our neighborhood Christofascists want us to believe, the Law of God is not the Law of the Land in America. There is no place in any American courthouse for any holy book, including Bibles for swearing to tell the truth, yada yada yada.

In Lucero we have a case in which guilt had already been determined. The only question left was whether the penalty should be life imprisonment or death. Being swayed to impose one penalty rather than the other on the basis of what God's Law says is acceptable grounds, rather than what American Law says is acceptable grounds, is, in the eyes of this American, unacceptable.

PhillyChief said...

Would it be possible? Yeah, if the woman was an intelligent, rational woman. I'll stop there.

The Exterminator said...

So are you suggesting that we ban all religious references from jury deliberations? Even I, a militant atheist, am uncomfortable with that.

Which is not to say that if you or I were on a jury, we wouldn't dispute the efficacy of such a tactic. But many juries have to deal with differences of opinion amongst their members, and, I think, any argument to try to swing those on the other side is fair game. The jury doesn't represent the government; it represents itself -- and, ideally, justice.

Perhaps SI can give examples of topics that are legally barred from jury room debates.

Anonymous said...


It would be impossible to ban all religious references from jury deliberations. People will certainly speak freely about whatever they hold in their heads, and many people have lots of scriptures stuffed up there. If people want to quote stuff from memory, there's no stopping them. People like you and me would be able to point out the fallacy of expecting everyone in the room to adhere to one juror's religious views, but we wouldn't be able to stop people from saying what they believe. And that's okay.

All of the above is a different matter from allowing someone to read a Bible passage to other jurors. What I said in my previous comment was, "There is no place in any American courthouse for any holy book...." Jurors don't need to take Bibles, Korans, etc., into the jury room with them, and the government certainly should not be equipping jury rooms with any literature not related to American jurisprudence.

The Exterminator said...

So are you suggesting that all books be banned from the jury room, or shall we single out the bible, koran, book of mormon, analects of confucius, and upanishads. What about Greek mythology and Grimm's fairy tales?

And why stop at books? Perhaps all paper that has been written on at all should be confiscated. Sleeves and palms should be examined for cleanliness. Wallets and purses should be searched for stray snippets of wisdom copied onto business cards and cash register receipts.

Is that your position?

Spanish Inquisitor said...

Philly: It would almost seem like today a man needs to have a pre-coital agreement signed, witnessed and notarized or else risk a heavy financial burden (among other things).

Wouldn't work. At least in my state. All agreements involving bargaining away the rights of a child are unenforceable, and against public policy. As long as the courts are seen as the protector of the rights of children, the man has to always assume the woman is lying. If that results in a loss of trust, well, the courts say, tough shit. You're adults. The child comes first.

Ex: Since when can the law stifle a juror's right to speak his or her mind?

I think you're intermingling two distinct concepts. Freedom of speech and right to a fair trial. I think the former always gives way to the former.

Very strict rules are put in place to ensure that a jury bases it's decision of guilt or innocence on the evidence, and nothing else. Extraneous, outside matters can and should be firmly regulated, both in the courtroom under the rules of evidence (where a Bible quote would be excluded), and inside the jury room, regardless of whether it infringes on some juror's freedom of expression.
Yes, the jurors certainly have a right to use whatever persuasive arguments they want to come to a consensus, but it must be based on the evidence they heard and saw in the courtroom. Not on something an individual brings into the jury room after the fact, whether it's in an actual Bible, or in his mind, previously memorized. It is the law of the state that they must follow, not some religious law, so a bible quote is not only prejudicial, it's irrelevant to their deliberations.

If they can say anything, then they can say, for example that they heard that the defendant was a homosexual, or a bigot, or a [insert pejorative] and if it sways the jury, then it's OK under the guise of freedom of speech? I don't think so. Just because the Bible is commonly considered good, or at worst benign doesn't mean that it should be considered innocuous. If it actually causes the jury to impose the death penalty when they would otherwise not do so, then it's clearly not.

The only way the court could legitimately decide in favor of the defendant, I think, is if it deemed the bible evidence that was not introduced as part of the case. But that's kind of a stretch, isn't it?

Actually, no. If something is introduced in the jury room that was not introduced in the courtroom, in the record, then how is an appellate court supposed to know what evidence the jury considered? If the bible was read in the jury room, and not the courtroom, then that's "evidence that was not introduced as part of the case", right? Evidence isn't just the testimony of witness, and pictures of the crime scene. It's anything the jury is asked to consider in its deliberations. Including a bible reading outside the hearing of the defense attorneys. If they tried to read that in the courtroom, and I was the attorney, I would have objected to bloody hell.

And I agree with Chappy. Twelve Angry Men was fiction.

Perhaps SI can give examples of topics that are legally barred from jury room debates.

The existence of insurance in a personal injury claim. It's irrelevant to liability, but everyone knows it exists. The Bible is the same thing. If an individual reaches inside himself and uses his Bible knowledge to reach his decision, there's not much we can do about it, any more than someone can prevent me from using my atheist tinged rationalism. Of course, if he wants to beat another juror over the head with it, there are more subtle ways to do so. Work it into common speech and argument, without quoting chapter and verse. This particular juror was probably your typical evangelical proselytizer. He probably thought nothing trumped a good scriptural quote.

Spanish Inquisitor said...


I think the former always gives way to the latter.

Anonymous said...

SI, thanks for your thoughtful comment.

Ex, yes, I would say that any literature not related to the case at hand should not be allowed in the jury room during deliberations. The jurors are there to rule on matters of law, not to catch up on their summer reading. If they're weighing evidence, and attending to business, why would they need The Republic or any other literature with them? The courthouse could provide notepads and pens for them to take notes as they talk, but they don't need to take extraneous shit inside with them.

As for your quip about searching wallets and purses, I'll just say that life outside of suburban Washington, DC must be quite a lot different than it is inside the beltway. You won't get into an NHL hockey game here without unzipping your coat and showing that you're not hiding something in there; you won't get into the Smithsonian Institution without have your camera bag, backpack or purse searched; you won't get inside the Fairfax County Courthouse without going through a full security check, similar to what transpires at every airport in the country. You may think your suggestions were facetious. Unfortunately, they're not.

The Exterminator said...

A jury is supposed to use only the facts to render its verdict, but, as far as I know, there are no actual laws a juror must adhere to in his or her private arguments behind closed doors. A judge can be found, on appeal, to have given a jury an incorrect or misleading instruction, but, really -- once in the jury room it's anything goes. Don't you believe in "jury nullification," or do you think that the John Peter Zenger case was incorrectly decided?

As a lawyer, you must come up against "incorrectly" arrived at decisions frequently. In our system, that's tough shit, right? Unless it can be shown that there was physical coercion, or the judge gave bad instructions, the verdict stands. No one is supposed to be privy to what's said in the jury room. Here in Florida, jurors are free to take notes, both in the courtroom and during deliberations. Those notes must be left behind when you're done, allegedly to be destroyed; no one looks at them to see if they were kosher or even germane. If I were serving on a jury, and went to look up an appropriate Shakespeare quote during the lunch recess, there would be nothing to stop me from jotting that quote down on my pad and reading it when we're debating the merits of the case. Why should the bible be singled out?

And I've got news. People in the jury room offer all kinds of rationales for their arguments. The last time I served on a jury (six members), we had one woman who was convinced the defendants were guilty merely because they were Hispanic. Fortunately, the rest of us shut her down; but she was free to express that disgusting opinion.

So if you want to fool yourself into thinking that every jury goes into that private room and discusses only the facts, you're dreaming. In my experience as a juror, that's not how the system works. People bring all their prejudices and preconceptions with them. Yes, I and a few other people serving with me have argued that we should "stick to the facts," but I've never been on a jury where that ideal was not violated in some way.

In addition, in Lucero v. Texas, the deliberations went on for "several hours" after the bible verse was read. So it wasn't immediately effective, and may have mattered very little in the result. We don't know what else was discussed in that room. And, really, the foreman could have quoted from memory to use the same argument he did. Would you bar that, too?

Spanish Inquisitor said...


Well, at least you've abandoned the free speech argument. Jurors don't have a absolute right to free speech, if it infringes upon the defendants right to a free trial.

However, you're right that as a practical matter, jurors will, can, and do get away with saying almost anything in the secrecy of the jury box. It's only when something is discovered after the fact that what goes on becomes a matter of appellate review, and as you see from the Lucero case, it's exceedingly difficult to get the courts to nullify a jury's decision based on something that's not on any record, and is subject to some dispute.

As I noted at the end of my last comment, in this case, it looks like the Bible quote was both obvious, well known, and somehow offensive to someone that it showed up in an appeal. However, you're right about the effect of the bible reading, and this may be one of the reasons why the Supreme Court refused to review. I found this in an AP Article.

"The two jurors who switched their votes said the reading of the scripture and its content had no impact on their votes."

As a practical matter you can get away with this stuff. Whether you should is another matter.

The Exterminator said...

Actually, I never intended to make a free speech argument, although it was my unclear writing that made you respond to that issue.

I said: Since when can the law stifle a juror's right to speak his or her mind?

Bad writing. I should have said: Since when does the law control a juror's arguments [NOTE: not speech] during deliberations?

But I think we've finally come around to what I was trying to get at. The law can't do that. Nor, I believe, should it even try. That's the beauty of the jury system; the jurors are not professionals, nor, as far as I know, is there any compunction for them to adhere to parliamentary procedure or other debating "rules." Short of threats or physical violence, they can use any form of persuasion they want.

And, of course, in Lucero, there's the entirely speculative question of whether the bible verses even affected the holdouts' votes. Maybe those two just wanted to get out of court in time for dinner. (That was another argument I heard when I was last on jury duty. "Come on, it's 6:30 already. We don't want to have to come back tomorrow, do we?" FYI: Impressively, the other five of us immediately jumped on that idiot.

Glasmann said...

On the law suit against god: Yes, this may be frivilious, but what if:
What if the court papers were hand delivered to James Dobson or to Rick Warren in their churches? Imagine the consequence and impact if the judge were to declare that god was NOT resident in these churches and hence could not be served papers. Now, this would be sweet!!

PhillyChief said...

I like it, but unfortunately I think papers have to be served directly by an agent of the court. There is something about being tried in absentia though. Also, they could deputize these religious leaders I guess.

Anonymous said...


What a diabolically wonderful idea. I can picture it now: the congregation has just finished singing,

There's a sweet, sweet Spirit in this place,
And I know that it's the Spirit of the Lord...

The person bearing the summons swaggers in and asks to speak with God. Rick Warren says, "Uhh, well, He's not actually physically here, you know - but His Spirit is here."

The summons bearer says, "I can't deliver this to a spirit. Are you God's designated agent?"

Warren stammers, "Uhh, yeah, uhh, yes I am." (He has to say this; every week he tells the sheeple that he speaks for God, brings God's message to them, etc. He can't say otherwise in front of the sheeple now, can he?)

Summons bearer: "See that the Big Guy gets this. He's ordered to appear in court on Tuesday morning at 10:00 a.m."

Spanish Inquisitor said...


That's pretty good. But why does god even have to have service made on him? He's god, fer Crissake! Doesn't he already know what's in the summons? Can't the court take judicial notice of his omniscience? In fact, isn't the lawsuit part of his plan?

I say, start the trial, and he'll be there.

Thorum said...

OK, it's this simple. God should and deserves to be sued. End of argument. Also, it should be tried for murder. And when found guilty (after the foreman reads from the bible 'thou shalt not kill'), sentenced to death in the gas chamber. Yes, my world is so simple...............