Smite him with an instrument of iron

Khristian Oliver killed Joe Collins when Collins arrived home to discover Oliver in the midst of a burglary. After shooting Collins, Oliver whacked him on the head a few times with a rifle butt.

At Oliver's trial for capital murder, a medical examiner testified that although Collins was probably already dead from the shooting, the rifle butt attack was such that it alone could have caused Collins's demise.

A jury convicted Oliver and in separate deliberations, sentenced him to death. The latter procedure turned into a mini Bible study group, and Oliver filed a motion seeking a new trial because of that.

At a hearing on Oliver's motion, jurors said there were no fewer than four King James Bibles floating around the jury room and in particular several lines from the Book of Numbers were consulted in order to assist jurors in determining whether Oliver should face capital punishment based on a "What Would Yahweh Do" theory.

The central problem here concerned the claim that the verses consulted supposedly specifically described the facts directly germane to the circumstances of Oliver's criminal offense.

For example:

And if he smite him with an instrument of iron, so that he die, he is a murderer: the murderer shall surely be put to death.

And:

Or if he smite him with an hand weapon of wood, wherewith he may die, and he die, he is a murderer: the murderer shall surely be put to death.

The trouble with that is, according to the U.S. Supreme Court, the introduction of an "external influence" to jury deliberations is presumed to be a potential violation of a criminal defendant's Sixth Amendment right to a fair trial.

For another thing, "smiting" alone doesn't warrant the death penalty in Texas. It needs to be a smiting plus something else; in this instance the something else was during the course of a burglary.

The tricky part, of course, is that plenty of jurors are thinking Bible-thoughts during deliberations, but in this case the jurors specifically consulted hard copy Bibles with a view to assessing their application to the very facts and law presented at trial, and jurors are only to consider those facts and that law without the aid of the said external influences.

In other words, Bible law was not a factor during Oliver's trial and therefore may not be considered as part of the jury deliberations.

Having unsuccessfully exhausted his Texas State remedies, Oliver resorted to the federal system, and on Thursday the Fifth Circuit Court of Appeals agreed with a lower federal court that while what his jury did was impermissible according to federal law, Oliver failed to demonstrate the level of prejudice on the part of the jury required to overturn his penalty.

Apart from strongly deferring to the State courts' earlier determinations against Oliver, the Fifth Circuit noted that 1) it wasn't clear whether the jurors engaged in Bible study before or after reaching their decision 2) some of the twelve jurors said the Bible had nothing to do with their vote and 3) there was no evidence the Bibles were consulted with even the slightest whiff of permission from the trial court and indeed the court expressly instructed the jury to deliberate on nothing but the facts and law presented at trial.

That is, had the trial court even impliedly sanctioned the Bible consultations, it would have been a different story altogether.

What the Fifth Circuit did decide was that in this case, the Bible was an "external influence" as defined by the U.S. Supreme Court and in that sense the Fifth Circuit's decision is in accord with several other federal circuits in similar cases.

But since there is a two-part test, and Oliver was only able to satisfy the first part — that the jury's consultation of the Bible was impermissible under the circumstances — Oliver failed to prove the alleged prejudicial effects of that impermissibility were such that they rose to the level of a Sixth Amendment violation.

So, barring any intervention by the U.S. Supreme Court or the governor of Texas, Khristian Oliver will himself likely be smited, or smote, or however it is that they're doing it down there these days.

Oliver v. Quarterman (.pdf; 23 pgs.)