Category Archives: Jury

Jesus as Criminal Defense Lawyer: The Woman Accused of Adultery

What can we learn about criminal law from the story of the Jesus and The Adulterous Woman in John Chapter 8 of the New Testament?  We can learn about what criminal defense lawyers do.  We can learn about the laws of evidence.  We can learn about a jury’s right and power to sentence.  We can learn about connecting persuasively with people.  First, the story from John Chapter 8:

But Jesus went to the Mount of Olives.  At dawn He went to the temple complex again, and all the people were coming to Him. He sat down and began to teach them.

Then the scribes and the Pharisees brought a woman caught in adultery, making her stand in the center. “Teacher,” they said to Him, “this woman was caught in the act of committing adultery. In the law Moses commanded us to stone such women. So what do You say?” They asked this to trap Him, in order that they might have evidence to accuse Him.

Jesus stooped down and started writing on the ground with His finger. When they persisted in questioning Him, He stood up and said to them, “The one without sin among you should be the first to throw a stone at her.”

Then He stooped down again and continued writing on the ground. When they heard this, they left one by one, starting with the older men. Only He was left, with the woman in the center. When Jesus stood up, He said to her, “Woman, where are they? Has no one condemned you?”

“No one, Lord,” she answered.

“Neither do I condemn you,” said Jesus. “Go, and from now on do not sin anymore.”

John 8:1-11 HCSB

Christ and the woman caught in adultery, Pieter Brueghel the Younger's oil on panel version of c. 1600

Christ and the woman caught in adultery, Pieter Brueghel the Younger’s oil on panel version c. 1600

What do criminal defense lawyers do?

In this story, Jesus shows us what criminal defense lawyers do.  We defend the human being accused of a crime, facing a punishment if convicted of a crime under the laws.

In this case the crime was adultery and the punishment for a person convicted under the laws could be death – death by a group of people throwing stones at you until eventually dead, a death by torture.  No doubt the law and the proscribed punishment were designed to deter the criminal behavior.

The accused person could testify on her own behalf, though throughout our legal history at times the accused has not been allowed to testify due to presumed lack of credibility.  But even with the right to testify on her own behalf, having an advocate speak for the accused gives her a better chance of being heard, fairly.

Here, Jesus speaks for her, and advocates for her life.  This is the most important thing a criminal defense lawyer does.  It is our sacred duty, our sacred honor.

The outcome sought by the advocate for the accused is the one desired by the accused.  Anything else would make us not an advocate, unethical or a failed advocate.

The means of achieving that outcome is our knowledge of the law (including the law of evidence and the law of jury power), and our ability to connect with people persuasively.

The laws of evidence. 

The laws of evidence in the early twenty-first century United States can be traced back to the time and place of Jesus, and earlier.  Jesus knew the laws well.

The laws of Moses required that before someone could be sentenced to death there must be two or more witnesses to the crime – a rule against hearsay, a right of confrontation, and a corroboration rule. Deuteronomy 19:15.

One accusing witness was not enough to trigger the death penalty.  Deuteronomy 17:6. Jesus and the crowd were told (“they said to him”) that the woman was reportedly “caught in the act.” Yet there is no witness or witnesses identified nor is there any witness testimony. This would make a death penalty illegal under the law.

Had there been two or more witnesses present to accuse and claim to be witness to the woman’s adultery, the law proscribed the death penalty for both the woman and the man. Deuteronomy 22:22 (“If a man is discovered having sexual relations with another man’s wife, both the man who had sex with the woman and the woman must die”).

Where is the man? How do we know the man is not any one of the men in the de facto jury?  The prosecutors do not have the man who they claim committed adultery with the woman.

After the accusers all have left, Jesus asks a legal question: “Woman, where are they? Has no one condemned you?”  With no accusers remaining, our attention is drawn to the requirement of eyewitnesses to the crime before guilt could be established and a sentence imposed.

Jesus’ statement: “Neither do I condemn you” can be interpreted to mean that Jesus was no eyewitness to any claimed behavior of the woman, especially in the context of what came before, concerning the lack of the legal requirement of eyewitnesses.

One interpretation of the story can be that Jesus gained her acquittal by skillful use of the laws accepted by the jury.

A jury’s right and power to sentence

We should note here that it is not at all clear that the woman was put on trial in the formal, proper manner proscribed by the laws of the time and place.  The contrary appears more likely (not unlike the Trial of Jesus, later).  And yet, we can still use the story to illustrate the jury’s traditional right and power to sentence.

Whether a proper, lawful trial or not – the accusers were urging a death by torture sentence be carried out by the crowd, right there on the spot.  Jesus, acting as the woman’s advocate, invoked not only the law and its requirements; he also made a direct appeal to the right, the discretion, and the power of the de facto jury to refuse to convict her.

Today we have many terms for this including jury lenity and jury nullification.  Jury lenity is the jury’s right to be more lenient than the law requires.  Jury nullification is the right or power of the jury to acquit a person (not-guilty verdict) even where it believes the accused was lawfully proven to have violated the letter of the law.

As often is the case, it is difficult to know whether the de facto jury walked away after the appeal of Jesus in deference to the laws of evidence or out of compassion.  But when Jesus said: “The one without sin among you should be the first to throw a stone at her,” was this not a plea for compassion?

His later statement to her: “Go, and from now on do not sin anymore,” implies that perhaps she did sin, but either lawful proof was lacking, or both he, the jury, and the accusers were blessed with compassion for her.  If so, this could have been an appeal to jury nullification or lenity, as well as an appeal to follow the laws of evidence and of a fair trial – either or both.

Connecting persuasively with people.

The ancient Greeks, Aristotle, spoke of ethos, pathos, and logos as the paths of persuasion.  Clearly the ethos of Jesus was also on trial.

“Ethos” is an appeal to ethics – a means of convincing someone of the character or credibility of the persuader – here Jesus.  After all, Jesus had returned there again to teach his gathered students, writing on the ground.

The scribes and the Pharisees then brought a woman before him and his students and accused her of adultery demanding her death, “to trap Him, in order that they might have evidence to accuse Him.”  It seems the poor woman may have been a pawn in a game designed to destroy the ethos, the credibility of Jesus to his students.

The description of his behavior shows Jesus’ confidence.  He is a teacher, interrupted as he is writing on the ground while instructing his students.  He is addressed with respect.  (Ethos goes both directions.)  He listens with respect.  He makes his short argument on her behalf, then resumes writing on the ground quietly, waiting for the people for do the right thing.  We see social mirroring.  We see the invocation of shared values and laws.  He is connecting.  Jesus makes good use of his ethos to persuade.

“Logos” is an appeal to logic – a way of persuading an audience by reason.  Jesus has pointed out the lack of an eyewitness, the lack of corroboration by two eyewitnesses, the unlawful hearsay accusation, the lack of an identified male accused adulterer (“caught in the act?”) , the lack of confrontation of witnesses — all contrary to law.  These are all appeals to logic, that the proposed conclusion is not proven under the law by the evidence supplied by the prosecutors.

“Pathos” is an appeal to emotion – a way of convincing an audience of an argument by eliciting an emotional response.  “The one without sin among you should be the first to throw a stone at her.”  Jesus challenges each listener to publicly declare that he or she is without sin.  He equates being the first to throw a stone at her with being the first to publicly declare being without sin – impossible for an honest person.  This challenge pierces right to the heart of any human being, requiring us to shift focus away from the accused woman, and to look inside to search within ourselves instead.  He correctly asks the jury to question whether the issue is really about them, not the lady accused.  She is not “the other:” they are like her – connected by something in common.  He inspires them to be greater than who they might have been, the low identity they had been invited to assume by the prosecutors.

Thomas C. Gallagher is a Minneapolis Criminal Lawyer, interested in both history and the law.

Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess

Water Bong

Water Bong

The Minnesota Supreme Court, in a 4-3 decision, has now ruled that Bong Water (water which had been used in a water pipe) was a “mixture” of “25 grams or more” supporting a criminal conviction for Controlled Substance crime in the first degree.  The crime is the most serious felony drug crime in Minnesota, with a maximum penalty of 30 years in prison for a first offense.  The case is Minnesota v  Peck, A08-579, Minnesota Supreme Court, October 22, 2009.

The majority opinion takes an absurd literal view, arguing in essence that any amount of a substance dissolved in water makes that water a “mixture” containing that substance.  Perhaps.  But, since Minnesota’s criminal prohibition laws are organized to make greater quantities of drug possession a more serious crime than smaller quantities, such a simple-minded view defeats the purpose of the quantity-based severity levels.

If a person possessed one-tenth of a gram of methamphetamine, they could be charged with a Controlled Substance Fifth Degree crime, with a five-year maximum.  But – dissolve the one-tenth of a gram in 26 grams of water, on purpose or by accident, and now under this new decision from the Minnesota Supreme Court, that can be prosecuted as Controlled Substance First Degree – with a 30-year prison term.  Just add water for five times the sentence!  In the case of marijuana, a non-criminal amount under 42.5 grams smoked through a bong could give the police and government lawyers the legal right to charge a felony drug crime with possible prison time – not for the marijuana, but for the bong water. This defeats the legislative purpose of treating larger quantities of drugs more harshly.  Worse – it makes no sense.  It is irrational.  It leads to an absurd result.

What is a bong?  It is a water pipe.  A water pipe, such as a bong, can be used to smoke tobacco, marijuana, methamphetamine (as in the Peck case), or anything that can be smoked.  Smokers view the water which has been used to filter and cool the smoke as something disgusting, not unlike a used cigarette filter, to be discarded – sooner or later.  The used water is not commonly used for any other purpose.  Apparently a naive or misguided police officer testified otherwise in the Peck case, and – amazingly -the four in the majority of the court appears to have given that testimony credit.

In general, courts have made efforts to prevent police and government lawyers from having the ability to manipulate the facts or evidence in such a way as to either create criminal liability for targeted people, or, to increase the penalty the target might suffer.  Here is an instance to the contrary.

If the government wants to charge a more serious drug crime – what to do?  Just add water!  (Water is heavy – heavier than drugs.  Drug crimes are based on weight.  Water is not currently defined by law as an illegal drug.)

Frequent news reports remind us about the drugs in the rivers and most of our municipal water supplies (not concentrated enough to hurt us, we are reassured).  Type “in water supply” into your favorite internet search engine and you can read thousands of reports of scientific studies documenting this.

As a result, if you have water sourced from a river, like we do in Minneapolis, then you could now be charged with a Minnesota Controlled Substance First Degree Crime (toilets tanks hold way more than 25 grams of water with illegal drugs dissolved).  This can be a particularly troubling variation of the trace-drug criminal case, where only a trace of suspected illegal drugs is found.  Trace cases can be problematic, in part because there may not be enough of the suspected material to be tested twice for its chemical identity. 

The widespread scientific reports of cocaine contamination (in trace amounts) on most United States currency, would be another example of “trace evidence of illegal drugs possession.”  Under the Peck case, we can have a situation of a trace amount of illegal substance “mixed” with water, which is heavy.  Or – we could have a relatively small amount (by weight) of illegal contraband mixed with a large amount of (heavy) water.

Even if you believe some drugs possession should be a crime – should one gram mixed in water be treated the same as one kilogram (1,000 grams) in powder form?

What can be done about this particular absurd injustice?

  1. Ask the legislature to repeal the criminal prohibition laws.
  2. Remember this case at election time.  Vote!  You can vote for or against Minnesota Supreme Court candidates, including incumbents.
  3.  Jury Nullification, or the rule of jury lenity.  Jurors have legal rights to acquit, despite the facts, despite the judges instructions on the law.  Just do it!
  4. Remove all water sourced from rivers from your home and office, including toilets, in the meantime.

At least the dissenting opinion, by Justice Paul H. Anderson, joined by Justice Alan C. Page, and Justice Helen M. Meyer, exhibits common sense.  Here is what Justice Paul Anderson wrote in dissent of the majority opinion:

“The majority’s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd…the result is a decision that has the potential to undermine public confidence in our criminal justice system.”

It’s a good read (link at the beginning of this article, above).  It is shocking that four in the majority could have disagreed with the dissenters.  Hopefully, this is the beginning of the end of the 100 year experiment in using criminal blame as a strategy to solve a public health problem.

It’s time to change the laws.  This absurdity makes it all too clear. Written by Thomas C Gallagher, Minneapolis Drug Lawyer

A Rose is a Rose is a … Sale? How “Cultivate” can mean “Sell” – Alice in Minnesota Law-land

Marijuana Growing: Minnesota Law

Marijuana Growing Indoors

Does the word “Cultivate” actually mean “Sell?”  No?

Well, the Minnesota legislature has decreed otherwise.

Minnesota lawmakers, influenced by the state’s prosecutors, have taken a page from Humpty Dumpty in Alice Through the Lookinglass:

’When I use a word,” Humpty Dumpty said in a rather scornful tone, ” it means just what I choose it to mean – neither more nor less.”

The question is,” said Alice, “whether you can make a words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be the master – that’s all.”

The legislature likes to think it has the power to define terms in any way they wish (with courts, juries, and voters the only limits).  Just like Humpty Dumpty in Alice, sometimes they go too far – giving words a statutory definition completely divorced from the common meaning of a word.  Yet – their power has limits.  The courts can strike down such nonsense as unconstitutional.  And the People on the Jury have the power of Jury Nullification – to acquit anyone accused of a crime based on a law that that the Jury finds to be nonsense.  A juror can veto the law.  This power is a core ingredient designed by the framers as a check and balance on the power of the elites in the legislative, executive and judicial branches of government.

If you grow a tomato in your backyard, then eat it there off the vine; have you by doing so also “Sold” it?  Replace “tomato” with “marijuana.”  Same conclusion?

For more on this topic take a look at our Minnesota marijuana grow defense page – by Thomas C Gallagher, Minneapolis Criminal Defense Lawyer.