WEST VIRGINIA RECORD

CHARLESTON – The separation of church and state long has been a point of contention in the legal community.

Whether the idea focuses on a picture of Jesus Christ in a public school or a display of the Ten Commandments in a courthouse, the issue always is a hot-button topic.

But recently, a West Virginia Supreme Court of Appeals issued a decision regarding the use of religious language in the closing arguments of a trial.

In a March 7 memorandum decision, the state Supreme Court ruled 4-1 in affirming a ruling for the state against Julian N. Waddell, who had been convicted of malicious assault and child abuse. A Pocahontas County judge had denied his motion for a new trial and sentenced him to concurrent terms of two to 10 years and one to five years, respectively.

During the state’s initial closing arguments against Waddell, the assistant prosecuting attorney referenced Jesus Christ.

“He was the one who had an answer for about everything,” the assistant prosecutor said, according to court records. “And remember when the Pharisees were tested (sic) Christ, they were setting him up to try to figure out how to commit him and have him do what they needed done with him. And one of the tests were, you know, they talked about in the Old Testament of all the things you couldn’t eat. You know you couldn’t eat the clove of hoofed animals and stuff like that.

“And they had Christ pinned down where he had to make an answer and his answer was it’s not what man puts in his mouth that condemns him; it’s what comes out. And you can see where this case is going I’m sure. That mouths (sic) is the big issue that the defense can argue that he didn’t maliciously intend what he did with that woman.”

And in the rebuttal closing argument, the same assistant prosecutor began by stating, “Again, what would Jesus say? What comes out of a man’s mouth that damns …”

That is when defense counsel objected, and a discussion was held at the judge’s bench.

Other matters were discussed in the Supreme Court’s decision, but four justices ruled that Waddell had been given a fair trial. Those four were Chief Justice Robin Jean Davis, Justice Brent Benjamin, Justice Margaret Workman and Justice Allen Loughry.

“While perhaps unnecessary to reference Jesus Christ in its closing argument, based on our review of the transcript, we believe the state was merely making the point that the jury should pay attention to what petitioner said during the attack to determine if malice existed,” the majority decision states. “By no means was the reference to Jesus Christ … intended to cause the jury to forget the law and convict on emotion …

“We believe that the remarks in the present case referred to Jesus Christ as a historical figure and not an appeal to sympathy or emotion.”

Justice Menis Ketchum, however, dissented.

And in his brief dissent, he discussed Jesus himself.

“This case presents another example of a West Virginia prosecutor expounding upon the teachings of Jesus and the Old Testament in closing argument,” Ketchum wrote. “Our law is clear that prosecutors cannot inject religion into closing argument. Evidently, the majority held it was proper argument because Jesus is a historical figure.

“If this type of argument by prosecutors is proper then we should adopt a new syllabus holding that the defendant’s lawyer can argue in closing that:

“1. Jesus would give him/her another chance, or, at least, probation. See Matthew 7:12;

“2. Jesus loved and forgave sinners. See John 5:1-15; and

“3. Only those jurors without sin may cast a stone in judgment of the defendant. See John 8:7.

“I dissent.”