What does the most infamous criminal proceeding in history--the trial of Jesus of Nazareth--have to tell us about capital punishment in the United States?Jesus Christ was a prisoner on death row. If that statement surprises you, consider this fact: of all the roles that Jesus played--preacher, teacher, healer, mentor, friend--none features as prominently in the gospels as this one, a criminal indicted and convicted of a capital offense. Now consider another fact: the arrest, trial, and execution of Jesus bear remarkable similarities to the American criminal justice system, especially in capital cases. From the use of paid informants to the conflicting testimony of witnesses to the denial of clemency, the elements in the story of Jesus' trial mirror the most common components in capital cases today.Finally, consider a question: How might we see capital punishment in this country differently if we realized that the system used to condemn the Son of God to death so closely resembles the system we use in capital cases today? Should the experience of Jesus' trial, conviction, and execution give us pause as we take similar steps to place individuals on death row today? These are the questions posed by this surprising, challenging, and enlightening book

Jesus on Death Row

The Trial of Jesus and American Capital PunishmentBy Mark Osler

Abingdon Press

Copyright © 2009 The United Methodist Publishing House
All right reserved.
ISBN: 978-0-687-64756-9

Chapter One

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...