Minority Religions and Esoteric Practices as Courtroom Evidence

Jason Pitzl-Waters —  May 14, 2012 — 18 Comments

On Friday, the Contra Costa Times reported that an appeal to overturn a 2010 fraud conviction was denied. California’s 2nd District Court of Appeal decided that prosecutors did not unfairly prejudice the case by bringing up a “voodoo” (though more likely Palo Mayombe, according to one expert) shrine that belonged to Ruben Hernandez, saying the evidence was “highly probative” of his “consciousness of guilt.”

The altar of Ruben Hernandez.

The altar of Ruben Hernandez.

In a 35-page ruling, the appellate court justices noted that Hernandez testified during the trial about the “benevolent purposes served by the dolls.” “He characterized the dolls as an element of his Catholic faith in which the pins stuck in the dolls were a form of ‘spiritual acupuncture’ to cleanse evil from the individuals the dolls represented. He also believed the dolls would assist in ensuring people were not put in jail wrongfully,” the justices wrote.

This case is just the most recent to raise the question of when, exactly, it is fair and relevant to a criminal case to bring up a defendant’s adherence to a minority religion, or involvement in an esoteric practice. While the justices in the Court of Appeals found that Ruben Hernandez’s altar was fair game, that wasn’t the opinion in the case of Christopher Vaughn, accused of murdering his wife and three children. In that instance, Judge Daniel Rozak ruled that Vaughn’s adherence to Druid beliefs could not be directly referenced, seemingly agreeing with Public Defender Jaya Varghese, who said that “The word ‘Druid’ alone is prejudicial,” and would “significantly impact” his right to a fair trial.

“A Will County judge this morning barred attorneys from referring to quadruple-murder suspect Christopher Vaughn’s Druid beliefs at trial, but said some statements Vaughn posted to a Druid listserv can be heard by jurors. [...] Prosecutors want to use postings Vaughn made to Druid listservs that refer to his desire to live in the Canadian wilderness. They argue his statements were another sign that Vaughn wanted to be rid of his family. [...] Judge Daniel Rozak said he would allow the statements “if they somehow deal with leaving the country or living off the land” and don’t reference Vaughn’s religious beliefs.”

There are two very different cases, but both speak to the fact that the mere mention of a Pagan, Afro-disaporic, or esoteric practices can have an outsize influence on a trial, affecting how juries and judges react. For every instance where bringing up a defendant’s religion might be acceptable, as in the case of Angela Sanford, there are many more, particularly in custody battles, where it is not. Where it’s clear that fear and ignorance are being welded as weapons to win a judgement.

Perhaps the best-known example of this would be the case of the West Memphis 3 (Damien Echols, Jason Baldwin and Jesse Misskelley Jr.), where Damien Echols’ interest in the occult and Wicca was used as proof of his murderous interests, and the three were subsequently swallowed up in the Satanic hysteria of the times.

The West Memphis Three

The West Memphis Three

“…you really have to put this case into historical perspective. In 1993, the Satanic Bandwagon Folks like Dr. Griffis were mainstream and largely supported by both the media and established religion. We now know better, just like we now know that there are such things as “coerced confessions.” In 1993, virtually everybody believed that the phenomena of Satanic Ritualistic Homicide was very real, and perhaps even more regrettably, that no one, not even a mentally handicapped person, or a child, would confess to a crime that they did not commit. Thankfully, due in large part to pioneers with real credentials like Dr. Gisli Gudjohnson, Dr. Richard Ofshe, and Dr. Richard Leo, we now understand the dynamics of false confessions. By the way, not many people remember that Dr. Ofshe won a Pulitzer Prize for his work studying religious “cults.” He had a dual expertise.”

Echols, Baldwin, and Misskelley would end up spending 18 years in prison before being freed in 2011 on an Alford plea, the capstone on an era that saw thousands of lives ruined in part thanks to the willingness of lawyers and prosecutors to wrongfully exploit people’s fears. Today, those fears are still being exploited, invoking “effigy dolls dunked upside down in this brown liquid” to judge the “consciousness of guilt.” Judging the worth of mothers, or even the depths of depravity, through what amounts to a theological popularity contest.

It very well may be that Hernandez, or Vaughn for that matter, are entirely guilty of the crimes they’ve been accused of, but that doesn’t remove the issue of their religion or beliefs being invoked. In Vaughn’s case, his lawyer was able to make sure the case stayed focused on the facts, while Hernandez’s trial allowed his “voodoo altar” to be used as evidence of his guilt, even though the spells may have born from defensive fear instead of from a guilty conscience. It is for this reason, perhaps more than any other, that outreach and interfaith efforts must be maintained.

It’s easy to affect an air of smug superior isolationism when there’s nothing on the line, but in the wider world we must constantly face that our faiths are a tiny minority in world dominated by faiths that have been historically hostile to us. We have to work towards changing perceptions, or else we risk sacrificing all those who end up situations where  misconceptions can mean jail and ruined lives. In the meantime, while we work for change, let’s hope that more lawyers advocate strongly to leave religions most people don’t understand off the witness stand.

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Jason Pitzl-Waters

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  • http://www.patheos.com/ Star Foster

    Tangent: Every time I see a picture of the WM3 free I break out into a huge grin. I am so happy these men are able to live their lives. Makes me incredibly happy!

  • Shakti_Mandrake

    I think many states need to be challenged when using religion and law. SC is using religion to determine lawful marriage.

  • Baruch Dreamstalker

    When a defendant cannot keep hir religion out of the trial, perhaps s/he could summon an expert witness to contextualize that religion for the jury. Of course the prosecution will then try to put the witness on trial, so it must be someone who can parry that successfully.

    • phatkhat

       Unfortunately, too many defendants have to depend on court-appointed attorneys who sleep through their trials. It costs money to have “expert witnesses”.

      • Baruch Dreamstalker

        See my reply to Hecate, below.

        • phatkhat

           I know. I posted mine before I saw yours. ;) But it is worth repeating, anyway.

  • http://www.facebook.com/shadowulf.mccullough Shadowulf McCullough

    I was told by the investigator for the defense in court case I was in that it was  “better to be seen as a racist then a pagan in the eyes of the jury” This was a response I recieved when I was asked to not be so openly pagan and I told him if I hide my faith the types of tattoos I have ( runes and my Thor”s hammer) people would jump to the conclusion that I was Aryan.

  • Kilmrnock

    Due to the type of plea the WM3 had to accept , can they sue the state/county for wrongfull imprisonment?All 3 should be due a fair amount for the damage done to them . This kind of insanity need to stop, that kind of travisty of justice connot be allowed to continue or happen again. From all i read the whole case was based on circumstantial evidence , coerced confessions and the then current SRA mess. Wasn’t the prosecutions SRA experet later debunked and digraced? There needs to be a SCOTUS ruling then precident to prevent religion from being used in legal matters/cases.But Jason i agree we in the Pagan community must continue to educate the public . No one else will . The way to public acceptance of Paganism is to dispell all the rumors , falsehoods and misconceptions about us . This task is on us and our organisations to complete .        Kilm

  • http://www.facebook.com/rapture.hoax2011 Roy Linford Adams

    There’s an almost entirely unknown case of our very own WM3 right here in Maine. A little girl named Giselle Cody was brutaly murdered in what was a christian-visioned satanic ritual, yet the man who (who at the time was a teen and often walked the girl home after school) was arrested, found guilty and is serving life in prison, was convicted on only one piece of evidence. He had a copy of Anton LaVey’s Satanic Bible in his school locker. Even though family members came forward and testified that the book was only in his possesion that day and belonged to another member who bought it out of curiosity and the family members were borrowing it, it was enough to convict him. I have been searching for info on this case on the net but so far all I can find is a mention of it in a document correspondance between a Mr. Helms and the President, where by Mr. Helms calls for a total denial of religious freedom to all who identify a satanist, Witches, and any other non-mainstream religion and uses the case, along with others, to convince the president to join his cause.

    http://www.textfiles.com/occult/OTO/20-20.txt

  • http://twitter.com/YearInWhite Year In White

    It’s similar to the earlier post about responsible journalism…

    Not too long ago, there was a drug group busted and it got a lot of publicity. One of the members was apparently a santero. New headlines mentioned feds taking down a crime ring led by a Santeria priest and spent almost as much time focused on Santeria aspect as it did on the crimes. Something tells me, if the guy was practiced Judaism instead, it never would’ve been brought up at all.

    If it doesn’t add any supporting evidence, it shouldn’t be brought up.  Unfortunately, people do seem to think it helps support their cases…

    Sucks.

  • Hecate_Demetersdatter

    I haven’t followed these cases carefully, but I can see a difference between evidence that shows that someone pushed pins into dolls (presuming that this is relevant to the crime charged) vs. evidence that merely shows that a person belongs to a minority religion such as Druidism.  If, for example, there were evidence that a Catholic solicited Masses for the victim, that could be relevant and admissible.  In either case, the burden of proof then shifts to the defendant to show, for example, that the pins were inserted or that the Masses were solicited for beneficial reasons.  The trier of fact can then determine the motivation.  Of course, there’s a danger that evidence of dolls with pins is introduced with a hope of prejudice, as well.  

    Expert witnesses cost money, often a lot.  So the simple opportunity to bring in an expert may not protect members of minority religions.

    • Baruch Dreamstalker

      I was thinking of bringing in a Pagan leader, who might do it pro bono. More like a character witness for the religion, rather than an expert.

      But you’re right, trial prep co$t$. Pagans need something like the Anti-Defamation League to address that.

      • Guest

        Sort of like the Lady Liberty League, for one, which always could use some more support

    • http://www.kirstenrostedt.com/ Kirsten Rostedt

       Hecate explained it well. Essentially, when determining the admissibility of  evidence, courts do a  balancing test as to the probative value versus its prejudicial effect. According to the Appellate decision, the trial court in the original fraud case restricted admission of the the dolls and baseball bat with names of investigators for the sole purpose of demonstrating guilty consciousness and knowledge of the co-defendant’s fugitive status (which was only a small part of the mountain of admitted evidence  showing fraud) The word voodoo was never used in the trial; the co-defendant depicted the items as part of his Catholic practice. Accordingly, the Court held that the probative value of this evidence far outweighed any prejudicial effect.

       The judge in the murder case, on the other hand, found that mention of the defendant’s religion was prejudicial and lacked probative value.

      As to custody cases, the increase of religion as an issue is a byproduct of an increase in inter-religious marriages. And it effects not just Pagans (although, since we are not as well understood, more education is required), but Jews, and even Christians.

      • Guest

        US Judges usually know about Judaism and Christianity, and said religions are not generally given as custody issues except for where the child is placed in danger, such as hemophiliacs with parents who don’t believe in transfusions and blood products and sick children who trust only in faith healing.
        People take their religions seriously – but the courts don’t care in such circumstances unless the child is in danger.

        I think it should not be left solely to the person fighting over custody to “educate” anybody about how Pagan doesn’t mean “wicked” to a Judge whose never encountered a Wiccan/etc. case.  Some groups quietly see this and send representation, others are fair weather friends.

        • http://www.kirstenrostedt.com/ Kirsten Rostedt

           The leading case in one of the states in which I practice involved Jewish and Christian parents wherein the Court prohibited a Christian dad from sharing his religion with his kids, who had been raised Jewish, holding that the Christian dad’s interference with his children’s Orthodox Jewish practices (including telling them they are going to hell) was harmful to their emotional well-being. But like I have mentioned before, the overall trend has been to allow interfaith families to continue exposing children to both parents’ religions.

          Ultimately, the burden is on the person seeking custody to show that the other parent’s religion is harmful (or in some states, a risk of harm) to the child at issue. But in order to successfully defend against such stereotype-driven charges,  ultimately the party must , at the very least, educate her lawyer as to what her religious practices are. And thanks to leaders like Phyllis Curott and Selena Fox, who have been on the forefront of educating the general public, there are more people — even in the legal system — who know a little about what we actually do and can differentiate reality from stereotype. 

          • Guest

              the Christian dad’s interference with his children’s Orthodox Jewish
            practices (including telling them they are going to hell) was harmful to
            their emotional well-being.

             This doesn’t really sound like the cause was religion. It sounds like he’d been verbally abusive to them based on their being Jewish and trying to terrify them into his beliefs.
            I don’t think having Christian books around and his doing Christian ritual
            and having Christian beliefs and just sharing Christianity with the children was likely the focus of the case. 

  • http://www.facebook.com/profile.php?id=1006464595 Cathryn Bauer

    I would like to add to what Jason has said that it is important for us to scrutinize the candidates for judge at election time, including incumbents.   They need to respond to hard questions from all angles about their attitude toward any party in a case who professes a minority religion.  In this day and age, I would include Islam in that questioning.  They also need to ask about any possible bias about mainstream religions. 

    We can do this.  As voters, we are entitled to this information.  If there is not an opportunity to pose these questions in a public forum, we should not hesitate to contact their representatives at campaign headquarters or their workplace staff — judges and attorneys are very easy to find via a simple Google search — and ask how we can obtain this information on their position.  

    Cathryn Meer Bauer