Lessons in Civility from the Trial of JesusJohn W. Welch, Kansas City, February 15, 2014

Today, I want to turn attention to lessons lawyers might learn about civility from one of

the most salient days in the history of the world when the rules of civility were shockingly

absent, as people ridiculed and mocked Jesus, taunted him to deliver himself, and divided his

garment by lot among themselves. It would be have small solace at that point, at the end of his

ordeal, for Jesus and his few remaining friends to know that all of this had been prophesied or at

least alluded to in the Psalms 21 and in Isaiah 53. Even at that, who would have imagined it

coming with such excruciating reproach, pain, and disregard? The study of law and ethics in

textbooks, and even in prophetic books, is always only a faint, impersonal shadow of the realities

of real-life pains and sufferings.

As we think about the Trial of Jesus, I hope you will bear with me. I have spent years

working on the trial of Jesus, and the subject does not get any clearer. You might say back to me,

as Festus said with a loud voice to Paul in Caesarea, “much learning doth make thee mad.” But

as Paul answered, No, I “speak forth the words of soberness” (Acts 26:24-25). But still, it is a bit

crazy to think that anyone can say much about the Trial of Jesus in only a few minutes. As I have

written, “Few legal subjects are more complex than the so-called trial of Jesus”—“so-called,” I

say, because it scarcely amounted to more than a kangaroo court and lynching. But in reality,

“too little is known about the substantive laws and normative procedures, whether Jewish or

Roman, in Jerusalem during the second quarter of the first century AD, and too little can be

determined about why various people acted as they did for anyone to speak with certainty about

the wide array of legal technicalities presented by this case.” This only increases the humility

with which we must approach this case. Without presuming to resolve all the particular legal

issues involved in the reported facts of this case, I wish to point out in broad strokes lessons we

as lawyers can learn from things in this case that probably all can agree we would not want to see

ever happening again, especially not on our watches.

At the outset it helps to be aware of the importance of trial of Jesus in legal history, in the

shaping of political and cultural values, and in the formation of ethical and religious values. An

enormous amount has been written on this subject. The bibliography on your handout is only a

small sample of the recent literature reflecting this broad influence.

Studies of the Trial of Jesus by scholars in previous generations have typically focused

rather impersonally on historical, textual, text critical, source critical, and comparative

approaches. But today, I see a new trend—represented by many of the recent books listed below

on the bibliography—as people are reading more with their ethical eyes open and seeing more

that builds what we would call civility.

Thus, Francois Bovon rightly acknowledges: “Recent scholarship has in fact rediscovered

the value of inscribing revelation in history, in its psychological, social, political, and economic

contexts.” (ix). And I would add, in its ethical and legal contexts.

Tom Shepherd’s concluding chapter ends with the sober statement about the irony of

power—a statement that one would scarcely find in the scholarly literature a decade ago—with

this concluding line, “The path to true power . . . is [ironically] through an experience of

weakness, self discovery, and service to others, a path the world cannot see nor withstand. It

joins the concepts of weakness and strength in a tension of Christian experience that represents

true discipleship.” And I would add, this same tension exists in the practice of law, which is as

much a vocation—a calling—as it is a career.

I would hope that you might sample many of the books and articles on this bibliography.

They range from Baylor law professor Mark Osler’s provocative indictment of the callousness of

our legal system in his book Jesus on Death Row, to Pope-emeritus Benedict’s penetrating

question about the concept of kingship and kingdom held out by Jesus, which asks readers to

ponder, “Does [the trial of Jesus] somehow affect us?” (190). And today I would focus that

question by asking, “and what does the Trial of Jesus tell us about law, justice, conflicts, power,

abuse, human nature, and civility?

Let us begin with a few comments about common perceptions of miscarriages of justice

in the trial. Many of you may be familiar with the old nineteenth-century “Chandler Approach”

to the trial of Jesus. Chandler saw grounds for a mistrial due to about a dozen alleged illegalities

of the trial under Jewish and Roman laws. But in each case, his analysis may be questioned:

the night-time proceeding: but at what time did the actual trial begin?

the use of testimony of an accomplice: but Judas was not a witness

Jewish law did not allow a single judge: but Annas wasn’t acting as a judge

there was a 2-day rule: but maybe not that early in Jewish law

did they begin before the morning sacrifice: but is that reversible error?

Pharisees did not allow trials the day before Passover, but Sadducees controlled the Sanhedrin.

A unanimous verdict was said to result in a mistrial under later Jewish law, but was there

actually a verdict here? Maybe not, and that’s why the chief priests try to get the Romans

involved. Etc.

Beyond the fact that many of Chandler’s alleged illegalities are now known to be

dubious, this approach does not recommend itself, for if all we are looking for are ways to point

fingers at others who might have violated their own rules (for whatever reason). This misses the

whole point about what we can learn ourselves and about ways in which we too may be

complicit in incivilities ourselves. As I learned as a Boy Scout, when you point one finger at

someone else, three fingers are pointing back at yourself. As we think about the trial events in

the early morning hours of Good Friday, let us ask: What can these events teach me about the

causes of injustice? And do I as a lawyer ever do any of the same sorts of things today?

Several years ago I was invited to speak to a British Association of Jewish Studies

meeting in Liverpool. Looking for a common thread running through all the accounts of the trial

of Jesus that might help me to understand all of this from a Jewish point of view, it occurred to

me that there actually is one factor that consistently runs throughout the four gospels regarding

the reactions of people to Jesus. It is what I have called the “Fear Factor” in the trial of Jesus, as I

have written in a chapter listed below on the bibliography. Who’s afraid here? Virtually

everyone. As the chart, from Charting the New Testament, shows.

The conclusion I draw from this state of affairs is this: The trial of Jesus was not a

rational affair. Thus, trying to make rational sense of it is doomed from the outset. And, if all

these people were really afraid, doesn’t that change how I view their decisions and conduct? And

don’t most passionately felt fears that I might encounter today also engender some degree of

similar irrationality? How many clients or defendants or prisoners or indicted people today are

afraid, anxious, frustrated at their lack of control, ready to make poor decisions, and even to lash

out in bewildering ways? Often, what is needed in all such cases is the civility of a steady

helping hand, some reassuring guidance, seeing alternatives, and finding someone to rely on. In

many such cases, the rule of law is the last bastion of reason, order, civility, and collective calm

in the face of natural human fears.

My fear factor is somewhat similar to what Jonathan Burnside, a British legal scholar, has

called the “Moral Panic” factor, in his recent application of semiotics to miscarriages of justice,

also listed on the bibliography. His analysis helps us make sense of the stories we construct, and

after all, our statements of fact, our closing arguments, our briefs, and our theories for each case

are, in effect, stories. And usually the winning lawyer usually the one who can tell the best story,

in all the various senses of what that means. Stories make use of words that convey selected

impressions; themes and patterns are used to connect with social knowledge that allows listeners

to make sense of the story; and appeals to ethical rules and legal norms lead decision makers to

issue judgments and take actions.1 All legal cases and trials need to be seen as stories. As

Burnside rightly points out, a lawyer’s role “is not simply to deconstruct and discredit an

opposing witness’ testimony but to construct an alternative version of the facts, that is to say, a

competing narrative.”2

But herein lies the risk of incivility. Because it is the goal of counsel at trial to create a

narrative that is both plausible and coherent for jurors, “the appearance of truth may be the result

of narrative stereotypes,” for we typically make sense of the world based on some kinds of

typical social knowledge (i.e. stereotypes) that are meaningful to us.”3 While stereotypes are

necessary and helpful in making rational sense of our chaotic world, they also can be the cause of

miscarriages of justice and incivility. Understanding this can help us in identifying these

problems and nip ill-effects in the bud before flaring into regrettable outcomes. Stereotyping was

certainly a serious problem in the trial of Jesus: Think of the ways in which Jesus was variously

characterized by those few who opposed him—and actually it was only a small number who

pushed his case through to execution. They labeled him as a robber, a militant messiah, a false

prophet, a blasphemer, a tax protester, a revolutionary, a king, a deceiver, a trickster, a magician,

and an enemy (no friend) of Caesar. But more than just counting these story-constructs, think

how each one of these stories contributed to a miscarriage of justice in his case, and then think,

do I ever construct stories (and of course we all do) and how do they lead to injustice and

incivility?

Often, because plaintiffs and prosecutors have the first opportunity to present a narrative

to the judge or jury and are naturally favored with the ability to provide a wide range of plausible

scenarios that appeal to legally relevant narrative stereotypes, the accusers hold a privileged

position over the defense that can potentially result in a miscarriage of justice. The defense, in

1 Jonathan Burnside and Michael Naughton, “Semiotics, Miscarriages of Justice and the Trials of Jesus,” 192 Id. at 19-20.3 Id.

contrast, must attempt to explain away the evidence that the prosecution has arrayed against the

defendant. Defensive explanations do not so readily fall into plausible stereotypes, because they

are neither structurally simple nor typical narratives (but rather are individual accounts or

scenarios) and will therefore often sound unfamiliar (or like efforts at special pleading). This can

easily be true, Burnside’s research shows, even if “the defendant’s version of events [as in Jesus’

case] actually explains more of the sense-data than the prosecution’s story.”4

Burnside uses this mode of analysis very profitably in his study of miscarriages of justice.

He examines six ways in which this semiotic perspective can help us understand crucial issues

regarding incivility and its causes, listed on your handout: namely,

(a) how innocent people can attract false allegations and criminal charges;

(b) how miscarriages of justice can be triggered by moral panics linked to high profile

events;

(c) how issues, charges and evidence that are individually weak in themselves combine to

“improve” prosecutions against accused persons who may be entirely innocent;

(d) how case construction can lead to the creation of false evidence;

(e) why some elements of a case can come to outweigh even countervailing evidence; and

(f) the problem of why miscarriages of justice seem to be legitimate.5

We won’t take time here to point to all of the famously lamentable cases that illustrate

each of these miscarriages of justice, which Burnside and others have discussed. But

interestingly, all six of these pernicious forces are at work in the trial of Jesus, which is quite

likely the classic case of the miscarriage of justice in all of western literature. In the trial of Jesus

one encounters a maliciously brought prosecution fueled by fears, false charges driven by

professional jealousy or self-interest, the trawling for evidence, prosecutors and judges who see

the injustice but go along with the conviction to protect personal interests, a readiness to process

the case quickly and out of the public eye and in the absence of proper debate for reasons of

political expediency. Burnside calls these “miscarriages of justice.” We can just as well call them

“manifestations of incivility.” Consider Burnside’s six questions:

(a) How is it that innocent people attract false allegations? Miscarriages of justice

frequently involve persons with “behavioral abnormalities” who are falsely accused because they

have become marginalized within their communities on account of their differences. “This can 4 Id. at 225 Id. at 22-23

make false allegations seem plausible and lead to charges for crimes that they did not commit.”6

In 1991, Rauland Grube, a man with mental disabilities, was accused of murdering a young

woman in 1983. There were no witnesses to the crime, just marginal circumstantial evidence.

Mr. Grube became a suspect after he reported to police that his shotgun was missing and that he

believed that it had been used in the murder. Though forensic evidence eliminated the possibility

that Grube’s shotgun was the murder weapon, the police pursued him based on bizarre behavior

toward the victim prior to her death and Grube’s intense fascination with the case. Grube was

convicted of murder and served 14 years in prison before his conviction was overturned after it

was learned that the police had destroyed evidence implicating an ex-police officer, and that

other evidence had been fabricated. Sadly, Mr. Grube died shortly after his release.7

I wouldn’t say that Jesus, like Rauland Grube, had mental disabilities, but he certainly

manifested a number of social abnormalities. Several people thought he was crazy, had an evil

spirit, or was mad. Surely such legal and psychological stereotypes lead to bad judgments and

lack civility.

(b) It is well known that miscarriages of justice can be triggered by moral panics linked to

high profile events. The classic case in American history of a miscarriage of justice initiated by a

moral panic is the Salem witch trials that occurred in 1692. Here a perceived threat to the social

order from a condition, person, or group results in the mobilization of the community to combat

the threat. This has occurred most recently in the United States following the Boston marathon

massacre and worries about threats posed by Islamic extremism. In the twentieth century, moral

panics were set off by fears about racial integration. In 1915, the popular silent film Birth of a

Nation played on racial stereotypes with a dramatic scene in which a black man assaulted a white

woman. Fears of such assaults were pervasive in the South during the Jim Crow era. In 1931, a

group of black teenaged boys, subsequently known as the Scottsboro boys, who had stowed

away on a train in Alabama, were accused of raping two white women. A lynch mob quickly

gathered and the authorities were forced to call in the National Guard to prevent mob action. The

boys were transferred and then tried by an all-white jury, resulting in a guilty verdict and death

sentence for eight of the defendants. After a series of appeals and retrials, one of the alleged

6 Id. at 237 See Grube v. Blades, 2006 WL 297203 (D. Idaho, Feb. 6, 2006) (Petition for Habeas Corpus granted); Judge Moeller, Keynote Address for the Madison Public Library’s “The Big Read: Harper Lee’s, To Kill a Mockingbird,” Oct. 6, 2009, 6:00 p.m., McKay Library, BYU-I, 4-6.

victims admitted fabricating the rape story. Nevertheless, the defendants were again found guilty,

though charges were eventually dropped for four of the remaining defendants.

Here again, we can think back again to the case of Jesus and learn from, and be

forewarned of, the irrational and uncivil effects of fear, anxiety, and prejudicial panic that rushed

his case through in over-reactive response to a perceived emergency threat.

(c) Issues, charges and points of evidence that are individually weak in themselves can

certainly be combined to “improve” a case inappropriately. Miscarriages of justice are common

in such cases in which prosecutors and police (or even judges and lawyers) have proceeded on

less than substantial evidence. As Burnside says, “The process begins when the police and

prosecution have an idea of how the crime was committed and who might have committed it.

This leads them to construct a narrative or story of the crime that is then fitted around the

suspect(s), instead of examining the facts and working outwards to see what facts attach to which

people.”8 In 2009, A California man (Daniel Larsen) was released from prison after serving 13

years on a “three strikes” conviction that was later overturned by a federal judge. At trial, the

only evidence against him was the weak testimony of two police officers, who claimed to have

seen the defendant disposing of a knife.9 Counsel for the defense felt he could not put his client

on the stand because of his two prior convictions for burglary.10 All this added up to a conviction,

despite the existence of other witnesses who claimed to be prepared to testify in that Larsen had

not thrown the knife under the car. Years later, this miscarriage of justice was reversed, the

defendant’s counsel was disbarred for other matters, and the reputation of the entire legal system

was sullied.

Something quite similar certainly happened in the trial of Jesus, where his accusers

fabricated one scenario after another and raised one weak legal charge after another—from

alleging that Jesus was a tax protestor, to being a blasphemer, a rabble rouser, an insurrectionist,

to claiming to be king—each was added to the pile hoping that something would stick and that

the aggregation of a bunch of individually losing claims would somehow, by a twist of legal

alchemy, turn into a winning argument. In cases like these, the whole is actually much less than

the sum of its parts.

8 Burnside, at 25.9 Larsen v. Adams, 718 F.Supp.2d 1201, 1207-08 (C.D.Cal. 2010).10 Id. at 1216.

(d) Case construction can wrongly lead to the fabrication of evidence. Miscarriages of

justice can occur when prosecutors and police or defense attorneys construct cases “that make

innocent people look guilty of committing criminal offenses even when no crime may have

occurred at all.”11 Due to patterns of thought that can be classified as “dirty thinking,” forensic

evidence in these cases is often misinterpreted and used by authorities to pursue prosecutions for

deaths that had actually resulted from accidental or even natural causes. Emotionally distraught

family members are particularly vulnerable to abuse in these situations, due to the tendency to

blame themselves for the death out of grief, (e.g. “if only I had been a better mother...”). A

classic example of this phenomenon is when the parents of a child who has died from crib death

are suspects in the child’s death and sometimes then prosecuted for murder.

In 1990, 17-year old Sabrina Butler was convicted of murder and sentenced to death

when her 9-month old son, who had a heart murmur, stopped breathing. Due to the presence of

bruises on the baby’s body that she claimed were left by her resuscitation attempts, Butler was

arrested for child abuse, interrogated by the police, and then prosecuted for murder. Two years

later, Sabrina’s conviction was overturned by the Mississippi Supreme Court in 1992.12 “The

court said that the prosecution had failed to prove that the incident was anything more than an

accident. At re-trial, she was acquitted on Dec. 17, 1995 after a very brief jury deliberation. It is

now believed that the baby may have died either of cystic kidney disease or from sudden infant

death syndrome (SIDS).”13

In another case, “Bill Wilson spent three years in prison, from 1915 to 1918, for the

murder of his wife, Jenny, and their daughter [even though] they were in fact alive and well in

Indiana. When, in 1912, a man and his son found bones buried beside the Warrior River in

Alabama, locals began to speculate that they were the remains of Wilson’s wife and baby, who

had disappeared four years earlier after a divorce. Despite the fact that the bones were clearly

more than five years old, the child’s skull had the teeth of an older child, and several witnesses

testified to seeing Jenny after the time the prosecution maintained she had been murdered,

Wilson was sentenced to life. In 1918, Wilson’s lawyer found Jenny and her child and persuaded

11 Burnside, at 26.12 Butler v. State, 608 So.2d 314 (Miss. 1992).13 http://www.deathpenaltyinfo.org/node/4900

them to return to the area to verify that they were not, in fact, dead. When she confirmed her

identity, Wilson was granted a pardon.”14

In such cases, police and prosecutors are led by their particularized understanding of the

world to presume that crimes have been committed when, in fact, they hadn’t. Innocent people

were subsequently tried and imprisoned based on a presumption of guilt that arose from deeper

modes of thinking.

And in the trial of Jesus, his accusers set up situations that generated the evidence they

wanted to create, and pushed through their presumption of guilt that arose from their pre-formed

perceptions and conclusions.

(e) The power of experts can contribute to the incorrect and unjust assessment of the

weight of evidence. Juries often show excessive deference to technocrats (expert witnesses).

Having been conditioned to think of expert testimony as more authoritative than lay testimony,

judges and jurors often prioritize this evidence in favor of countervailing defense evidence. This

trend is exacerbated by court rules that allow only experts “to give opinions in court, which can

often be based on no empirical evidence at all but, rather, on their theoretical hypothesis of what

they think may have happened.”15 In its most extreme form, “forensic science experts can be

conceptualized as the new ‘priesthood’ who are given the power to divine and proclaim the

‘truth’ in a court setting, with no real evidentiary basis.”16 An example of misplaced trust in

expert witnesses can be found in the case of Alejandro Dominguez. In 1990, Dominguez was

convicted of rape based on a false identification that had been obtained through police

misconduct and on the testimony of a forensic expert who claimed that the blood markers from

the semen matched those of the defendant, and that he could not be excluded from the sample.

The expert witness did not mention, however, “that two-thirds of men in America would have

matched that sample.”17 DNA evidence later completely exonerated Dominguez.

In the trial of Jesus, the Sanhedrin saw themselves (and indeed in many ways they were)

the experts on the law. But their expertize actually ended up leading them too quickly to a

decision regrettable in many ways.

14 http://brainz.org/10-parents-wrongfully-convicted-killing-their-children/15 Burnside, at 28.16 Burnside, at 29.17 http://www.innocenceproject.org/understand/Unreliable-Limited-Science.php

(f) What is it that makes a miscarriage of justice seem legitimate? “Part of the reason why

miscarriages of justice may seem fair is because of widely held beliefs in the correctness of the

criminal justice system.”18 This presumption in part arises out of the importance of procedural

justice to the criminal justice system, “which requires strict compliance with the prevailing

procedural rules of evidence.”19 These often elaborate procedures are designed to ensure that

only guilty persons are convicted, while the innocent are acquitted. The balance provided by the

adversarial process frequently breaks down, however, in the face of the inevitable uncertainties

that arise from a contested trial. Juries tend to side with the prosecution in these cases out of a

belief that “the system is legitimate and their corresponding need to side with the system when

there are doubts.”20

A psychological study about juror biases discovered the effect that pre-existing views

influence how jurors view the evidence. The study divided jurors into two groups, those with a

pro-prosecution bias and those with a pro-defense bias, based on their support of the questions:

“Any suspect who runs from the police probably committed the crime” and “Too many innocent

people are wrongfully imprisoned.”21 These jurors were then shown videotapes and transcripts of

actual trials or observed simulated trials and then ask to render an individual verdict in the case.

“The average rate of conviction was 81% for the prosecution-biased jurors and only 52% for

defense biased ones.”22

Burnside's list of six can easily be extended, and all of these problems can be detected in

the trial of Jesus. Without discussing each in detail, lawyers today can learn much about civility

from the following list of incivilities, each of which is readily apparent in the trial of Jesus.

Consider:

Stereotyping instead of seeing individual differences. They certainly stereotyped Jesus at

every turn. They said to him, “Speak we not well that thou art a Samaritan!” They

wondered out loud, “Can anything good come from Nazareth?”

Falsely accusing people who are unusual, abnormal, or from the margins. [Burnside 1]

Jesus was in few ways ordinary. He came from the margins of Jewish society, unmarried,

unemployed.

18 Burnside, at 29.19 Id.20 Id. at 30.21 Edie Greene and Kirk Heilbrun, Wrightsman's Psychology and the Legal System, 314-15.22 Id. at 315.

Following the crowd, especially in cases of moral panic or fear. [Burnside 2]

Thinking that an accumulation of weak evidence will add up to a strong case. [Burnside

3]

Trawling for evidence. [Burnside 4]

Allowing case construction to lead to the fabrication of evidence. [Burnside 4]

Giving undue credence to the experts. [Burnside 5]

Disregarding the innocence of an individual in order to make a public example. [Burnside

6]

Using a paid informant; accepting bribes or gifts; overusing money. Judas comes readily

to mind, as might our own allowing of money to play to great a role in our workings of

justice. [Ex 23 #9]

Being unclear about the charges or claims one is asserting. Certainly Jesus was never

read his Miranda rights, let alone given a formal indictment (not that the law in his day

required such), but it gives us pause to wonder if plaintiffs in our legal system shouldn’t

be required to be clearer in firing off a complaint or in stating their case.

Following false rumors. [Ex 23 #1]

Perpetrating lies or material omissions. [Ex 23 #7]

Not really attempting to negotiate or to find a better solution. Might not the Sanhedrin

have sought a better outcome?

Allowing perjury or using suborned witnesses. [Ex 23 #2] Matthew 26:60 says that false

witnesses were brought to testify against Jesus, and two were eventually willing to say

that Jesus had said something that he had not said. Do we worry enough today about the

serious problems of perjury and how often it occurs?

Disallowing or preventing communications with friends or counselors. While one

disciple went into the High Priest’s house with Jesus, the others all had to take cover out

of fear, leaving Jesus to face a large assembly and the power of Rome all alone.

Not caring about a suspect’s or opponent’s physical condition or comfort. While it was

typical in Rome to flog a witness, especially a slave or non-citizen, in order to assure that

he was telling the truth, there’s no justification for not caring about a suspect’s physical

condition, to say nothing about aggressively causing him pain.

Not listening to others or trying to understand things from the other’s point of view. Little

was done by Jesus’ accusers to try to understand what Jesus was saying, or why.

Taking advantage of an imbalance of power between the state and the individual. Those

with powers have duties not to misuse those powers.

Capitalizing on a home-court advantage. Remember that when the lawyers or scribes

came to Galilee to investigate Jesus’s miracle working on his own turf in Mark 3, they

backed off and did not press charges away from their own more favorable forum.

Abusing those who are away from home [Ex 23 #10] or unfamiliar with the process.

Being rude or using demeaning treatment. Jesus was slapped and mocked.

Constantly keeping the other party off balance and uncertain about what might happen

next.

Trying to trap people into saying things that are not in their best interest.

Manipulating the timing, either rushing the procedure or delaying the process.

Rejecting out of hand any offers of settlement or requests for clemency, even when

alternatives are reasonably offered. Think of Pilate’s offer to execute instead the robber

and public enemy Barabbas.

Passing the buck of responsibility onto someone else. The trial of Jesus was a classic case

of people arresting someone and soon looking for someone else (the Romans) to do the

dirty work, and just as soon for Pilate to pass Jesus on to someone else (Herod Antipas).

Wanting to assign blame rather than achieve a good result. If there was to be a riot or

tumult, or if the Romans were to take away the Chief Priest’s temple franchise, they all

wanted someone else to blame: better that he perish than that we lose our favored places!

How often do any of these tactics play any kind of a role on our own practice of law or workings

of justice, or injustice? Certainly, all of these ploys were at play in the trial of Jesus, making it a

potent exemplar of numerous elements of judicial or legal incivility.

And indeed, the judges and rulers at the time of Jesus, as are we, were under a kind of

code of professional responsibility to act with civility, with compassion and generosity, toward

litigants—whether plaintiffs or defendants, as accusers or the accuseds. Notice how many of the

rules in Exodus 23, which I have called Jehovah’s Code of Civil Justice and which I see as the

world’s first legal code of professional responsibility, were less than fully honored in the trial of

Jesus. These principles are equally of concern today.

1.Thou shalt not bring up a false rumor or report (Exodus 23:1)

Rumor: Jesus was accused of supposedly forbidding people to pay taxes.

2. Thou shalt not collude with a wicked person as a false witness (23:1)

False witnesses: Jesus’ accusers brought witnesses who were false and inconsistent.

3. Thou shalt not follow the crowd with intent to do evil (23:2)

In the Sanhedrin, everyone shouted with one accord. Not the way votes are civilly taken.

4. Thou shalt not speak against the majority of the people in order to pervert justice (23:2)

The Sanhedrin disregarded and went against the overwhelming popularity of Jesus.

5. Thou shalt not be partial toward favorites in a lawsuit (23:3)

6. Thou shalt be especially careful not deny justice to the poor in a lawsuit (23:6)

Jesus was marginalized as a poor peasant from Galilee. He was poor, even homeless,

with no place to lay his head, easy for judges to reject and disregard, being swayed in

favor of the interests of the very wealthy elite in Jerusalem.

7. Thou shalt stay away from lies (23:7)

8. Thou shalt not execute the innocent or righteous (23:7)

This alone should have given the Chief Priests reason to hold Jesus longer in custody.

9. Thou shalt not take a bribe or a gift (23:8)

Or even worse, to give a bribe or pay an informant. Judas comes readily to mind, as

might our own allowing money to play too great a role in the workings of justice.

10. Thou shalt not oppress a resident alien (23:9)

Jesus, though not a non-Israelite, was away from home and a Passover pilgrim.

No matter what one thinks about the forces that mobilized against Jesus or how one feels

about the ultimate reasons why these things happened, people today can see in the Trial of Jesus

paradigms of incivility, ways in which civil or civilized officers of the court would not and

should not want to behave.

Fortunately, the Trial of Jesus has not only served in legal history as an example of how

the justice system should not operate, but also as an influence in many positive ways in the path

of the common law. Consider our Fifth Amendment right against self-incrimination. It entered

British law in the case of John Lilbourne in the days of Oliver Cromwell, Lilbourne winning in

the Old Baily before a large body of the House of Lords as he argued, based on biblical

precedents, that no man should be required to testify against himself or be convicted on the basis

of such evidence. Our right against unlawful searches and seizures; our rights of due process,

notice, time to respond, the right of counsel, and right to appeal, all these legal rights and legal

rules of justice arose in the Common Law, in significant part, to guarantee that neither we nor

any of our fellow-citizens would be subjected to the kinds of inhumane and uncivil treatment that

Jesus received, remarkably of his own submissive will and volition.

With Easter time only a short time away, let us not worry about placing blame, pointing

fingers, or figuring out who was responsible for the death of Jesus. We too are sometimes the

chief priests, the Sadducees, the Pharisees, Pilate, Herod Antipas, the unconcerned soldiers, and

but for the grace of God there go you, and I, and all of us.

During the Easter season of regeneration, let us be more aware of our own powers and

rights, and realize that with every power comes a commensurate duty, either to use that power

for good or for bad. People with power of any kind have a duty—akin to a fiduciary duty—to

those who are exposed or are subject to that power. Those in power at the time of Jesus failed to

fulfill such duties, to use care and diligence, to avoid self-interests, to act affirmatively to carry

out justice, and to promote civility in the interests of those who are vulnerable and have less

power.

Finally at this time and always, maybe it all boils down, as it does in most things in life, to

what we call the Golden Rule. As Jesus taught, “Therefore, all things whatsoever that ye would

that men should do to you, do ye even so to them.” Or as the early Christians rephrased this

saying of Jesus, “Whatsoever you do not want to happen to you, likewise, do not do to another.”

In this is not only the whole of the law and the prophets, but also herein is the essence of civility,

civics, and all of civilization.

Selected Recent Bibliography

Bovon, François. The Last Days of Jesus. Louisville: Westminster John Knox Press, 2006.

Brandon, S.G.F. The Trial of Jesus of Nazareth. New York: Stein and Day, 1968.

Brown, Raymond E. The Death of the Messiah. 2 vols. New York: Doubleday, 1994.

Burnside, Jonathan. God, Justice, and Society: Aspects of Law and Legality in the Bible. Oxford: Oxford University Press, 2011.

Burnside, Jonathan, and Michael Naughton, “Semiotics, Miscarriages of Justice and the Trials of Jesus,” in L. Moscovitz and J. Rivlin, eds., “Wisdom and Understanding”: Studies in Jewish Law in Honour of Bernard S. Jackson. Liverpool: Jewish Law Assocation, 2012. Pp. 17-43.

Gibson, Shimon. The Final Days of Jesus: The Archaeological Evidence. New York: Harper Collins, 2009.

Heil, John Paul. The Death and Resurrection of Jesus: A Narrative-Critical Reading of Matthew 26-28. Minneapolis: Fortress, 1991.

Osler, Mark William. Jesus on Death Row: The Trial of Jesus and American Capital Punishment. Nashville: Abingdon, 2009.

Oyen, Geert Van, and Tom Shepherd, eds. The Trial and Death of Jesus: Essays on the Passion Narrative in Mark. Leuven: Peeters, 2006.

Ratzinger, Joseph (Pope Benedict XVI). Jesus of Nazareth. San Francisco: Ignatius Press, 2011.

Skinner, Matthew L. The Trial Narratives: Conflict, Power, and Identity in the New Testament. Louisville: Westminster John Knox Press, 2010.

Welch, John W. “Latter-day Saint Reflections on the Trial and Death of Jesus.” Clark Memorandum (Fall 2000): 2–13.

Welch, John W. “The Factor of Fear in the Trial of Jesus,” in P. Peterson, G. Hatch, and L.Card, eds., Jesus Christ, Son of God, Savior. Provo: Religious Studies Center, 2002. Pp. 284-312. http://rsc.byu.edu.

Welch, John W. “The Legal Cause of Action against Jesus in John 18:29–30,” in T. Wayment and K. Wilson, eds., Celebrating Easter. Provo: Religious Studies Center, 2007. Pp. 157-76. http://rsc.byu.edu.

Welch, John W. “Miracles, Maleficium, and Maiestas in the Trial of Jesus,” J. Charlesworth, ed., Jesus and Archaeology. Grand Rapids, Mich.: Eerdmans, 2006. Pp. 349-83.