Saturday, February 06, 1999

Sentence reversed because judge cited Bible

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Convicted rapist had received 51 years

BY DAN HORN
The Cincinnati Enquirer

Judge Melba Marsh sentences James Arnett to 51 years in 1998. (Glenn Hartong photo) | ZOOM |

        The 51-year prison sentence of a rapist was overturned Friday because the judge had used the Bible for guidance in deciding his fate.

        Raising the issue of separation of church and state, the Ohio 1st District Court of Appeals ruled that the judge's biblical reference to hanging “a millstone” around the neck of an offender violated the rights of James Arnett.

        Mr. Arnett, 33, was sentenced in January 1998 for repeatedly raping and molesting the 8-year-old daughter of his fiancee.

        The appellate court's ruling, which Hamilton County prosecutors vowed to fight, means Mr. Arnett can return to court to seek a lesser sentence.

        In its 2-1 decision, the court concluded that a new sentence is necessary because Common Pleas Judge Melba Marsh was clearly influenced by a passage she read from the Bible.

        “When a judge's personal religious views enter into a sentencing procedure, the constitutional rights of the offender may be violated,” wrote Judge Mark Painter, who authored the decision.

        “By factoring in religion, the court is acting outside of Ohio's sentencing guidelines, as well as violating the offender's due process rights.”

        Specifically, the court cited a passage Judge Marsh read from Matthew 18:5-6, which she said provided guidance as she struggled to make her decision:

        “And whosoever shall receive one such little child in my name, receiveth me. But whosoever shall offend one of these little ones which believe in me, it would be better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea.”

        Before reading the passage, Judge Marsh told Mr. Arnett his case was difficult because it required her to weigh several factors favoring both lenient and harsh penalties.

        She noted that Mr. Arnett had been molested as a child and had agreed to plead guilty to 10 counts of rape, sparing his victim the ordeal of a trial.

        But the judge said his past and his plea did not lessen the anguish he had inflicted on the child and his fiancee.

        “In looking at the final part of my struggle with you, I finally answered my question late at night when I turned to one additional source to help me,” Judge Marsh said, referring to the Bible.

        The appeals court concluded that the Bible played too great a role in the judge's decision.

        “It was as if the court used the Bible as a "tiebreaker' in its struggle of determining if Arnett's sentence should be harsh or lenient,” Judge Painter wrote.

        Mr. Arnett's attorney, Charles Bartlett Jr., said the court's ruling affirms the constitutional separation of church and state.

        “I'm sure Judge Marsh was making an honest effort to reach a very difficult decision,” Mr. Bartlett said. “Unfortunately, I feel she did violate his rights when religion became the determining factor.”

        Prosecutor Mike Allen, however, said the appellate court's ruling seems to suggest that the separation of church and state requires the ex clusion of all religious references.

        He said references to religion and God — such as the “In God We Trust” notations on U.S. currency — do not necessarily infringe on anyone's constitutional rights.

        In Mr. Arnett's case, he said, Judge Marsh was within her rights to quote from the Bible as a way to help others understand the seriousness of the crime.

        “There is absolutely nothing inappropriate about referring to scripture as Judge Marsh did,” Mr. Allen said. “In this case, it was wholly appropriate.”

        A similar argument was made by one of the three appellate judges who heard the case. In a dissenting opinion, Judge Lee Hildebrandt Jr. said the “mere citation of scriptural material” did not prevent the judge from following Ohio law.

        “The Bible's tenets and the trial judge's own sense of religiosity were not the basis of the judge's decision,” Judge Hildebrandt wrote. “The language quoted from the Bible merely reflects society's interests in protecting its most vulnerable citizens.”

        But Judge Painter, along with Judge Rupert Doan, said Mr. Arnett's appeal is supported by a federal case involving former television evangelist Jim Bakker. In that case, the sentence was thrown out because the judge cited his own religious beliefs in court.

        The appellate judges also state that their decision should not be misconstrued as hostile to religion.

        “We stress that this case is unusual in that a specific text in the Christian Bible was the determining factor in the judge's imposition of punishment,” Judge Painter wrote.

       

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