Saturday, March 13, 1999
Judge's use of Bible going to high court
BY DAN HORN
The Cincinnati Enquirer
The legal battle between a convicted rapist and his Bible-quoting judge is headed to the Ohio Supreme Court.
Hamilton County prosecutors asked the court Friday to consider whether the judge made a mistake when she quoted a Bible verse before sentencing James Arnett last year.
Mr. Arnett persuaded the Ohio 1st District Court of Appeals last month to throw out his 51-year prison sentence, arguing that Judge Melba Marsh was influenced by her religious beliefs.
But in an appeal to the Supreme Court, county prosecutors said the lower court's decision was flawed and should be reversed.
Prosecutors said the case has serious constitutional implications because it appears to ban the use of all religious references in court, even when those references do not unfairly influence the judge.
“It is clear from the record that the judge did not base her decision on her own sense of religiosity,” the appeal states. “Her reading of the scriptural material was just an expression of society's interest in protecting children.”
Mr. Arnett, 33, was convicted of repeatedly raping the 8-year-old daughter of his fiancee.
At his sentencing, Judge Marsh told the defendant she had struggled with his case because of the seriousness of the offense and because Mr.
Arnett himself had been molested as a child.
At one point, she said, she turned to the Bible for guidance and found a passage from Matthew 18:5-6 that she thought was relevant to the case:
“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.”
Mr. Arnett's attorney, Charles Bartlett Jr., has argued that the appeal court's decision to throw out the sentence was appropriate because it affirmed the separation of church and state.
But Prosecutor Mike Allen said it is not reasonable to deny judges or other government officials the right to mention God or hold a religious point of view.
“I do not believe that justice can operate in a moral vacuum,” Mr. Allen said. “Without morality there can be no law.”
The prosecution's appeal states that Judge Marsh quoted the Bible in order to express the seriousness of the crime, not because she put her religious beliefs ahead of Ohio law.
“There is no question that a religious judge may not and should not substitute religious conviction for judicial analysis,” the appeal states.
“But when morals are consistent with the substantive and overriding purposes of (the law), due process is not offended.”
Before the Supreme Court would hear arguments, the justices must agree it is a case of public interest and involves a substantial constitutional question.
A decision could take weeks or months.
Mr. Arnett is scheduled to return to Judge Marsh's courtroom for sentencing March 24.
Although prosecutors have argued that the law may allow her to give Mr. Arnett more years in prison, the judge has not said whether she will alter the original sentence.
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