Posted On: February 23, 2010 by Ronald V. Miller, Jr.

A Time You Don't Want to Be a Judge

Little Ash Wednesday controversy in Iowa that is a very big deal to some: After a lunch while prosecuting an attempted murder case, the prosecutor went to Ash Wednesday mass and returned with ash on his forehead.

For mainstream Catholics, this is one of the few ways we have to publicly celebrate our faith. Many faiths of the world have ways you can, for lack of a better phrase, wear your religion on your sleeve at trial. Jewish lawyers have yarmulkes, female Muslim lawyers have headscarfs, some Sikh attorneys have turbans, etc. Would a judge every ask any of these people to remove their religious garb? Of course not. Yet, in this case, the judge asked the prosecutor to remove his ashes. The prosecutor removed the ashes and the trial continued.

Do I think this was unfair? Yes. But the judge was in a no-win situation. It would also be unfair the state of Iowa to piggyback off of the prosecutor's show of piety because religious faith does influence jurors. (If you have any doubt about this, read the section on religion in David Ball and Don Keenan's book Damages.) So, on balance, I think the judge did the right thing and picked the integrity of a serious criminal trial over the prosecutor's expression of faith. Still, I don't like it.

This is one of those situations where you would really hate to be a judge.