Defense calls for mistrial after Bible left in jury room

Defense calls for mistrial after Bible left in jury room
By Earl Descant
Dispatch Starkville Bureau
edescant@cdispatch.com

STARKVILLE - Maybe it was solace she was looking for, or perhaps guidance.But whatever the reason a juror asked Oktibbeha County Circuit Court Bailiff James Austin to leave his Bible in the jury room during jury deliberations - and the request was granted - this one small act is sure to be a leading cause in Kristi Leigh Fulgham's appeal of a death penalty handed down Saturday.

Fulgham, 30, was convicted Thursday for the May 2003 capital murder of her husband Joey Fulgham. The jury began deliberations Friday on the sentencing portion of the trial. Jurors were faced with two options - life without the possibility of parole or death.

The jury of eight women and four men ultimately returned a sentence of “death,” after a little more than an hour of deliberation Friday evening and just under an hour of deliberation Saturday morning.

But before this, the defense, led by attorney Jim Lappan, immediately called for a mistrial when it was learned that Austin had left his Bible in one of the jury rooms at a juror's request Friday evening as the jury deliberated Fulgham's life or death sentence. The Bible was only in the room for about 15 minutes when Circuit Court Judge Lee Howard recessed the court until the next day. Howard learned of the incident late in the day Friday.

“Religion may not play a role in sentencing,” Lappan told the court. “Leaving a Bible in a jury room must cast a bona fide doubt on what instructions the jury is consulting other than the judge's instructions on the law.”

Lappan went on to cite more than a half-dozen cases regarding due process, and instances when legal process has been violated by outside materials such as a Bible, newspaper articles and other outside sources.

“The death penalty can only be a result from the deliberation of aggravating and mitigating evidence, and the Holy Bible cannot be cited,” added Lappan.“She (Kristi Fulgham) has no idea now what this jury is considering,” continued Lappan.

“We oppose this mistrial,” said assistant district attorney Frank Clark. “It's based on pure speculation as to what happened in that room.”

Howard, after consulting with the jury on their ability to only consider the evidence and legal instructions issued by the court, and after hearing no objections, overruled the defense's request for a mistrial and allowed the jury to consider its deliberations.

But the request for a Bible, and having the request granted, will almost without a doubt lay the groundwork for an appeals process which could stretch years.

“I know that I'm going to be revisiting these issues anyway,” said Howard.And seeing the error in his judgment, Austin, a minister, later regretted his actions.

“I'm hurting on the inside,” said Austin.