‘Prosecuting Jesus’

By Megan Willome

Q&A with former Baylor Law professor and eternal Wacoan of the Year, Mark Osler

Once a Wacoan of the Year, always a Wacoan of the Year. Even if you move to Minnesota.

“Prosecuting Jesus” is about seeing Jesus through prosecuting him in a series of events called the Trial of Jesus. The trial took place over a three-year period (almost to the day), from April 2011 through April 2014, in 11 states, at churches, universities and one seminary. It began at the University of St. Thomas in Minneapolis, Minnesota, where Osler teaches, and ended in Manchaca, Texas, at Manchaca United Methodist Church.

The book is not only about Osler’s journey but also about the women and men who took this journey with him. “Prosecuting Jesus” will be released August 26 by Westminster Knox Press.

I first interviewed Osler in 2009 when the Wacoan named him Wacoan of the Year. At that time he had written a book, “Jesus on Death Row,” had someone play him the movie “American Violet,” and had won a Supreme Court case, all while serving as a professor at Baylor Law School.

The case that went to the U.S. Supreme Court in 2009 was Spears v. United States. The Supreme Court ruled the sentencing guidelines for convictions of crack cocaine and powder cocaine are not binding. Osler filed a petition for certiorari in the case, and the court ruled in favor without the case having to be argued. The following day, Osler’s friend Doug Berman, a law professor at Moritz College of Law at The Ohio State University, called him and said they should start working on clemency.

This is the conversation with Berman as recorded in “Prosecuting Jesus”:

“Slapped out of my reverie by the ringing phone, I answered it only to hear Berman’s shocking first sentence: ‘So, what are we going to do next?’ The answer was clemency, and particularly the president’s potential ability to use commutations to shorten the sentences of people serving time under the shaky 100-to-1 ratio. Presidents in recent times had failed to use the pardon power in that way, even when sentencing rules were changed.”

That’s the unifying thread from 2009 until now — disparities in sentencing, especially for people of color, and Osler’s work to rectify the problem. The idea began at Baylor but was not implemented until he took a position the following year at University of St. Thomas School of Law, where Osler holds the Robert & Marion Short Distinguished Chair.

In 2011 he began the Federal Commutation Clinic, the nation’s first at a law school. He and his students read letters from prisoners sent in thick brown rectangular letter-sized paper envelopes with multiple stamps, each of which costs an hour’s wages at a prison job. Most of these prisoners sought help to have their sentences commuted because they had been sentenced under mandatory guidelines now overturned but not retroactive.

That same year Osler took the Trial of Jesus, something he had previously only done at Seventh & James Baptist Church here in Waco, around the country. He and his co-attorneys focused on the sentencing phase, as if Jesus Christ were any defendant facing the death penalty in the particular state in which the trial was held.

I was at the trial in Austin, held on March 28, 2013. My husband and I attended the trial together the evening before Good Friday, when Christians commemorate the day Jesus was crucified. Opening statements were made, witnesses were called and examined, followed by closing arguments. Someone in the crowd yelled, “Execute him!” Then approximately 400 of us gathered in the pews of First Baptist Church broke into groups of approximately 12 — a jury, more or less — and discussed whether Jesus was a threat to society. We used Texas law as our standard and filled out a verdict form.

I’ve been in church my entire life. Participating in the trial was one of the most disturbing things I’ve been a part of, and I mean that in the best way.

Imagine participating in this disturbing exercise over and over again, as Osler did. He was a Christian prosecuting Jesus, advocating for the harshest penalty possible under the law. In order to build his argument, Osler used passages from the Gospels like this one: “For I have come to set a man ‘against his father, a daughter against her mother, and a daughter-in-law against her mother-in-law, and one’s enemies will be those of his household.’” (Matthew 10:35-36). Not your typical Sunday school lesson.

Spending three years in those verses, looking up something in his worn Bible first thing in the morning or in the middle of the day, sometimes Osler felt angry at God. He kept meeting people who had lost a loved one to murder. He kept getting letters from prisoners. As the trial wound down and the clemency work wound up, Osler found himself less angry. Yes, there was injustice in the world. Yes, there was something he could do about it.

Full disclosure, Osler and I have kept in touch since his anointing as Wacoan of the Year in 2009. I read the book twice before it was published — once early on and once right before it went to the publisher. I read it again in preparation for this interview, conducted by phone. The story still hasn’t lost the power to move me.

WACOAN: It’s hard to know how to approach this interview, even though I’ve read most of the book three times and have followed your journey on your blog, ‘Osler’s Razor.’ This is a dense book.

Osler: There’s a lot going on. I’m uncomfortable writing a memoir in a style like Dr. Seuss. Do you know that book — ‘My Book about Me,’ the one where you fill in the blanks? But when you examine your own life and unpack things, there is a density to it so often. At the moment, perhaps, we don’t realize the significance of it, but it becomes clearer when you go back and create a timeline, put relationships in order, with different parts of our lives.

WACOAN: You had a built-in outline for the book in that it follows the course of the 17 trials over a three-year period.

Osler: Two things that does. It propels toward something, in a way. The second thing is it moves it geographically. There are a lot of books that are about a place. This book is about places. One is Texas. The book starts and ends in Texas, and that’s not an accident.

If you’re going to talk about the death penalty, the most important place to do that is Texas. It’s where people think about it the most. It’s where it happens the most. It’s the place where more people have been involved in the process, either they’ve lost a loved one or been involved in a jury.

We haven’t had the death penalty in over 100 years in Minnesota. When I talk to my students, it’s an abstraction. It’s seen as part of a different culture. That physical movement from one chapter to the next was really necessary to kept it from being static.

WACOAN: And the book moves across the country, from north in Minnesota to south in Texas. From the East Coast to the West Coast.

Osler: Big cities, small towns. Big audiences and small ones. In terms of religious establishments, from Episcopal Divinity School, at the far left, to Regent University, on the far right.

WACOAN: For people who don’t know the backstory, the trial of Jesus started in 2001 at Seventh & James Baptist Church, which was your church while you lived in Waco. The trial lasted over the course of four weeks, right?

Osler: Yeah. In the summer Seventh & James has a program called Chautauqua that’s different than regular Sunday school. [Editor’s note: The name comes from the Chautauqua Institution, in New York state.] Regular Sunday school was led by Bob and Mary Darden, so pretty great. I thought we could do it as a chat for the entire church. In a place like Seventh & James, people will come to that. It isn’t just an hour on Sunday. It’s Wednesday night, it’s youth activities, it’s a lecture. There’s this all-in involvement, and that’s what we got that first time through.

The other thing the first time we did it is Bill Underwood was involved, who later became interim president at Baylor and is now the president of Mercer University. Great trial lawyer. He was really supportive about my doing this project, which in some ways was transgressive. I was an untenured faculty member at a Baptist school saying I want to prosecute Jesus.

Seventh & James was a great place to do it because it’s an extremely educated church. The average level of education is a master’s degree. It’s a group of people who are willing to have a vigorous discussion on difficult topics.

And one thing that amazed me was from the time we did that trial to when I left Waco in 2010, at least once a month, someone would talk to me about doing the trial again.

WACOAN: Then you went to the law school at the University of St. Thomas, and you say in the book they were supportive of you doing the trial both there and around the country.

Osler: They have promotion of social justice as part of their mission statement, and that’s understood in a Catholic context. So issues involving life will be central, and that includes the death penalty. So the idea was embraced by the institution.

WACOAN: You started taking the trial on the road approximately a year after you got to the University of St. Thomas?

Osler: Yeah. The trigger really was meeting Jeanne Bishop. I needed a defense attorney, and I found the right defense attorney [in Bishop]. She brought something to the defense that few people could, and that was the weight of loss. There’s a moral gravity that goes with that and authority.

[Editor’s note: Bishop is a public defender in Chicago, Illinois. Bishop’s sister Nancy Langert, her husband, Richard, and their unborn child were murdered in 1990. Bishop told her story at Baylor Chapel on January 27, 2016. The video of her talk is available at Baylor.edu.]

WACOAN: That’s what makes ‘Prosecuting Jesus’ so powerful. It’s not an academic discussion of the death penalty. It’s meeting people in the pages like Jeanne Bishop and Renny Cushing and Bud Welch who have lost someone and had to deal with the legal ramifications of murder.

Osler: [The trial] is something for them that is in communion with the people they lost. And that’s a remarkable thing to be near. The stakes are just different when you’re talking about the punishment of someone who took the life of your own family members.

There’s one story with [former U.S. Attorney General] Alberto Gonzales where he says, ‘I’ll bet that you wouldn’t feel that way if it were your mother or sister or daughter who was killed,’ and then Jeanne tells her story. That’s the only time I included that exchange in the book, but it happened other times as well, people not knowing Jeanne’s history.

WACOAN: The book is full of controversial topics besides the death penalty, but they’re not presented as topics or arguments. They’re presented as stories. What have you learned about the power of stories?

Osler: It’s something that took me a long time to learn. Part of learning it was doing the trial. In doing the trial, I had to see the Bible in a new way. I had to virtually memorize the Gospels. And something that reinforced in me was the centrality of narrative, that Jesus tells stories all the time. He lives his story. He always starts the story with where the listener is. He talks to the woman at the well and talks about water. It’s the opposite of what academic so often do. We start off trying to impress people using words they don’t know or referencing places they’ve never been. Jesus does exactly the opposite.

WACOAN: What does your Bible, which you describe as weathered and maroon, look like now that you’re not doing the trial? Obviously, you can’t remove the underlines you added while preparing. Do you still have your tabs?

Osler: It’s still got a lot of sight tabs in it. It’s got masking tape on the spine. It’s pretty beat up. It’s got ‘Osler’ written in big black letters across the top so defense attorneys don’t swipe it during a trial. Attorneys do that.

One thing that was surprising to people is they thought it was going to be a scripted performance, but I’m not an actor and Jeanne’s not an actor. We did it as a trial, so we didn’t know what the other person was going to do. It was different every time. You had to constantly react to what the other side was doing. That required that knowledge of the Gospels that I didn’t have until I started this project.

WACOAN: One of the ways the trial was different every time — and you describe this in detail in the book — is that at each trial you called different witnesses. Even if you have Simon Peter at more than one trial, it’s not the same person playing Peter.

Osler: That’s where geography mattered. Your Peter in California was different than your Peter in Oklahoma City or Virginia.

One of the things that played into that is that these characters are all complicated. Phil Steger, [who served as Peter in the trial at the University of St. Thomas School of Law], who I talk about a lot, played Peter as the enthusiastic sports team captain, who’s all in for the coach, and that’s true. There were other people who played Peter as contemplative or confused but thoughtful. That’s true too.

WACOAN: What I noticed in reading the book is that everyone who participated in the trial was changed, including you. Everyone’s story had an arc.

Osler: As things went along, you could see it happening. It’s kind of funny, when you’re 50 years old, you don’t expect that, and then it happens.

WACOAN: When I interviewed you seven years ago, we started off talking about Micah 6:8, about the intersection between justice and mercy. That’s where your career has focused, in its many different avenues. But in the interview you pointed to the third part of that verse, ‘walk humbly with your God.’ It seems like being Christ’s prosecutor was a humbling experience.

Osler: There is movement in the book. There’s a lot of walking, a lot of traveling from place to place. That was essential to the whole project.

It was humbling every time in ways I didn’t anticipate. Part of that humbling was understanding that people weren’t going to cry and say, ‘Oh, now I agree with you.’ I was going to have to find a way to be satisfied with people walking away troubled and letting them complete the story. It was also humbling to do it with people who knew things that I don’t.

WACOAN: Knew things through different life experiences?

Osler: Yeah, and sometimes in trial skills. Jeanne’s a better trial lawyer than I am.

You look at Joy Tull [Editor’s note: Tull often served as Osler’s co-counsel for the prosecution and was one of Osler’s students at Baylor Law School]. That was a deeply humbling experience to realize how much she’d been hurt by an institution I was a part of. It was humbling and sad not only to realize that we’d hurt her in that way, but that I’d never thought about it.

WACOAN: In the first chapter of ‘Prosecuting Jesus,’ you say you wanted ‘a Jesus so real that I could see him.’ That desire comes full circle in the last chapter.

Osler: That experience [of doing the trial] deepened the sense of wanting to see Jesus. In those [Gospel] stories, there’s such an earthy reality to what he’s doing.

That’s part of what was so wonderful to circling back around and ending with Kent McKeever. [Editor’s note: McKeever currently serves as director of legal affairs for Mission Waco. Every day during Lent of 2014 McKeever wore an orange jumpsuit, the traditional clothes of a prison inmate.]

WACOAN: I’ve read that part three times. The first time was when you wrote about it on the blog, which I know you use sometimes to work out your thoughts before you officially publish. It still gets me every time.

Osler: That’s why there are pictures in the book too. I used them initially as placeholders, but the most important one was the one at the end of Kent sitting at the Sonic with Joy and I. Because that’s where it goes — that’s where all that traveling ends up. There is a destination, and that’s it.

When I was writing the earlier chapters, I’d look at those pictures, like looking at a blue line on a map and seeing where this was all headed.

There are some things I didn’t play out in the book that are moving to me. Like I’m sitting there in a Sonic by a farm-to-market road with Jesus and an unbeliever, in Joy, someone alienated by faith, and we’re eating together. There we are, having tater tots. That’s as real as it gets, in terms of encountering faith.

WACOAN: The trial caused everyone to re-examine their faith or lack thereof. It made me ask difficult questions too. I don’t even know if I could do this interview if I hadn’t experienced the trial in Austin.

Osler: The one at First Baptist in Austin was one of the most fascinating ones too. The audience, there was something uniquely Baptist about it. If you remember the Q&A afterward, they didn’t just have questions — they had answers! They had their own point of view that came from their own reading of the Bible. They weren’t referring to some other authority for their position. That’s very Baptist. When we did [the trial] in a Catholic or an academic setting, there was a tendency for everyone to look to the priest or the dean, but that’s not going to be the case at a First Baptist Church.

WACOAN: In the book you say people left the trial ‘troubled.’ That’s how I left too.

Osler: Mission accomplished! That’s exactly what I hoped for. One thing about being a trial lawyer, being an advocate, is that when you’re young, you have this belief that you can argue someone into something. That someone would come up to you and say, ‘You changed my mind.’ That rarely, if ever, happens. What happens is you talk to someone, you tell them a story. It changes their perspective, it troubles them. They add what you had to say to their own experiences. Either they agree with you or they have they same belief as before but in a more principled way.

WACOAN: Or they maintain their belief but are better able to understand the other side.

Osler: To understand that the other side is principled as well.

WACOAN: With all the hot-button issues in our national discourse, it makes me wonder: What if our goal was not to change hearts and minds but to trouble them?

Osler: To be troubled as a goal, as opposed to getting the other side to submit to your will. It’s difficult to do that.

WACOAN: In the book you say, ‘Criminal law is about tragedy.’ I think it’s easy to see criminal law as tragedy in the case of a murder or a mass killing, like the Oklahoma City bombing, which touches one of the people you worked with. I think as Christians it’s hard to see the death of Jesus as a tragedy because it’s the means of salvation. Right? The trial forces us to see it as tragedy as well.

Osler: We jump to the cross, and we skip the road to the cross. I believe God intends us to take something from that part of the story. In the same way that the death and resurrection is meant to be meaningful to us, so is the path that took Jesus there.

It can’t be an accident that so much of his story is about being a criminal defendant. If you take the Gospels as not only telling us what’s right but also what is important to pay attention to, that message is pretty clear. How do we pay attention to the least of those among us, and that includes those in prison, which Jesus said when he was laying that point out in Matthew [25:36 and 43].

WACOAN: That scene at the Sonic with Kent McKeever as Jesus in an orange jumpsuit, that’s the turn to clemency, which is what you have been pursuing the last few years.

Osler: What’s interesting is that moment at the Sonic is in a way the end of project of doing the trial, but it’s also the start of us all going in different directions too. Jeanne wrote a book, [‘Change of Heart: Justice, Mercy, and Making Peace with My Sister’s Killer’] and has been all over the country speaking about it, including at Baylor Chapel.

For me, it’s what committed me to the clemency project was that same moment.

WACOAN: Did you know you mentioned an interest in clemency at the end of our Wacoan of the Year interview? You said, ‘So, what I decided was it would be worthwhile to gather a coalition to press President Obama to use the pardon and commutation power in a principled way. That is, to articulate a principle, and then live that out through his use of the Constitutional pardon power.’ That seed was already planted while you were still at Baylor.

Osler: Yeah. The 2009 me would be very happy to see what’s happening in 2016. It just blows me away that there’s that continuity.

Next week I’m going to the Department of Justice to meet with a deputy attorney general and others and talk again about how can we make this work better. Already, President Obama has granted almost 350 commutations, which is a historic number.

WACOAN: Am I correct that St. Thomas was the first law school to have a clemency clinic?

Osler: Yes. Others have come on board since. [It] was not intended to be limited in time. It will continue. The Clemency Resource Center, which Rachel Barkow and I established at [New York University], is a ‘pop-up’ law office that started up last summer and will finish its work this August.

Did you see the video of me at the White House?

WACOAN: No. [Editor’s note: Sadly, the video is no longer available.]

Osler: I got to give a good righteous rant. Even though I’m glad that President Obama has done the clemency work that he has, part of my work is to urge him to do more. The first person to speak that day was Neil Eggleston, White House counsel. One of the things he said was that these law professors who don’t think we’re doing enough, they need to get out and represent some of these guys — not knowing how much we were doing with that already.

WACOAN: On April 7, 2014, a week before you did the last trial, Abby Rapoport published an interview with you in ‘American Prospect.’ In that piece you had a unique definition of the word ‘evangelical.’ You said, ‘I want evangelical to mean someone who is deeply broken and seeks community.’

Osler: That’s how you evangelize. If you want to give people an opportunity to know Christ, you have to approach them as a flawed person, as incomplete, as still seeking yourself.

WACOAN: So often that word is associated with doctrine.

Osler: It shouldn’t mean that. It should mean how we approach the world. For me, part of it is that I don’t go around and tell people you should believe this and this and this. At the same time I’m not going to hide the role faith plays in my life and share that, even in pretty secular places. Believe me, if you go to an academic conference and talk about faith as part of your reasoning, that’s pretty transgressive. But it’s important to do, to be a legitimate academic who lets it be known that [faith is] a part of his or her approach to the world.

WACOAN: At the time of the final trial at Manchacha United Methodist Church in Manchaca, had you started writing the book?

Osler: No. I didn’t start writing until a couple months after that. I’d started to write another book about crack cocaine and then realized that this was probably more important book to write right away, while the memories were fresh. This wasn’t a normal experience.

WACOAN: One of my favorite sentences in the book was, ‘Baylor is a small boat with a large wake.’ How have you found that to be true since leaving Waco? I assume part of that statement simply means the number of Baylor folks you ran into around the country while doing the trial.

Osler: There’s a diaspora of Baylor people across the country.

The other thing is for its size, Baylor has an unusual amount of national attention that it receives in part because it’s unique as a big, Protestant, religiously identified school. Even within the context of what people are talking about now, with the sexual assault scandal, some people deeply resent the national attention that Baylor has gotten. People are fascinated because of Baylor’s religious identify. I’m not sure that’s a bad thing. There’s a national discussion about how a religiously identified place deals with a moral issue. If they can see hope come out of it, that’s a good thing for the faith.