Davis’ latest appeal arose after the court threw out his first death sentence in 2007 because the trial judge mistakenly allowed only expert witnesses — and not Davis’ family and friends — to testify about whether they considered the defendant a continuing danger.
While preparing for the new penalty phase trial, prosecutors learned Davis listed his new religion as Satanism after arriving on death row.
Jurors were shown, over defense objections, Davis’ drawings depicting satanic symbols, books removed from his cell that included “The Satanic Bible” and a pentagram tattoo on his chest. Prosecutors also introduced a grievance form that showed Davis complaining about being denied a gong, candles, chalice, black robes, a vial of blood and other items he said were needed to practice his religion.
Prosecutor Lily Stroud said the evidence was meant to show that Davis had chosen to affiliate with an organization that condones and encourages human sacrifice and other illegal acts.
“I don’t believe that we put on the evidence, necessarily, to say: ‘Well, Satanism is evil, just an evil religion, he’s evil, and so you should just put him to death,” Stroud said. “The defense had been trying to give implication that while he was on death row he was nothing but a pacifist.”
But defense lawyer Morales said jurors, who again sentenced Davis to die, were improperly exposed to information designed to inflame their passions against Davis. The infraction was made worse, he said, because it violated the First Amendment’s protection of religious expression.
“The great thing about our country is that we are supposed to have the ability to choose our religion and not be persecuted for it,” Morales told the court’s nine judges.
“But who’s persecuting him?” Keasler asked. “All they’re doing is bringing evidence.”
“They are bringing evidence that is not viewed in a neutral way,” Morales responded.
Meyers joined in by noting that the First Amendment protects the free practice of religion, and “nobody is denying his right to practice.”
“How can you say you’re protected (in) practicing your religion,” Morales said,