There had been an altercation among three Florida drug merchants over control of a piece of turf. As tempers and guns flared, a bystander, little Walter Tukes, was killed. The three unbridled competitors were convicted of manslaughter and took their case to the Fifth District Court of Appeals in Daytona Beach.

In an opinion handed down Sept. 13, the three-judge panel swiftly dismissed an argument by two of the defendants that since the fatal bullet came from a rifle and they were using handguns, the third defendant -- a rifleman -- was the only one who should be sent away. Nonsense, said the judges: "All three parties were engaged in the same felonious activity (the shootout)." As for the rifleman's claim that he was acting in self defense, the testimony, said the judges, showed "he arrived on the scene with his rifle ready to do battle."

But there was one other element in the appeal -- separation of church and state. The judges, although they denied the appeal as a whole because "there was overwhelming evidence of guilt," were much troubled by the prayerful actions of the trial judge, Frederick Pfeiffer. During his 12 years on the bench, Judge Pfeiffer has opened every trial day with Christian prayers.

One of the defendants in the killing of little Walter Tukes argued that Pfeiffer, by his prayers, had denied him a fair trial. The appellate court thought he had a point. To begin with, said the judges, those prayers were "clearly sectarian in nature and might be construed as an expression of the judge's personal religious preferences."

In three of the four prayers delivered during the four-day trial, Jesus is addressed as "our Lord and our savior." Yet one or more of the defendants could have been an atheist, a Jew, an adherent of Islam, a Buddhist, a pantheist.

Or, as the three judges noted, "There is an inherent danger that litigants who hold different religious beliefs would feel that their cause was not being decided solely on the merits and that a jury might be similarly influenced."

The appellate bench also objected because the judge below seemed to have been indulging himself in sermons rather than in prayers. The panel emphasized that a trial judge cannot appear to the jury to be commenting on the character of the evidence or of the defendants. However, there was Judge Pfeiffer calling on God to "save us from violence" and to raise those in the court, including the jury, to "a sense of our responsibility in saving the world from ruin."

Almighty God was thanked, in another of the prayers, for delivering us "from the forces of evil," and presumably would do so again with the help of those in the courtroom who recognized their responsibility to save the world from ruin.

A judge, said the appellate jurists, is the dominant figure during a trial and so must be especially careful not to appear judgmental before all the evidence is in, let alone first thing in the morning. Accordingly, the Fifth District Court of Appeals has now cautioned all trial judges within its jurisdiction to screen their prayers to make sure they do not contain matters "that might best be left for other times and places." Otherwise, the panel warned, verdicts might be reversed in the future even though otherwise correct.

The appellate judges made clear that they had no objection to "the proper use of prayers, including recognition of a supreme being, in the opening of judicial or legislative sessions. . . . The sessions of this court are opened daily with such a prayer."

They might have added, as members of the Supreme Court have from time to time, that our very coins show atheists that they don't have the right stuff for America. And from the beginning of our republic, chaplains have fortified each session of Congress by asking God's blessing for the leaps into faith that follow. The only period during which God's vicars were excluded from Congress was during the administration of Thomas Jefferson, who believed that "religion is a matter which lies solely between man and his God." Not between Congress and God.

Judge Pfeiffer has told Louis Trager of the Orlando Sentinel that he intends to continue opening each trial day with one of his meaty prayers. On the other hand, the Rev. Chuck Baldwin, executive director of the Moral Majority of Florida, says: "I certainly don't advocate removing prayer from public life. But in that case, being in a trial, the judge does have to be careful."

I hope Judge Pfeiffer pays heed to Rev. Baldwin or, better yet, to historian Roger Morris' report of a time at the Constitutional Convention when tempers were so high that Ben Franklin pressed for the importation of a clergyman to soothe and inspire the disputants with a prayer before each session.

With the bearing he though befitted a new American, Alexander Hamilton looked at Franklin and said that members of the Constitutional Convention were entirely capable of handling public affairs "without the necessity of calling in foreign aid."