Off Center: Is Harry Exercising Proper Judgment?

My mission is to speak up for chareidi hashkafos, and so I am steadily prowling around the blogosphere on the lookout for those who denigrate them. This is why I peek in at Harry Maryles' blog. Harry seldom lets me down.

Harry took a break from the action a few weeks back due to somber personal circumstances, but, ever since he's back, he's been batting close to 1.000. Every single post except for the Pollard and LBJ ones was critical (alright, I'm OK with the Tcheilis one, too). Even the one about "What Unites Us?" bothered me. This is because I don't see Harry doing much for unity. My position is, if writers like Harry wouldn't be making a career out of criticizing the chareidim, we would be more united without national tragedies and רחמנא לצלן bloodshed.

I have noticed that in the blog world, a hot topic usually cools off within 24 hours and the topic that I want to discuss relates to Blogspeak that is already a full 2 weeks old. Still, I want to pull it out of the freezer and reheat it in the microwave. This relates to Harry's first back-to-business post since his leave of absence. I wanted to comment on it right then but I was bogged down with some lengthy posts of my own and then the Mumbai tragedy sidetracked all of us, and besides, this is not an easy post to write.

I refer to Harry's post entitled The Valis Verdict (Nov 25, 2008). In this post, Harry muses as to whether the "verdict" (I think he means "sentence") in the Yisrael Valis case can be considered "fair". And, based on what Harry reads in the papers, here are his conclusions:

I’m not convinced that there was any bias at all.

Let us remember that the leniency that is being called for on the part of the Charedi community is for a man who was convicted of killing his son. How lenient should the courts be for that? Six years in prison.

I think that the verdict was probably just.

Harry seems disturbed at what the charedim think of the Israeli judicial system:

This is how far the secular authorities are not trusted. They are compared to anti Semitic Czarist Russia at its worst!

Harry thinks that the chareidim are makimg a case out of nothing more than pathos and self-righteousness:

This young fellow, an Avreich, had until then enjoyed an impeccable reputation among his peers and his mentors. He had a bright future ahead of him. He was supposedly a gentle soul who would not hurt a fly. The verdict - it is therefore thought - was biased. It was an opportunity to bash Charedim by a biased Chiloni court.

It is as though they sincerely believe that there can never be a fair verdict. If a religious Jew is arrested for any reason he is always seen as a victim of secular bias.

And then Harry weighs in:

But that simply cannot always be the case.

I beg to differ. I believe that it always is the case (see what I quoted below from the Law in Israel blog). It is not a biased chiloni court as much as it's an immoral chiloni court. What I mean is that it is lacking in moral jurisprudence.

Harry is misrepresenting the situation. The problem is that even though we are not zocheh to a Halachically based criminal system, the Halacha does tell us what moral legal standards are. If the acting court system merely deviates from these morals in some nuance, such as accepting eyewitness testimony from one witness, or a woman, or a non-believer, there are grounds to say that we can't meet every standard. Undoubtedly, it is wishful thinking to expect any Westernized judicial system to adapt the rigid standards of our Halachic system. Nevertheless, there are yet certain legal rudiments which most westernized societies recognize and live up to, but seem to be overlooked by the democratic State of Israel.

Both Halacha and normal Western judicial systems provide legal safeguards to ensure a fair trial. This is what makes a system moral. It follows that a system that is lacking in these or similar safeguards is illegitimate and immoral in its structure without an issue of bias. In other words, it is a faulty system for everybody which allows for unjust manipulation.

There are at least three primary safeguards:

Safeguard 1) Trial by consensus

(Pirkei Avos 4:8) אל תהי דן יחידי, שאין דן יחידי אלא אחד.

Do you know any Western society that decides a homicide case by a single judge?
It doesn't happen in the US, Canada, or Britain. In those places, any felony trial is decided by a jury. Not just a jury, but "a jury of your peers" who are selected jointly by the prosecution and defense. Other countries require a tribunal for homicide or other serious offenses.

Of course, the Halacha is even stricter. By right, nothing is decided by a single judge. It's all right there in the first Mishna of Sanhedrin (1:1).

Monetary cases are judged by a panel of 3 [judges]; thievery and personal injury cases by 3; property damage and punitive damage cases by 3; … judicial flogging by 3, in the name of Rabbi Yishmael it is said with 23; …capital cases with 23; bestiality with 23…

The point is that it seems to be a world-wide standard that serious offenses are not adjudicated by a single person.

There can be numerous logical reasons for this. For one thing, human beings are inherently biased. Every individual hears things his way and sees things his way. Also, they are selective listeners. A point that makes a deep impression on one, may not be the point that makes a deep impression on another. They are also, well, human and can start thinking about what's for dinner in the middle of litigation. When a group of people hear the same thing and deliberate about it, each one points out to the other things he may have missed. Moreover, we never know when somebody may have a secret personal agenda.

Now, here is how it works in Israel (Source: http://www.jewishvirtuallibrary.org/jsource/Politics/judiciary.html) :

Generally, a panel is composed of a single District Court judge. A panel of three judges is established when the court hears an appeal of a Magistrates' Court's judgement, when the accused is charged with an offense punishable by imprisonment of ten or more years, or when the President or Deputy President of the District Court so directs. There are five District Courts in Israel - in Jerusalem, Tel Aviv, Haifa, Beersheva, and Nazareth.

This means that only if the sentence can be 10 years or longer does a person have a right to a tribunal. It may be that the 6 + 2 in our case is, in effect, all that a single judge can impose. This also means that as long as we are not putting away the defendant for 10 or more years, a single judge can do it.

No jury, no tribunal, no consensus. Just one judge.

And who appoints these "judges"? Not the people being judged. Not even in an indirect fashion by their parliamentary representatives. And not even in a retroactive indirect fashion such as that the parliamentary representatives must approve the appointments. Just an internal cronyist system.

Immoral.

Safeguard 2) Self-incrimination

In Halacha, there is no such thing a self-incrimination. It is forbidden by the Torah (Sanhedrin 9b, Bava Kama 64b). This means that a confession is not admissible in court under any circumstances. This basically precludes the possibility and advantages of forcing a confession out of anybody and saves us the trouble of having to determine whether a confession is genuine. We can't use it anyway.

In some western countries (not all) there are constitutional rights for the accused. In America, we have the Miranda rights and there is an obligation to inform each person of his rights before even detaining him. The rights are based on the 5th amendment and include that any accused person has the right to remain silent, which means that he does not have to answer his interrogators. He also has the right to legal counsel present at the interrogation. In America, a confession can be used against the accused but he must be told of this up front.

Here in Israel, there is no 5th amendment, nor the right to remain silent. I do not believe that there is a right to have a legal counsel present at the time of interrogation. And since there are no rights to inform the accused, he is not informed of any. Thus, he never knows what rights he may have.

Now, if this standard is a precept for moral jurisprudence in Halacha and, to a lesser degree, in America, then we can safely conclude that the State of israel is not in keeping with these standards of morality.


Safeguard 3) Presumption of innocence

I do not need to elaborate on this one as Rabbi Yaakov Menken so articulately critiqued it in his articles. I quote:

Judge Hannah Ben-Ami decided to convict him of manslaughter (not murder) because it was “reasonable to believe that there was awareness of the possible fatal outcome” of his actions — which stunned legal observers familiar with the meaning of “innocent until proven guilty.”

Do you want to read an amazing fact?

This I found in a blog called Law in Israel blog in an August 8 post entitled: Help! I've Been Arrested under the heading The conviction rate in Israel :

Finally, I have to tell you the bad news: 99.9% of all criminal cases brought before Israeli courts end in convictions (ie a “guilty” verdict). That figure is a real statistical calculation (from 2005) and is not a rough estimate or an exaggeration. It means that cases get decided in the police stations and at the district attorneys’ offices. If the police think you are guilty then so will the courts. If you have persuaded the police you are innocent, then might not prosecute. So, what happens during your interrogation is crucial.

Did you hear that, Harry? 99%!! No, this is not "Czarist Russia at its worst." It is worse than Czarist Russia. Mendel Beillis got a fairer trial than Yisrael Valis. (Beillis was acquitted.)

There are a number of other judicial safeguards to consider such as the public involvement toward judicial appointments that I snuck in in the consensus section. And, another one: we know that by Halachic law no evidence short of eye witness testimony is admissible. Today's advancements in forensic technology (fingerprints, DNA, etc.) can give us some facts that can support or discredit the theories of the prosecution, but no forensics can tell us precisely "what happened"*, and if the whole case hinges on it, then we have a hinge without a door.

That is 5 safeguards and not one of them exists here in the Western democratic State of Israel.

All told, we are dealing with a legal system that does not support regulated judicial appointments, trial by consensus, presumption of innocence, or the proscription of self-incrimination. When you combine this with the total lack of any eyewitness testimony whatsoever (forget about the Torah's standards for witnesses), all that remains is the bias of a single [female] judge. And we just learned that if the police think you're guilty, then so does the judge. Leave the chareidim out of this. There are no rudiments for a fair trial for anybody in such a system. It is an immoral system.

My impression of Harry has always of been a Jew who is very strong in the midos department but a bit misguided in the hashkafa department. That Harry is no friend of chareidi hashkafa is a known given. It is not surprising that he doesn't identify with the chareidi perception of the incident. What I find so appalling is Harry's insistence on siding with such a flawed and immoral judicial system.

רבן שמעון בן גמליאל אומר: על שלשה דברים העולם עומד: על הדין ועל האמת ועל השלום, שנאמר (זכריה ח, טז) "אמת ומשפט שלום שפטו בשעריכם". (Pirkei Avos 1:18)


If this judicial system is אמת ואמונה, G-d help us all.

השיבה שופטנו כבראשונה ויועצנו כבתחילה

*Forensics is better at telling us whodunit, when we know what happened, than it is at telling us what happened even if we know whodunit - as in this case.