Response to Comments on Tookie

Some folks – in the Comments section, and in personal communications – really disagreed with my piece on Tookie. I disagree back.

The common denominator of the malaise of the largest group is that non-Jewish courts ought to have extra-legal rights to extend the death penalty beyond what is prescribed by Halacha. My old talmid Nachum correctly points out that Rav Moshe seems to assume as much in his responsum to Mario Cuomo.

I think this is largely beside the point.

I was fully aware that there are halachic arguments that allow non-Jewish governments to employ looser standards than the ones we find in the Gemara. Maybe (see below). Surely, though, a license to set looser standards in order to protect society cannot mean setting no standards, or hopelessly stupid ones? Would our readers condone using forced confessions, or polygraph tests administered by intellectually challenged technicians (DMV workers come to mind). Why not send accused murderers back to Salem, and dunk ‘em in the old well, and see who is guilty? How much better is it to rely on the hearsay testimony of the kind of human riffraff that we are trying to protect society from? If our Torah regards this kind of testimony as inherently unreliable, should we not heed its voice?

Again, the Chazon Ish ruled that a Noachide court could not accept the testimony of those who violated the most commonly observed parts of the Noachide code. Why should this particular bit of Torah teaching be discarded? Do we, or don’t we, believe that the Torah is correct, even if we wouldn’t have come up with the same conclusions? Why should we celebrate when we see our fellow citizens ignoring what we believe to be Hashem’s way of handling things?

If society needs to protect itself by making it easier to obtain a conviction, there are other and better ways. Several correspondents, including Rabbi Menken, pointed out that circumstantial evidence may be admissible in a non-Jewish court, at least as an extra-legal measure. Rabbi Michael Broyde phoned from Panama to propose a perfectly sensible guideline: circumstantial evidence that would be considered in halacha to be the equivalent of a siman muvhak (a logically dependable indicator). (Linking the bullet to Tookie’s gun would not by itself constitute a siman muvhak, without some other corroborating evidence – which was not there.) These proposals make sense. (For more on reasonableness as a requirement in the running of Noachide courts, see Chazon Ish, Choshen Mishpat, Likutim 2:2.) Halacha recognizes that the court can sometimes “know” that a perpetrator is factually guilty, while still unable to obtain a capital conviction because it sets such a high evidentiary bar. The Gemara itself demands special extra-legal punishment for a de facto murderer, even when he is not a de jure one. While we may “know” who a murderer is through the testimony of two witnesses who did not fulfill the obligation of warning the perpetrator in advance, we cannot do anything but guess when we pit convicted felons against each other on the witness stand. We can guess, but not know. We know far more through some types of circumstantial evidence. Reliance on umdena (legal presumption) is not uncommon in areas of halacha when human life is not at stake (and even some where it is – see Responsa Mishpat Kohen #143.) Ask yourself – if you had to write a responsum to Governor Scharzenegger regarding where the Torah would want to draw the evidentiary line in a California that found it necessary to convict more murderers, would you be so quick to admit the testimony of the sleaziest witnesses that money and promises of time off can buy?

As far as Rav Moshe’s responsum, I don’t know what to make of it. First of all, Rav Moshe makes no mention of the Torah’s expectations of non-Jewish courts, and instead provides an overview of practices in a Jewish beis din. (I’ve discussed this teshuvah with several members of Rav Moshe’s family, and no one claimed to have a handle on this. I have my own theory, which I share with my law school students.) Secondly, Rav Moshe is hardly a source of support to the tenor of the majority of conversation I’ve heard in the Orthodox community. Yes, he does leave room for the application of extra-legal capital punishment. But he also rejects the reasons often given in our circles for the necessity of starting up ‘Old Sparky:” “hatred” of the perpetrator (revenge?), and a concern that the world is falling apart. He sees the value of execution only in teaching society about the seriousness of crime. Rav Moshe does backtrack at the end of the responsum and allows for society to “set limits” in a wanton society in which murder is committed by the especially vicious (sounds like Tookie), or when people are killed not in crimes of passion but because life has become cheap (sounds like LA). I cannot say that I fully understand the distinction; perhaps some of the discussion here will generate some clarity. Thirdly, Rav Moshe did not seem interested in providing Governor Cuomo any sources as to how he arrived at his conclusion.

For those sources, we must go elsewhere. Rabbi J David Bleich’s Contemporary Halakhic Problems (vol. 2 pgs. 341-367) gathers it all together, as only Rabbi Bleich can. His conclusion is worthwhile remembering:

While a strong argument may be made in demonstrating that Noachide courts may exercise discretionary authority in admitting circumstantial evidence, either in enforcement of the provisions of the Noachide Code or by virtue of authority delegated to them by the “sovereign” in imposing “the king’s justice,” the existence of even such discretionary authority cannot be demonstrated beyond cavil.

At least we ought to be more muted about what we are not sure.

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7 Responses

  1. Harry Maryles says:

    Although I didn’t respond to you I did respond to Toby’ piece on this subject. In essence I use your arguments to dispose of the idea to use Torah support of Capital punishment as reason to execute that piece of garbage, Williams. The Torah as you correctly point out has a higher standard then was used here.

    But What R. Moshe was probably getting at was another argument that did justify William’s execution, number 7 of the Sheva Mitzvos Bnei Noach which states: Mankind is commanded to establish courts of justice and a just social order to enforce the first six laws and enact any other useful laws or customs.

    This is enough for me. Arkaos Shel Akum are not bound by the rules that our Torah mandates for Jews. As long as their system is just and fair, it seems to me that Williams was justly executed. The secular courts determined that Mr. William’s was guilty beyonf a reasonable doubt. The case was reviewed by the higher courts and they agreed. There is no doubt in my mind that he was a murderer. Your governor reviewed the evidence and came to the same conclusion in a state where the public was clamoring for mercy and where he needs every vote he can get to get re-elected. I would say the evidence; circumstantial though it may have been was pretty solid. Add to the absolute certainty that Mr. Williams was founder and leader of the “Crips” one of the most violent gangs in the US and that as such he has probably ordered the execution… or himself killed more than his fair share of human beings, and I can only say, “Baruch HaShem” this piece of human debris has finally met his maker and is off the streets of LA forever.

  2. Moshe says:

    The teshuva in Igros Moshe is unambiguous. The first three-quarters of the teshuva talk about the severity of capital punishment and the limitations imposed upon its implementation. The last quarter of the teshuva makes that point that all of these restrictions assume a functioning society where crime is abhorred. When murder loses its stigma, the government must take any means necessary to prevent the rampant disregard of human life. I believe that the lengthy discussion of the laws of capital punishment is a rhetorical device to get to the punchline of the teshuva: all of these formalities are the strict letter of the law, but when human life becomes valueless, the halacha relaxes these requirements. Why should the laws of evidence not be loosened to allow prosectution of a murderer?

  3. Toby Katz says:

    Not that I am accusing R’ Adlerstein of being a closet liberal chas vesholom, but I do note a phenomenon with liberal Orthodox Jews, namely: they will concede that in theory bnai Noach have a right to use the death penalty, but in every single actual case where a criminal is actually sentenced to death, they find reasons why in that particular case execution should not take place. You might call it killing the death penalty by the death of a thousand cuts.

  4. Daniel says:

    I was wondering if there was a source that required a non-Jewish court system to adhere to the evidentiary rules of a Jewish beis-din. If such a source exists, then R’ Adlerstein has a valid point. But in my limited knowledge of the Noahide laws, the only requirement is that a fair and reasonable court system be established. Jewish law does not allow for a change to come about through statute, yet it cannot be argued that such a change (especially brought about through a popular vote) is not fair and/or reasonable. If the people of the state of California establish a court system that allows for capital punishment, and the Williams’ crime was found to merit that punishment, why should the Torah’s evidentiary limitations apply?

  5. Yitzchok Adlerstein says:

    OK, let’s do this serially:

    Toby – What closet? I AM a liberal about lots of social issues. (Not gay marriage.) Don’t worry, though. I still vote Republican, at least some of the time. You were the first Jewish Republican I ever met, and the influence hasn’t waned entirely.

    Harry and Daniel – Yes, there are explicit expectations of non-Jewish courts. They are very different than those of Jewish courts. So, no, we don’t hold them to the same rules, but there are rules. Regarding monetary law, most poskim in fact hold that non-Jews are free to make up any equitable system they want, but this is not true regarding the other six Noachide laws. See Rambam Melachim 9:14 for starters. Rishonim and Acharonim have more to add.

    Moshe – Because every time you liberalize the law, you run more of a risk of taking innocent life. As noted here about a year ago, the author of the famous line “It is better that a thousand guilty parties go free than killing one innocent party” was none other than Rambam himself.

  6. dovbear says:

    Not that I am accusing R’ Adlerstein of being a closet liberal chas vesholom, but I do note a phenomenon with liberal Orthodox Jews, namely: they will concede that in theory bnai Noach have a right to use the death penalty, but in every single actual case where a criminal is actually sentenced to death, they find reasons why in that particular case execution should not take place. You might call it killing the death penalty by the death of a thousand cuts.

    I don’t understand Toby Katz’s attitude. We know the death penalty often kills the wrong person, and we know that life without parole is as every bit as much of a deterrant as the death penalty itself. Even if benai Noach are permitted to make use of it, does that mean they’re obligated to use it, and that we’re obligated to endorse their use of it? Not every right must be exercised you know. The fact that benai Noach are permitted to execute doesn’t mean they must execute.

    And given the very real flaws in the administration of the death penalty, I don’t understand why Toby and her ilk should insist on the use of this particular perogative. Better we should err on the side of cautian.

  7. Joe Socher says:

    Rabbi Adlerstein,

    It seems to me there was plenty of evidence pointing to his guilt and little or none away from it.

    *There was physical corroborating evidence in the ballistics (though it wasn’t as good as it could have been)
    *There were many witnesses who were not accomplices and not jailhouse snitches:
    1. The clerk who sold him the shotgun
    2. James Garret & Garret’s wife, with whom he lived (Garret was not an accomplice or jailhouse snitch, though not someone I’d like to have as a neighbor) both of whom testified. The story that they say Tookie told them is consistent with the accounts of the accomplices.
    3. Two other minor corroborating witnesses were not accomplices or jailhouse snitches. (Identifiying the vehicle, general description of perpetrators and their clothing)

    *Those witnesses who can be characterized as accomplices or jailhouse snitches were consistent in their descriptions of the events and haven’t found to have lied on any issue in their lengthy as far as I know. The jailhouse informant identified notes written in William’s planned escape, and this was backed up by an expert and by a guard who had seen William’s writing (if you look at the DA’s exhibits you’ll see his handwriting is very distinctive)

    *One accomplice did not testify at trial because he was not granted immunity, but his confession given to the police corroborates the testimony of the accomplice who did testify at trial.

    *On his arrest he exhibited knowledge only the perpertrator or an eyewitness would have had (i.e., how many shots were fired.

    *He had competent, experienced lawyers (of his own choice) defending him

    All of this then raises 2 questions:

    How much evidence should we, as Jews, demand the local court system to have? The U.S. system leaves the quantum of evidence essentially up to the jury with some vague guidelines (beyond a reasonable doubt, etc.)

    What procedural safeguards should we demand beyond what is already required? Not allow conviction on the basis of accomplice testimony, no matter how persuasive & consistent with other evidence? What else? Aside from all the basic protections given to criminal defendants we now require special verdicts on the penalty for death penalty cases, automaitc appeals to the state supreme court, etc. etc. Williams had 4 separate Habeas petitions denied in state court and a few in federal court.

    How much more procedure was due?

    I also don’t think it is in any way fair to compare the modern death penalty procedures with trials by ordeal or coerced confessions. We are still talking about a system under the Bill of Rights, not Saudi Arabia or Anglo-Saxon York.

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