Bo 5767 — Due Process

You don’t want to get on God’s bad side.

When God chooses to take action, God acts as jury, judge, and executioner.  Even though the Midrash tells us that when we pass away, the sins that you’ve committed act as your prosecutor, and the mitzvot that you did create angels that come to your defense, there was no such “due process” for the Egyptians.

This week, in parshat Bo, we read the story of the dramatic climax of the ten plagues that God visited upon the Egyptians – including the ultimate, the plague of the death of the first born.

Unlike God, however, people are fallible.  God may always get the right man, but when human police are involved, they sometimes get the wrong man.  In January of 2000, then Governor of Illinois George Ryan imposed a moratorium on the use of the death penalty.

Governor Ryan said “How do you prevent another Anthony Porter — another innocent man or woman from paying the ultimate penalty for a crime he or she did not commit?" Governor Ryan was referring to a former inmate whose execution was stayed by the Illinois Supreme Court after new evidence emerged clearing him of the capital offense.

Halacha, Jewish law, is very concerned with due process.  Recognizing that humans are fallible, the Jewish legal system, grounded in the Torah and elaborated upon in the Talmud, took great care to prevent travesties of justice.  Many of the lessons from the Jewish system have evolved to become the foundation for the secular legal system in use in many parts of the world, including America.

The Torah mandates capital punishment for a variety of crimes, including murder, various sexual transgressions such as adultery, leading the people to idol worship, and even violating the Sabbath.

Lest innocent people be put to death, the Torah itself mandated that there must be two witnesses to convict someone of a capital offense.  The Torah also built in a rather harsh penalty for perjurers – someone who gave false testimony regarding someone was to be punished with the punishment that the innocent person would have suffered.  If someone falsely accuses someone of a capital offense, he could be put to death himself.

The rabbis of the Talmud were not satisfied with the safeguards in the Torah.  The rabbis, in fact were very uncomfortable with capital punishment at all – so they added a variety of safeguards to make it virtually impossible to put an innocent person to death.  They didn’t have DNA testing 2000 years ago to use for evidence.  So instead they mandated a variety of procedural issues – “due process” if you will – to protect innocent people.

Before someone could be put to death for a crime, they had to be warned that the offense they were about to commit was a capital offense.  They then had to go ahead and commit the offense in the presence of two witnesses.  But the safeguards the rabbis installed went beyond this, to include the whole trial process.

The Talmud has a whole large tractate, Sanhedrin, which largely deals with court proceedings and procedures.  A capital offense was to be judged by a court of 23 judges.  It required a majority of two, not just a simple majority, to convict—12-11 wasn’t good enough, it had to be 13-10, for the Torah cautions us not to follow a majority to do evil—which the rabbis understood as meaning you have to have more than a majority to convict someone of a capital offense.

The Talmud also had a lot of rules of due process regarding how a trial was to be conducted.  In a capital case, the witnesses were to be “inspired with awe.”  They would be cautioned against testifying on the basis of conjecture, or hearsay, or evidence from the mouth of another, even from someone who is trustworthy.  He is cautioned that they will scrutinize his evidence by cross examination and inquiry.  He is given a lecture on morality and the tremendous value of a human life—he is cautioned that an error in a monetary case can be fixed, but there is no fixing an error in a capital case once the accused has been executed.  He is cautioned that if his testimony puts an innocent person to death, the blood guilt stays on his head until the end of time, and that anyone who kills a person is imputed guilt as if he destroyed an entire world, and anyone who saves an innocent person is credited as if he has saved a whole world.  He is told that man was created alone, from Adam, so that no one can say “my father is greater than yours.”  Only after all of these admonitions would the testimony begin.

The rules for capital cases were far stricter than for monetary cases.  Capital cases began with testimony favoring acquittal; a capital verdict could be reversed for acquittal but not for conviction.  Someone who has argued for conviction could argue for acquittal, but not vice versa.  The argumentation would begin with the most junior judges, so they shouldn’t be unduly influenced by hearing what their seniors had to say.  And if no one argued in favor of the defendant, a mistrial was declared – everyone was entitled to “representation” and a fair trial.

Many similar protections are built into the American legal system, some of them enshrined in the US Constitution.  The Constitution details a lot of legal rights we have, including:

• Freedom from unreasonable searches and seizures
• No one is to be held to answer for a capital crime unless indicted by a grand jury, except in war.
• No “double jeopardy,” you can’t be tried twice for the same offense, similar to the Talmud’s requirement that a court can overturn a conviction, but not an acquittal.
• No one can be compelled to testify against himself – Jewish law goes even a step further, and does not allow confessions at all, making the assumption that anyone who confesses might be unstable.
• The Constitution explicitly tells us that no one may be deprived of life, liberty, or property, without due process of law.
• Accused persons are assured the right to a speedy and public trial by an impartial jury
• The accused may confront the witnesses against him—just as the Talmud admonishes witnesses that they will be cross examined.
• The Constitution insures a compulsory process to allow someone to obtain witnesses in his favor—the Talmud also compels people who have knowledge that could lead to acquittal to come forward.
• There is a prohibition against excessive bail, excessive fines, and cruel and unusual punishment
• And, very importantly, someone accused of a crime has a right to the Assistance of Counsel for his defence—just as the Talmud declares a mistrial if no one comes to the defence of the accused.

All of which serves as an introduction as to why I was so incredibly offended by comments made last week by Assistant Secretary of Defense for Detainee Affairs Charles “Cully” Stimson.

In a radio interview last week (click here to read the transcript), Stimson said “As a result of a FOIA request through a major news organization, somebody asked, “Who are the lawyers around this country representing detainees down there (in Guantanamo)?” And you know what, it’s shocking. The major law firms in this country — Pillsbury Winthrop, Jenner
& Block, Wilmer Cutler Pickering, Covington & Burling here in D.C., Sutherland Asbill & Brennan, Paul Weiss Rifkin, Mayer Brown, Weil Gottshal, Pepper Hamilton, Venable, Alston & Bird, Perkins Coie, Hunton & Williams, Fulbright Jaworski, all the rest of them — are out there representing detainees, and I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. It’s going to be fun to watch that play out.”

Unbelievable!  A senior Pentagon official saying that law firms should be punished for providing representation (generally pro bono, for free) to people who are being detained.  A representative of the United States government saying that lawyers should only defend nice people – that people who we suspect might be terrorists, contrary to the US Constitution, are not entitled to representation, or at least not representation from GOOD lawyers.

If it weren’t such an amazingly stupid thing for him to have said in the first place, it would have been fun to watch it play out.  It has played out with universal condemnation from people of every political persuasion.

The Wall Street Journal generally has a fairly conservative political bent.  They are great cheerleaders for the current Administration.  Yet even the Wall Street Journal weighed in against Stimsom.  In an op-ed piece in the Journal, Charles Fried wrote:  “It is the pride of a nation built on the rule of law that it affords to every man a zealous advocate to defend his rights in court, and of a liberal profession in such a nation that not only is the representation of the dishonorable honorable (and any lawyer is free to represent any person he chooses), but that it is the duty of the profession to make sure that every man has that representation (see lengthy discussion at The Volokh Conspiracy)."

Our Constitution assures us of due process, and it assures us of a right to counsel.  A right to counsel for everyone means that a lawyer cannot have it held against him if he represents disreputable people – even disreputable people are entitled to counsel.  The American Bar Association’s Model Rules of Professional Conduct spell out “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”  In other words, you shouldn’t think because someone represents a drug dealer he approves of drug dealers.  Or if he represents a suspected terrorist it means he supports terrorism.

Mr. Stimson would have us believe that suspected terrorists do not deserve the protections of the Constitution.  That only people who have been pre-judged to be nice people deserve the protections of the Constitution.

Sorry, we don’t need laws to protect the rights of “nice” people. Why does the Torah have a commandment v’ahavta l’ra’acha k’mocha, love your neighbor as yourself?  You don’t need a commandment to love your neighbor who is lovable.  Of course you’ll love him.  You need a commandment to love your neighbor who is not so lovable, who may be a bit cranky or hard to get along with.

No one is throwing pleasant white grandmothers into detention camps and throwing away the key without due process.  We need the protections of the Constitution to protect all of us – even those that people like Charles Stimson might think are unworthy.  One is innocent until proven guilty – and that includes people accused of the most horrible of crimes, not just people accused of jaywalking.

Stimson apologized, but as the New York Times pointed out in an editorial (click here to read it), his apology wasn’t much of an apology.  Stimson said he regretted that his comments “left the impression” that he was attacking the integrity of those lawyers.  As if it was some kind of misunderstanding.  It was no misunderstanding.  Mr. Stimson did, in fact, attack the integrity of lawyers defending detainees at Guantanamo, and he named a long list of names and said it was “shocking” that they were defending detainees.

Fortunately, his strategy seems to have backfired.  Ruth Miller’s Diary quotes Stephen Oleskey, an attorney at WilmerHale in Boston who had traveled to Guantanamo Bay seven times since he took up the case in 2004.  "We haven’t had any clients call up and say ‘We really are deeply disturbed that you are advocating fair hearings.’"

Due process may occasionally protect people who actually are guilty.  But unlike God, we don’t know who’s guilty and who’s not until all the evidence has been examined, and a fair trial conducted.  The Constitution guarantees a right to due process.  To say due process only applies to some people and not others is contrary to the principles we hold dear as Americans and as Jews.

Shabbat Shalom

Reb Barry