The riveting financial news of the past month has been the trial of Conrad Black; accused of fraud, racketeering, money laundering and obstruction of justice during his tenure as CEO of Hollinger Inc. Unfortunately our society seems to ‘enjoy’ the minutiae of details as high powered people are humbled and humiliated. While I am unaware of any restrictions on reporting of Jewish judicial proceedings – apart from the general laws of lashon hara – one of the bedrocks of Jewish judicial proceedings is the dignity given to the convicted, not to mention the merely accused.
In an unbelievable Talmudic interpretation the Rabbis assert that the verse “you shall love your neighbor as yourself” is said to be referring to a convicted criminal even one deserving of death “Choose for him a good death” the rabbis demand. While western court systems do show much dignity to the convicted, our media outlets are generally less concerned with such ethical demands.
There are however numerous areas where western and Jewish court procedures diverge. The most relevant is admissibility of testimony. Prosecutors in North America will often offer plea bargain deals to lesser felons, who in exchange for testimony against others will receive a lesser sentence. Such testimony will then be used to convict an even greater felon. David Radler, Mr. Black’s long time business associate, who himself is accused of illegally diverting funds, has “agreed to cooperate” with the prosecution and will undoubtedly receive a lighter sentence.
Jewish law is clear that those who violate the many monetary mitzvot of the Torah are invalidated from being witnesses. Furthermore accepting testimony from those who have a personal stake in their own testimony is problematic. That is the essence of a plea bargain making it an unacceptable tool in the hands of prosecutors.
There are myriads of cases where informants with checkered pasts have been shown to lie under oath in a court of law. The western justice system has yet to learn the fundamental truth that those who have a history of illicit activities, absent evidence of a change in lifestyle, can not be trusted in a court of law, period. Taking such an approach would spare us the spectacle of accepting and relying on testimony of known liars, cheats and even murderers.
While the testimony of former colleagues is acceptable in Jewish law it is sad to see former close friends become bitter enemies when they are pitted on opposite sides of the court room. Perhaps this is the basis of the Torah forbidding relatives (first cousins and closer) from testifying. It seems to be more than mere fear that relatives might lie; even Moshe Rabbeinu and his brother Aaron are disqualified. Rather the Torah did not want families torn apart. Imagine what it would do to a family if one’s testimony was the basis of his brother being sentenced to death or even just to pay a fine. Sometimes even justice must take a back seat.
Interestingly enough, the Talmud records an opinion (not accepted in practice) that close friends are also disqualified. Such testimony is liable to strain a friendship beyond repair.
Another difference in Conrad Black’s trial and a Jewish court is the makeup of the jury. Western jurisprudence deems judgment of one’s peers to be the ideal (though in practice that is rarely the case – the jurors selected for the Black trial are not a cross section of high flying CEO’s). The Beit din system however has no separate jury – the judges, who must meet exacting standards of intellectual and moral achievement, serve as the jury. Rendering serious judicial decisions requires a special expertise that the average person does not have.
Comments rabbijay@torahinmotion.org