There are many areas of overlap between American law and Jewish
law. The traditional Jewish court system — founded on Biblical
statements as explained by the Oral Tradition — is only in place
today for civil matters, where Torah-observant Jews will sue each
other in hearings before three-rabbi panels. To enforce the
verdicts, litigants sign a legally binding document accepting the
rabbis as arbitrators.
However, the criminal justice system is suspended when
there is no standing Temple in Jerusalem. The Israeli criminal
courts follow the precedents established during the periods of
Turkish and British sovereignty, with a peek over the shoulder of
American courts. They will occasionally refer to Biblical and
Talmudic law to bolster an opinion but they do not defer to it as
authoritative.
The starkest contrast between the two systems is in what
constitutes reliable testimony. In the Jewish system, confessions
are only valid in monetary cases. If the man admits to owing money,
the court will enter a judgment against him for that sum. If he
recants later, or he claims to have paid up without witnesses
present, the lien remains in force.
He may also be believed relative to laws which abridge his
own rights. In Biblical law, a man who has an affair with a married
woman is not permitted to marry her later if she becomes a divorcee
or widow. This would apply even if the affair was not corroborated
independently and is known to the court only through his
confession.
However, no criminal penalty can be assigned by
confession. The criminal court may only convict through the
testimony of third parties. Additionally, relatives may not testify
either to benefit or detriment. Parents, siblings, children,
spouses, even first and second cousins are not eligible. In
American law, there generally is a spousal privilege, which can be
waived, but most other relatives may be compelled to testify — and
are believed.
Furthermore, in the Biblical system convicted criminals
lose their civil right to be a witness. Thus, a jailhouse snitch
would be disqualified on two grounds. First, he is an untrustworthy
criminal (unless he was just in detention and was later acquitted).
Second, he has not seen the crime and is merely reporting a
confession, which would have been inadmissible in any
case.
The conviction of Ingmar Guandique last week for the
murder of Chandra Levy was done without physical evidence or
witnesses. Indeed there was male DNA on the victim’s clothing, but
it did not match Guandique. He was convicted on the basis of having
mugged two other women without violence and on the word of a
cellmate. There is plenty of room for reasonable doubt. The
prosecutor and Levy’s family
proclaimed the verdict a “miracle,”
which is code for “Thank goodness these folks decided to teach a
lesson to this illegal immigrant by interpreting their duties
loosely.”
Convicting people for major crimes on circumstantial
evidence and secondhand confessions relayed by career criminals is
poor policy. American law does allow it, but competent judges and
juries are still expected to use their judgment in attributing
proper weight to each proof. Here this discretion was not managed
creditably. Why? Because the case had become a cause célèbre back
in 2001, with the news that then-Congressman Gary Condit was in an
adulterous relationship with Levy.
Celebrity and the courtroom are a bad match. The cases of
O.J. Simpson, Michael Jackson and Robert Blake, all resulting in
acquittals, were no less flawed than Guandique’s conviction.
Perhaps the most insane guilty verdict in a famous-person case is
race-car driver Michael Goodwin, who sits in a California jail for
conspiring to kill fellow driver and entrepreneur Mickey Thompson.
This, despite the fact that the killers were never caught and there
is no evidence of phone calls or payments by Goodwin to anyone,
only threats. (It may not even be possible for Governor
Schwarzenegger to pardon him due to a peculiar clause in California
law excluding two-time felons from consideration. Goodwin was once
before convicted of making false statements on a loan
application.)
All this concerns me as an observer of the American
justice system and obsessive consumer of true crime reportage since
childhood. More important at this moment are the implications for
the trials of terrorists housed in Guantanamo Bay. The Obama
Justice Department has taken a blustery moral stand in favor of
civilian trials for these detainees. The first test of this policy
came a fortnight ago when Ahmed Ghailani was acquitted of all but
one of 280 counts. It may fairly be deduced that the spotlight and
the politicization skewed the viewpoint of the civilian jury. I
look at these juries and I have reasonableness doubt.
