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.
