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Many people misunderstand this dictum. While yes when we look at the accused we are supposed to think that until the prosecutor proves his/her case beyond a reasonable and a judge or jury votes guilty, the accused is innocent. However, a judge or jury does not find the accused innocent; they find the accused “not guilty” because the prosecutor could not prove guilt “beyond a reasonable doubt”. That does not prove that there was a “false accusation”.
For the record, I work for in Law Enforcement performing financial investigations (not in NJ).
If one doesn’t think that halacha works the same way, what if someone steals something that is not worth a pruta? Is it a “false accusation” that the person stole something?
Think about it.
According to iacisrmma, once accused you’re never innocent. You’re damned if you do and you’re damned if you don’t. Because, as he says, even if you’re outright acquitted you’re “not innocent”.
The reality, however, is they even if found guilty it is no indication of actual guilt, given America’s corrupt court system and prosecution system.
Need I remind anyone how many former convicts were later exonerated? Often after serving decades in prison wrongly. You hear another such case almost every day. And how many more innocents are still languishing in America’s prisons convicted but not exonerated?
Halacha, on the other hand, puts the onerous on the accuser. Even guilty beyond reasonable doubt is insufficient to convict of a crime. Each Dayan who votes guilty must truly believe with his entire heart and soul that the evidence proves beyond *any* doubt that the accused is absolutely guilty, in order for the Dayan to be permitted to vote guilty.
And if not convicted, the accused is considered a member in good standing of Klal Yisroel as much as the Kohen Godol.
Joseph,
1. Once again you demonstrate lack of Torah knowledge. The secular authorities have the right and obligation to punish people according to their own standards of proof (see CM 2). Rav Moshe even wrote in a letter to then NY Gov. Hugh Carey in support of the death penalty (IM CM 2:68). The reason, as I understand it, is that the bet din’s job is to enable the sinner to atone whereas the secular court’s job is to maintain public order.
2. Even in Halacha there is the concept of a “kol shelo posek” or “kol ha’am meranninim”.
You’re going to put your trust in 12 random jurors from the street whose only common qualification is that they all were unable to somehow get out of unwillingly serving on a jury? How often does a CEO or CFO or CIO or Chairman or board member of a Fortune 1000 company or a S&P 500 company serve on a jury? No, the jury system is heavy laden with the homeless and unemployed and underemployed who don’t have nearly as much to lose financially being paid $40 a day for a week or two weeks of potentially losing their regular job income for that period. And other jurors (who did unsuccessfully try to get out of jury duty) who want to get away from the jury ASAP back to a job paying more than $40 a day, and if that means just voting guilty to get home quicker rather than deliberate longer, even though they might not be convinced of guilt, then so be it. No sweat off his back if an innocent man spends the next 5, 10 or 20 years languishing in prison.
And judges who if they woke up on the wrong side of the bed that morning or missed breakfast or are hungry for lunch or don’t like your lawyer or are good friends with the prosecutor can easily and subtly push for a conviction by all kinds of unjust rulings against the defendant.
Or a system that frequently and regularly uses convicts in plea bargains who are promised a much lower jail sentence if they testify against the defendant, and will comply and will make make up whatever it takes to make the prosecutor happy and get that lower jail sentence by falsely testifying or by turning in innocent people so that he has someone to testify against in exchange for an easier sentence.
In Beis Din a convict is pasul l’eidus for very good reason.
And prosecutors who must run for re-election by getting convictions and proving to dumb voters how tough on crime they are or are seeking appointment to higher office in the DOJ or future elected office by making a name for themselves and pandering to the cameras and needing bodies to convict.
One nice perk of being a prosector is giving the perp walk to those “innocent until proven guilty”, and calling up all the TV stations beforehand (“on the condition of anonymity”) to give them the addresses the FBI will raid to take those non-convicted out in handcuffs in front of their children and neighbors.
“Each Dayan who votes guilty must truly believe with his entire heart and soul that the evidence proves beyond *any* doubt that the accused is absolutely guilty, in order for the Dayan to be permitted to vote guilty.”
Is that true? Even if a Dayan thinks a person is guilty… like because of the evidence he is 75 or 85% sure he did, he still can’t vote guilt chayav unless he is 1005 sure without any doubt in his mind? Do you have a source that a judge can only vote guilty if he is 100% sure even? Someone, including a judge, can believe something to be true without being convinced to 100% certainty.
Joseph: Do you would prefer to pick a judge who was chosen by a political process that may be highly prejudiced against you. For frum Jews living in a place where the political leadership is ultra-secular (such as New York or Israel), a random jury is vastly preferable.
“You hear another such case almost every day”
Baloney. Pure hyperbole
Joseph, there are also many retired people who actually volunteer for jury duty. In any case, there must be some system. Dinim is one of the sheva mitzvot. It seems to me that you are simply engaging in identity politics (compare your virtual conviction of the Kushners).
Akuperma, as a matter of fact, Abarbanel says that all judges should be elected (Rav Hirsch says only the Supreme Court – they then choose the lower court judges).
Joseph….
Take off your NY reference glasses, it is only ONE of these 50 United States.I live and practice law in CT.
Except for local probate (Surrogate Court for you NYers) judges, we DON’T elect judges. Judges are nominated for appointment by the Judicial Committee of the State Bar Association and confirmed by the Legislature. It is a non-political process.Jurors are called for service in CT for 1 day. If not placed on a trial jury the are dismissed and not eligible to be called for three years. Employers MUST pay employees for 5 days of service, then the state pays if the employer does not/ Most employers of any size pay the full salary to jurors on duty.
There are very few exemptions from service in CT. the Governor, Lt. Governor and sitting judges and those over 70. Even Attorneys must report for Jury duty. I served on a criminal jury 2 years ago. It was in a district where I do not practice and before a judge I have never met.
Youngest Ms. CTL had jury duty two weeks ago. She was chosen for a jury (Civil case) but rec’d a call from the court that the parties had settled and did not have to report the second day.
Not everyone OOT looks to get out of Jury Duty, many consider it a civic responsibility of citizenship in this great country.
I haven’t been called for jury duty since 2004. At the time I tried to get out because I was a student, and didn’t want to miss classes. If I was called now, I would have no issue serving on a jury. Why would I? My employer pays for any time you miss due to jury duty, so there’s no financial concern. It’s a responsibility that comes with living in our great country, and I think I might even find it interesting!
Avi K.1, there’s a huge difference between “keeping the peace” and proving guilt.
Avi K.2 Dinim also means ensuring the public worships one Gd. But, yes, they have an obligation to keep the peace as wellsimcha613- That;s not how halacha works. To be found guilty, it must be 100%. However, keeping the peace also exists in Jewish Law. Bais Din has that power.
TheGoq- follow the news better. Yes, it happens frequently enough to warrant calling it “happens (almost) every day”
I’ve sat in jury pools in NYC a number of times. My “peers” were the lowest of the low. Consistently.
CTLAWYER-Can I assume you don’t practice criminal law?
Goq: looks like Joseph’s statement of “almost every day” is coming true.
Though the circumstances are different, today we have this
And yesterday we had this in the news
Brooklyn: Man Convicted In Murder Case Freed After 21 Years In Prison
The scary part is how flaky the law seems. Sheldon Silver (although they may still retry him) is B”H not going to prison because of a recent Supreme Court ruling that more narrowly defines corruption, and in his case the instructions to the jury were more “machmir”.
I also wanted to point out in another thread that is now closed and discussed rightful tzeddakah causes , that AFAIK the mitzva of פדיון שבויים does not depend on guilt or innocence.
iac: It cannot be said they you’re innocent of bank robbery. Sure, as far as I know, you were never charged with bank robbery. But that doesn’t mean you’re innocent.
You’re no more innocent than an accused bank robber who was found not guilty in court. Or for that matter, an accused bank robber who hasn’t yet had his day in court.
Agreed with this sentiment?
Mammele,
1. Actually the appeals court said that they do not know if Silver would have been convicted under the SCOTUS rules.2. It does not mean that he did not commit the murder. It just means that so much time has passed that it is not possible to re-try him.
3. Your contention about pidyon shevuim is incorrect. For example, Rabbi Tarfon refused to help Jews suspected of murder. According to Rashi he only suspected them of guilt. Tosafot and Maharshal disagree but also say that if he had known that they were guilty he would not have been allowed to save them. According to Rabbi Saul Berman (Boundaries of Loyalty: Testimony against Fellow Jews in Non-Jewish Courts p. 221 – available online as a Google book) Rav Soloveichik ruled that once someone has been properly charged, convicted and sentenced by an American court there is no mitzva of p”s harsh prison conditions notwithstanding.
Silver’s case is a good example . The appeals Court didn’t say he was Innocent, just that the jury instruction was invalid. It didn’t say he didn’t have a girl friend, that he wasnt getting kickbacks for steering cases to his law firm in exchange for kickbacks and that he didn’t steer State funds under his control to the referring doctor when the law firm refused to pay the Dr anymore. Just because SCOTUS lowered the bar for political ethics, Silver as an alleged frum Jew, had a higher responsibility
iac: Perp walks are *not* coordinated with the defendant beforehand. They’re a surprise to him. If they’d be coordinated he’d have been able to turn himself in to the DA’s office without an early morning surprise home raid scaring the living daylights out of his little children and spouse. The only ones not surprised are the TV cameramen who got advance notification of the address and time of the “surprise” arrest raid. It frequently occurs the prosecutor will tip off the press when he’s seeking the limelight as tough-on-crime as they walk him out in handcuffs in front of the press cameras — and his family and neighbors.
(“It cannot be said they…” should have read “It cannot be said that you’re innocent of bank robbery.”)
Avi, you’re not perturbed that the prosecutors corrupted the case against the defendant to get an unfair conviction that placed him in prison for over two decades before it was overturned?
That happens every day in American courtrooms nationwide. Sometimes it is later overturned. Often after wrongly spending years or decades behind bars. Even more times it is never overturned. The Brooklyn DA alone has been on a mission over the past three years overturning many wrongful convictions from the previous Brooklyn DA’s tenure. And that’s just one DA (out of thousands nationwide) with so many wrongful convictions.
And you’re down to quoting Conservative “rabbis” like Mr. Saul Berman to make your claimed halachic points?
Just because SCOTUS lowered the bar for political ethics, Silver as an alleged frum Jew, had a higher responsibility
Okay, but according to current law, he didn’t commit a crime. That’s not a mere technicality.
If one doesn’t think that halacha works the same way, what if someone steals something that is not worth a pruta? Is it a “false accusation” that the person stole something?
I don’t think that’s a good analogy.
You are correct. I practice Family Law: Divorce, Estates, Adoptions and Business law specializing in closely held and family businesses.
My firm does NO criminal law work with one type of exception. If the child/grandchild of a client or a client gets hauled into court for a traffic offense and the client calls us, we’ll show up for the arraignment so the person is not unrepresented while we recommend criminal practice attorneys for the client to engage.I’m in my mid 60s. The last time I appeared to represent a defendant in Criminal Court was about 30 years ago. I was in the courthouse and a judge grabbed me and assigned me a 19 year old accused of shoplifting as a pro bono case. She was a firs time offender, and I was able to negotiate accelerated rehabilitation. If she kept her nose clean for 12 months, the record would be expunged, she would stay out of the particular store permanently and do 100 hours community service. She went on to college, became a middle school math teacher, married and has kids of her own. A $50 fine and a criminal record would have done nothing for the merchant, but this result helped the offender.
CTLAWYER
You confirmed my suspicions. Your rosy view of our legal system is understandable but wrong.
I’m sure your criminal lawyer colleagues will confirm. This holds especially true in places like New York City, where the average citizen is low class.Iacisrmma:
“A three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan said it could not conclude that a rational jury would have convicted the Democrat if it had been properly instructed on what constitutes an “official act.” ”
In other words, it’s not a mere technicality; there’s a good chance that what he did was legal (although perhaps not ethical).
Isn’t Sheldon Silver the guy who wrote all those wacky poems?
Don’t bring Shel Silverstein into this.
iac, The press is generally notified by the prosecutor/law enforcement agency about the arrest after it is made. But it not too infrequently occurs that the prosecutor’s office will tip off the press prior to the arrest ofwhen and where the arrest will take place, so that the prosecutor can gain much more potent press coverage with pictures of the (still presumed innocent) defendant being taken away in handcuffs.
I already did.
Avi K: so according to you, as you quoted sources, if Jonathan Pollard was ch”v still imprisoned, the right thing to do would be to let him rot? As פדיון שבויים is not applicable, and there’s really no middle ground – you either do all you can to save him, using all resources available for his defense etc., including Maaser money – or stand by idly in the name of upholding American justice. After all, he plead guilty to a crime in a “righteous” US court.
@yitzhokm
No, I don’t have a ‘rosy’ view of our legal system, and I am NOT wrong. I have made it clear in my posts that NY is but One of the FIFTY United States. It is NOT typical of what goes on in most of the others.I think many of the 8 Million NYC residents would object to you calling them low class.
In the hinterlands (even 50 miles from Times Square) and especially in Red states, the populace has a different view of civic duty. The courts run much more smoothly.
The fact that I don’t practice criminal law doesn’t mean I don’t observe many criminal trials. The nature of a smaller state is that often the same judge in the same courtroom will hear both criminal and civil cases on the same day. If my case is not called first I may have to sit through a criminal proceeding until my turn comes.Yitz, you are correct. This is why the secular authorities are not bound by halachic requirements. Rambam even allows capital punishment according to circumstantial evidence (Guide 3:40).
As for criminal defendants being “low-class”, that is only true regarding street crime. Moreover, the probability is very high that they are, in fact, guilty. Even if some are not guilty of the specific crimes charged they very likely committed similar crimes but were not caught.Joseph,
1. Please cite your sources for your statistics. In particular, cite statistics for white-collar crime as there prosecutors must supply documentary evidence.
2. Regarding Rabbi Berman, you are over on hotza’at shem ra. Kol ha posel b’mumo posel.
3. If you do want to posel someone, why not mention that Sheldon Silver pushed through the NYS toeva marriage bill saying “This is a matter of equity and justice. New Yorkers should have the right to marry whom they chose. Partners unable to enter into a civil marriage, and their children, lack basic legal protections taken for granted by married couples.”CTLAWYER
You’re definitely naive. I’ve worked through the legal system. And I can tell you from the workings on the inside, it’s definitely not a fair system. I can only tell you about New York City but overzealous prosecutors exists everywhere. That’s their job.
So no, you’re not intentionally wrong, but you’re infatuated with a corrupted system. And writing it in caps doesn’t make you more right.
But I would advise you to speak to your colleagues, those who practice criminal law, and you might get a different opinion.Avi K. You’re missing the point. By the very fact that a civil court system is created to keep the peace vs assign who is innocent who’s guilty, proves that being found guilty by the court system doesn’t actually mean you’re guilty. It means that the government has a reason to do something with you or your property to keep the peace.
“Moreover, the probability is very high that they are, in fact, guilty. Even if some are not guilty of the specific crimes charged they very likely committed similar crimes but were not caught.”
And how do you know any of this? Because the prosecutor is telling you ? You have my blessings never to know how this actually works.
Avi K.
I don’t know much about Berman but I do know that he’s part of Avi Weiss’ crew. That makes him a pariah in my book. I hope in yours as well.Yitz,
1. How do you define “overzealous”?
2. Unfortunately I had experiences with this type in my youth.
3. You still have not answered my question about white-collar cases.
4. While it is true that YCT lists him on their “rabbinic advisory board” at the beginning of the article he only lists positions at Stern College (which machshirs him in my book) – and BTW, the YU website has his shiurim and Columbia and NYU law schools. While Rabbi Weiss has moved significantly to the left it could be that Rabbi Berman did not. In any case, he was quoting Rav Soloveichik.@YitchokM………
This is weird, like writing to myself (as you have my first name and last initial)………………..
I have discussed this with criminal lawyers who practice here in CT Superior Court and the Federal Court of this District.
CTL’s next older brother happens to be a Criminal Defense Attorney (we are not associated in business). He practiced in NY until 2001 then moved his practice to CT. The difference between the court/legal system in the 2 states is unbelievable.
As I’ve stated before, in CT (with the exception of Probate) we don’t elect judges. We also don’t elect District Attorneys. Therefore no overzealous prosecutor is trying to make a name for him/herself as a tough guy to win election.
We have no overworked ‘Public Defenders’ employed by the government to represent the indigent. Instead there are private agencies who supply the counsel. In many areas all attorneys are expected to take X amount of these Pro Bono defense cases per year. I don’t do criminal work, but many is the time a Judge has ‘ordered’ me to provide preliminary legal advice to the unrepresented (NOT defend them in a trial).
Yesterday I was in motions session for family court issues. Mostly support and visitation contempt motions. The vast majority of people were self represented. Every time a plaintiff brought a motion for contempt against an ex-spouse for non-compliance of a support order, the judge cautioned the defendant that if they were found in contempt they could be put in jail until the account was brought current; and that they should seek legal advice before opening their mouth to speak. If they did not have an attorney and could not secure the services of one immediately, the judge assigned waiting attorneys such as myself to take the parties into a conference room and try to negotiate an agreement while explaining the reality of jail for non-payment of support. Legal Aid only provides counsel to criminal defendants, but here in the largest city in CT, judges try to equalize the playing field in the court system.>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
On a different subject. I first met Rabbi Saul Berman when he Rabbi of Young Israel of Brookline, Mass in 1970. I may not agree with him politically or level of frumkeit, but don’t consider him a Pariah. I take offense to Joseph calling a REITS ordained Rabbi, both Mr. and a Conservative Rabbi. Don’t like him, fine, but he didn’t attend JTS and is not a member of the Conservative Movement.I actually meant to refer to Saul Lieberman, not Saul Berman. But I see Berman is an affiliate of Avi Weiss and his Open Orthodox denomination.
Avi K.
1. How do you define “overzealous”?
Working for the government. It’s their job to try getting a guilty plea.2. Unfortunately I had experiences with this type in my youth. I’m sorry to hear that, but I’m not sure what relevance it has.
3. You still have not answered my question about white-collar cases.
What exactly is your question? If you’re asking if they’re any more guilty with a guilty plea or being found by a jury to be guilty, my answer is the same. Just to be clear, I’m not saying that most people in jail aren’t guilty and should be there. What I am saying, is that being found guilty by the US court system doesn’t mean you’re actually guilty.4. While it is true that YCT lists him on their “rabbinic advisory board” at the beginning of the article he only lists positions at Stern College (which machshirs him in my book) – and BTW, the YU website has his shiurim and Columbia and NYU law schools. While Rabbi Weiss has moved significantly to the left it could be that Rabbi Berman did not.
Associating with someone whose agenda is to destroy the Yiddishkite that I know makes him posul. I honestly don’t care. He can walk away from the movement and then we’ll talk. I’m not sure where article you referring, to by the way.
(5) In any case, he was quoting Rav Soloveichik.
I don’t have to necessarily trust him. I used to have a book about the life of the man in question. The book had roughly 50 interviews quoting major students of his with contradictory testimonies, regarding matters such as religious Zionism, Shabbos elevators, and even abortions.Yitz,
1. And it is a defense lawyer’s job to free his client so he is also overzealous by your definition. So are plaintiffs’ and defendants’ lawyers in civil suits. So are insurance adjusters as their job is to lessen the company’s liability. so are actuaries, accountants and just about everybody else. Sorry. Does not hold water.
2. Relevance to the “lower-class” people to whom you referred.
3. The requirement for documentation.
4. Guilty by association? So Joe McCarthy was right?
5. How about something that you can read for yourself? Look up the Gemara in Nida 61a regarding Rabbi Tarfon and the Galileans who were wanted for murder. In any case, it is a sevara. If someone is guilty ofthe crime for which he is imprisoned he is not a captive. He is a criminal being punished for his crime. There was also the case of Rabbi Eliezer b’Rabbi Shimon who turned over thieves for execution (Baba Metzia 63b). See ממה חשש ר’ טרפון? / יעקב צ. מאיר.
It is definitely not prosecutors’ “job” to overzealously seek convictions — that is just the messed-up macho culture that results from our system. Their actual job, as defined by the relevant laws and codes of ethics, is to seek justice (that is, decline to prosecute if you don’t think he’s guilty, or seek only the punishments the person really deserves and that would be most fair or best for society.) A Rav told me that the reason he’s against the death penalty in America is because prosecutors see themselves as having a stake in the outcome and getting a conviction and the sentence they want. This is great contrast to the Torah system, in which there is no prosecutor and the court (which is neutral and has no stake in the outcome), is in charge of determining the facts.
The Torah Bais Din system as it it existed in Europe was neutral and fair. However, that is not true in the US . Let’s face it, the reason why the Satmar brothers are in civil court is because each brothers Bais Din ruled ( no surprise ) in their favor.
Yytz,
1. Rav Moshe did not share your rav’s concern (IM CM 2:68). BTW, a ben Noach can be executed (according to the Chelkat Yoav and Rav Aharon Soloveichik that is only a maximum penalty) for violating any of the sheva mitzvot. If a person goes down to the level of murder he has certainly already violated several of them.
2. The Torah system is only for a time when Am Yisrael are all tzaddikim and crime is very rare (Maharal, Chiddushei Aggadot Makkot 7a). In “normal” times it would result in hefkerut (Ran, Derasha 11).
3. Who says that there are no attorneys. The witnesses are also accusers and according to Prof. Nahum Sarna there was a public prosecutor in Tanachic times whose title was Satan (which can mean “accuser” or “enemy”). Chazal speak of kategors and senigors in Heaven so apparently it was in use in their time. They also say that anyone, including the judges, can speak for against the defendant (Sanhedrin 32a).
4. One can also say the opposite. Being that the prosecutor does not want a loss he will decline to prosecute, as is his right, where he does not think that there is a strong chance of obtaining a conviction.
5. The defense attorney’s job is also to see that justice is done and not rack up acquittals. However, he is just a macho as the prosecutor. In amany case he is even a former prosecutor who decided to make more money.
Joseph, have you ever served on a jury? Your description of what you imagine as typical jurors doesn’t jibe with my experience.
Mammele ty for responding to what i wrote i knew Joseph would not I am not frum enough to merit his acknowledgement.
My experience matches the experience yitzchokm described above with the system.
CTl, electing vs. appointing DAs and judges can swing both ways. In a liberal jurisdiction being lenient will get a person kudos (as is happening in Manhattan and Brooklyn). On the other hand, someone who is appointed will be expected to give patronage (BTW, NY actually has a hybrid system as lower court judges are elected but generally picked by agreement among party leaders – Rachel Freier had tremendous siata d’Sehmaya in her uphill battle). While the US may or may not be bound by Halacha in this matter (there is a machloket regardingthe mitzva of dinim) both Abarbanel and Rav Hirsch say regarding “Shoftim v’shotrim tasimu) that the Supreme Court should be elected. Abarbanel even says that the lower court judges should be elected although Rav Hirsch says that they are chosen by the Supreme Court.
In any case, according to what I have read (and you can ask your brother to confirm or deny), prosecution offices everywhere suffer from a lack of support staff and relatively low salaries. This would indicate that those who stay are either independently wealthy, have highly paid spouses or are very idealistic. So far as the general balance is concerned, a prosecutor is required to hand over exculpatory info whereas a defense attorney may not reveal damaging info.
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