A Braying Ass - a Poem

If only
G-d would teach my tongue to speak
I would rend your toughened heart
With tales of sorrow
Sweeter than wine

If only
I had the mind of a man
Not a braying ass
I would explain
As though life were a map

If only I were strong
I would lift mountain peaks
Only to see
The flakes of truth
Buried beneath

If only I were straight
I would show you the precision
We wander drunkenly past
What has been twisted,
Who can straighten?
Vanity of vanities -
All is vanity.

Gone the white bones
Of my father's house
Left far behind
By rattling metal wings
And soft Russian murmurs
In my clamor to escape
My home
I forget to say farewell
Tripping over boots
Gratefully purchased
From my enemies

Once
Being Us
Meant something
A precious gift
Now we lie still as stone
Frozen in horrid
Waking sleep
Bored and boring
We aim for the ground
And do not find it

And me?
Tongueless I croak
Mindless I wake
Weakling, I pull at
Shackles iron-heavy
Broken, I cry
Until when, my Lord?
How long before Your Presence
Rests on us
Again?

Freaks Like Me - a Poem

Freaks Like Me - a Poem

Realization strikes
Like lightning
Hurling me down
Slippery slopes
Of Tsfat
I am not human, I think
So obvious
How could I miss it?

Maybe I am not alive at all
I am a thing,
No a person
A useless item left behind
Unwanted, good for nothing
An umbrella whose spokes inverted
In winter winds
Or maybe not

What thing am I?
I ask, and muse.

Perhaps a chair
Missing one leg
That tips and rattles
When sat upon
But no, that is not me.

Perhaps a slide under a
Microscope
One single drop
Of crimson
Squashed wide and flat
Revealing nothing
Rapidly discarded

Perhaps I am
Coals and ash
In a stone hearth
At night
When all the guests
Have left
Raked once too often
Not even a spark remains

Or an old boot with one hole in the toe

No.
I am none of these
Things
So easy to classify
That fit so naturally
On some rickety shelf

Then I realize
I am a freak
And it all makes sense

The Apple of My Eye - a Poem

The Apple of My Eye

I stand in the ruins

Palaces of crystal and gold

Ground fine,

Translucent sand

Sparkles in the Western sun

 

Everywhere signs

Of what was before

No gilt or foil here

All solid oak and

Silver hinges

Now dust and ash

With no-one to mourn it

But me

 

All these shells

Eggs with no embryo

Vessels with no water

Fleeing beams of light pick out

Dust motes and

Turn shadow to blackness

All around me walk the survivors

Stunned broken alone

No expression, no recognition

Life itself now a curse

No more strength to

Strive after the wind

 

Far away a country

Swims in molten gold

Lying agonized

Spine broken

Will shattered

Alive

 

Haughty words still echo

Through man-made mountains

Once known for making passages for the wind

Howling the builders out of its way

Oceans of tar bury tortured earth

 

Once a man here was judged

By opulent travel

Now his horses wander

Dazed and wild

Through silent streets

His chariots, piled high

Burnt long ago

Some bitter winter many years past

 

The broken pitiful creatures living here

Crane their eyes towards a pale and rheumy sun

They cannot feel its warmth

They ask each other:

Where am I? Where am I?

No-one can answer.

The rain is white flakes of ash

Burying all as one

A man a chair a bicycle

They are all the same

 

Still the heart beats

Far away

Faint

So quiet no-one could hear it

Impossible

True

Spine broken, she walks

Scarred and bruised, she is whole

In defeat, only

Dignity remains

 

How we wrestled, my brother

So long and so fierce

The tortoise would shudder

The eagle was ashamed

A perfect test

The dust rose to Heaven

I face myself

And I fail.

 

How you laughed.

How you preened.

Yet you did not know

You did not understand

I was not fighting you -

I was dancing.

I did not hate you –

I was a player with an ancient part

My aim was not to win

But to delay you

Until my master arrived.

 

Now you are lost

Trampled underfoot

Undeserving of his sword

And I do not feel

Proud glad righteous

I feel only fatigue

And pity.

 

How you lost your way.

How cheap your price.

Malchut Beit David Ch. 10C - Judicial Corruption, New Technologies and Record Keeping

(i) The Need to Document Proceedings

Given the need to record court proceedings properly, especially if they are held in private and not publicly, and given our current levels of technology, I would suggest that the entire court procedure should be recorded in both audio and video in all cases. 

These recordings could be kept in very small vessels - discs and similar tools are becoming smaller and smaller every year. They should be kept for a period of time sufficient for any “fall out” of the trial to be resolved. 

In cases of liability in the West, this is usually seven years. I would argue this is insufficient, as sometimes a wrongfully-accused man or woman is only cleared decades later, and many similar issues could necessitate the review of these recordings long after seven years.

Since most forms of electronic recording become corrupted and unviewable fairly quickly, court archives must be duplicated regularly, the interval depending on the media used for this purpose, and the Sanhedrin must maintain a well-organized and staffed archival service for this purpose.

These videos could also be reviewed by judges in the case of an appeal. This would allow the appeals court to get the closest possible understanding of the matter prior to court - much closer than if they merely read the judges’ ruling or reasoning, or the court transcripts as they are constituted currently.

With suitable video editing, so that voices, names and faces are disguised, these videos could, perhaps, be used as training videos for new judges. They could review them and render their own verdicts to experienced judges, who would then show them the ruling of the court in the actual case, and could compare.

Whether this would be an invasion of privacy, despite disguising identities as best possible, would be a matter for the Sanhedrin itself to consider. 

In any event, discretion and privacy of the accused and plaintiff, or in the case of monetary disputes, the two litigants, must be respected at every level, and in every means possible. Torah courts must not be a public spectacle, but a holy environment which brings proper kavanah (intentionality) to the process of seeking justice to build a well-ordered society.

A judge who knows a litigant personally must recuse themselves. Failure to do so is corruption by definition, according to the Talmud. 

It is probable that the litigant does not need to know the judge very closely, so wearing a talit as a judge is probably a good idea, assuming the judge’s face can still be seen during court proceedings. If the judge covers their face with the talit when rendering the verdict, this should not be a problem, as it is only the process leading up to the verdict where the facial expressions of the judges should be important, as we will see shortly. This makes the judge rather bland and anonymous to the litigant, which gives the judge as much privacy as possible as well.

(j) Record Keeping and Judicial Malfeasance

I have already explained that the best possible recordings in both audio and video should be made by the courts of any proceedings, and should be kept as long as necessary to ensure proper records should the matter once again require litigation in the future. This may involve duplicating the records periodically, in case the original storage device breaks down, and more than one copy should be kept of all records. Access to these records must be severely restricted, and only available to those parties with an appropriate need for them in the performance of their duties, or the litigants themselves in preparing for appeals or similar matters.

Further, these recordings should be made from more than one angle and location in the court room. It must be possible to clearly hear all parties, for instance. It must also be possible to see facial expressions and movements, not just on the faces of the litigants, but also the judge, and even the court guards, clerks or even janitors, which means these recordings must include any period of time the court officers are working, even if the trial is in recess or something similar. 

Imagine, for instance, that the caretaker tidies up and accidentally throws out some important document or evidence. It is vital to be able to show this and determine the correct course of action.

The comments and facial expressions of the judge are vital, as any issue of judicial malfeasance or misfeasance must be studied by the appropriate authorities, and the recordings must permit this. With modern technology, it is not difficult to format these recordings to show many angles or camera views simultaneously.

Let me give an example of a real situation in a Canadian court which demonstrates the need for this change in court technology. A certain judge in a trial made racist remarks to a litigant, who was rather upset by this. After the trial, he intended to seek redress, and requested a copy of the court transcripts. The office from whom he applied required this individual to supply his or her reasoning, and s/he did so.

They were then subjected to a lengthy delay before receiving the transcripts, and when they did, found the comments by the judge were somehow missing. At length, a court clerk disclosed that the judge had pressured him/her into deleting the offending comments.

Having a complete video and audio recording of all proceedings would lessen the chance of such occurrences. Archivists should not have interaction with sitting judges, generally speaking, and should be held accountable for missing recordings or damaged or altered recordings. 

In a case where a judge is accused of misconduct and the recording is deleted or damaged, it should be the assumption of the investigative bodies that the accusations of misconduct are correct, and both the judges and the archivists involved should be punished accordingly. This will ensure these individuals have a motivation to keep records properly.

Canada’s courts play very slippery games with litigants about the litigant’s ability to maintain their own records. Courts often state that private recording devices are illegal, when this is not actually true. 

This matter should be resolved formally. The litigant has a right to the trial records as a matter of course, and generally should not need their own. Yet if the trial is to be kept discreet, and a litigant “leaks” the records to a news service or other location to build indignation, this can have great consequence for the other parties involved in the trial. An individual litigant, accused or plaintiff SHOULD have access to these recordings if they request them. They should also be punished legally for misusing them.

Recording entire trials with video and audio would reduce the odds of poor record keeping by a stenographer or similar clerk who could not keep up with the flow of information and missed comments or issues. It would also allow more data to be available, as facial expressions and similar issues cannot be typed out. Finally, the clerk as record keeper has their own sense, and uses it to discern what should or should not be recorded, and even if this is not in any way corrupt or in bad faith, they may simply not see the value or accuracy of another perspective. 

Obviously recording the victim’s face while the crime is related is painful and upsetting. They must be informed of the limitations of use of such recordings in advance, and the punishments for judicial employees or litigants who misuse them, to set their minds at ease as much as possible. 

They should also have explained to them the reason such records are important at all, so this does not feel like some form of reprisal for coming forward. If these recordings can be used for training purposes with identities concealed, as I have suggested, this should be explained as well, and if a particular litigant wishes their trial not to be used, this should be considered carefully. Only if a case is so precedent-setting that it is a necessity for judges to see this individual case to be trained should their objection be set aside.

Technical experts will be needed to set up the recordings, test their effectiveness and remove them at the end of the trial. They should be on-call at all times during the trial, but these technicians have no right or cause to be in the court rooms when the trial is being conducted. 

Testing should be performed before the trial commences each session, and if technical adjustment is needed, the court procedure must be stopped while the technician is working. The technician has no right to be aware of the details of the trial or the litigants.

As new technologies emerge, better methods for recording might be available that bring these same goals to a better resolution. The best possible use of new technology should be made in the interest of justice. The Sanhedrin itself should rule on whether new technologies will help or hinder their work, are halachically permissible, and if they are well-tested enough to be known to be reliable.

(k) Strengths and Weaknesses of New Technology

The obvious advantage of recording trials is the amount of information which can be recalled at will, and can be stored for tremendous lengths of time in tiny containers, like discs, which take up very little space in an archive.

Another major advantage of recordings is that they do not lie.

There are, however, some problems and questions with using these technologies, and one of the biggest is which should be believed more commonly - the recording or the testimony of witnesses?

Video and audio recordings can be doctored with more and more ease. We tend to think that if a person claims the evidence was doctored that they are lying or paranoid, but this is more often the case than one might think. If one doubts the ease with which this can be done, consider how many people who are not computer experts produce incredible charicatures or fantastic images with software like Photoshop.

Even more so, consider the unbelievable special effects in modern film. I suspect that if one showed a movie like “Transformers” to people living one hundred years ago, they would think giant robot aliens were real, threatening, and would begin planning for an invasion. So fluid is the insertion of new sounds, images and other effects into live-motion film now, that one often cannot tell what is real and what is illusion.

Doing the same thing with a video recording, especially now that they are digital recordings, is tremendously easy. Let us assume one wishes to frame a person for robbing a store. All they need is one film of this person walking and another of the store to combine the two into a fairly seamless image of the accused in the right place and time, even if they were not present.

With the new forms of digital animation, once one creates an animated figure, it can be moved into any position or made to perform any task without much artistic skill beyond the creation of the animated character. Would it be any harder to make a digital “map” of the person one wanted to frame, and then, using a green screen or similar tools, have a person act out the theft, and use this as the guide for the animated image of the framed victim?

Let me give you a sense of how easy it really is to doctor recordings. I am so technologically limited it is bizarre, frankly. One would think I would have figured more out by accident than I have with effort. Yet I could produce some surprising false recordings if I wished, even with my pathetic technical abilities.

If I took my $60 digital audio recorder and made several tracks, imagine what I could do, using only my Macintosh computer (the most basic they sell) and the software that comes with this computer without any extra expenditure.

I could, for instance, record a conversation with a friend in Tveriyah in the winter. Since I program the date of the recorder, I could set a false date, and the recorder would include this with the sound - say the previous summer.

I could then record sounds of traffic and the chatter of crowds in Paris, with French voices in the background, announcements of bus times and similar information.

I could then go to a zoo or similar location and record bird sounds.

With the software on my computer, I could combine these three recordings as one track. I could even edit out the sounds of the background noise in Tveriyah to be careful - rain, which might give away the season, or Hebrew-speaking voices in the background. I could erase any parts of the conversation I did not want heard, or even erase one person’s voice, but leave the other. I could take the conversation’s components and re-arrange them to make the meaning of the discussion different than it originally was.

I could then either turn this combined track and turn it into an MP4, or I could play it through my computer speakers into my digital recorder, adding the date I wanted it to read, and then download this MP4 to a website or playlist or something similar.

If I wished to show that Ploni was in Paris last summer at the time of a serious crime, and that he is the most likely suspect, this would not be at all difficult, even for me. The average listener would find it very convincing, although I suspect even a superficial glance by an expert would show the many layers of editing and change. Still, this is a cheap audio recorder and a cheap Macintosh, used by someone who often can’t get his printer to work...

In some cases, especially with the issues we have discussed of trying cases in the “court of public opinion,” I do not even have to prove the individual is guilty. Destroying their credibility is often enough to achieve the rasha’s ends. 

If the individual is dragged into court, doctored evidence presented, and the case is dismissed, the damage is already done. Imagine, however, how much more persuasive a technical expert with better equipment could be at such a task than I could! They might be able to make this doctoring very hard to detect. They could certainly have the voice of the framed person say anything they wanted, just as they could be shown moving in any way desired.

Recordings do not lie, but they do not tell the truth either. They are a simple medium for storing information, and exercise no judgment or discretion of their own in what they show others. They also do not feel remorse, guilt, Yirat Shamayim or anything similar.

The Torah, both Written and Oral, give great respect to the general tendency of a Shomer Shabbat witness to tell the truth. The Talmud comments, for instance, that even witnesses who might steal would generally not make a vain oath in Talmudic times. Since witnesses for any capital crime, or anything very serious, had to testify in pairs for conviction, this makes it even less likely that they will lie. 

To do so, they would not only have to find someone else villainous enough to go along with them, but would have to be very certain the judges could not tell, and trip them up by comparing their testimony and asking probing questions. Even if a person is evil enough to be willing to knowingly bear false witness, they probably are not willing to have done to them what they intended to do to the victim, or to receive public lashes, which are the typical punishments for such crimes.

The reverse could occur just as easily. Shimon and Reuven testify that they saw the accused murder someone in a certain time and place - a capital crime, where conviction results in death. The guilty party then makes a recording as I have described, showing Shimon and Reuven enjoying a stroll in another country when they say they were watching the accused. 

If this worked, these real and honest witnesses would appear to be “eidim zamemin,” or false witnessed. The punishment would then be to do to them as they tried to do to the accused, so Reuven and Shimon could be executed for delivering honest testimony, G-d forbid. It seems likely that we would still prefer to rely on human witnesses to tell us they saw Reuven and Shimon in a different location at the time of the crime.

Thus, while the human witness is more fallible, they are usually more trustworthy in many ways. Even their limitations can be valuable to the judge, as he could use his Da’at to determine how reliable the witness is, and what possible motivation he has for testifying falsely.

The judge cannot test the video recording the same way. He has to believe it is likely to have been doctored and assemble experts to assess it, instead of being the expert doing the assessment, and then must hope he has selected the right experts, and that they are honest themselves. One might wonder if someone adept in creating false recordings would be the most honest person in general...

The courts should probably employ their own technical departments to assess the validity of any recorded evidence, and this should probably be done as a matter of course. These technical experts would have to be numerous enough, and randomly assigned, to ensure no-one could predict which expert would examine the recording and offer bribes or threats to co-opt this court expert, as well.

In the case of court recordings, doctoring the recordings of proceedings could serve three purposes. First, if a judge or tribunal was corrupt or incompetent, they could wish to cover this up. 

Consider the case I mentioned of the judge who made racist remarks and forced the court clerk to remove them from the records, for instance. Second, if one of the litigants wants to frame the other, they could work to do so using these resources. They could, for instance, take their version of the recording, doctor it, and pay court functionaries to enter the false version into the archives retroactively. They could then demand an appeal, and the recordings would show what they wanted them to. Such a person could also doctor their recording and “leak” it to the press or public to build public indignation.

The use of recordings, then, would have to be supervised very carefully, and meticulous records kept of everything involved. The situations where recordings could or could not be used would have to be determined by the Sanhedrin generally, and ongoing assessment of the changes in technology would be needed to ensure the courts kept up with the times, had the latest electronic security, etc.

Electronic records can also be erased by accident very easily. Spilling one’s coffee on them could do so. The night cleaner’s vacuuming could do so. Further, all methods of recording digital information break down over time, each medium lasting a different length, so that if the courts were not careful, they could find these records unviewable after only a few years, without very meticulous archival procedures. Paper records, bulky and irritating as they are, last longer, generally speaking.

Any and all new technological developments affecting the courts would need to be assessed on an ongoing basis, which means the Sanhedrin would need a department specifically charged with studying new technologies to determine if they could be of use to the courts, and if so, in what ways. They would need to assess, likewise, what the strengths and weaknesses were of each new technology.

Some new technologies are so obvious to us when common that imagining life without them is very difficult. In Sherlock Holmes or Hercule Poirot mysteries, finger-prints did not yet exist. Reading these stories, it seems to me, as a modern reader, inconceivable that such elaborate efforts are needed to prove who handled a kitchen knife or pair of glasses. 

Yet when finger prints had already been long established and accepted, DNA evidence was still far in the future... 

As we learn about new technologies, we find new limitations, and new ways to corrupt judicial processes as well. DNA evidence can be used to show a given person was present at a crime scene, only to discover they were present there, but many years earlier, or that the true criminal simply dropped some hairs and fibres in strategic places while committing the crime. There are some cases where this is not possible, of course, but it is only with time and study that the limits of each new technology, and often the full benefit, become clear.

The courts should strive to balance the utility of new technologies for better achieving justice with Torah principles. If the Torah prevents certain kinds of testimony or evidence, it must be respected. If it does not, the technology’s best use should be employed when possible.

(l) The Autonomy of the Courts, and Avoiding Undue Influence by Other Government Bodies

It should be obvious that the Sanhedrin is probably the single biggest check-and-balance to any level of government acting inappropriately. It is thus essential to ensure the judiciary cannot be pressured into making a ruling that helps the state to do something wicked or corrupt.

This is why the Sanhedrin is not a part of the civil service of the Malchut. It is the Chochomim, not the Melech Yisrael, who do most of the work in ensuring the smooth operation of the courts. The Chochomim generally have little to gain through corruption, and are sticklers for accuracy and effectiveness in Torah. 

Since they are not in charge of any governmental structures, do not control budgets or gain or lose their positions for public policy decisions, they stand out as a very independent group, compared to most. 

Their role in selecting judges and ensuring these individuals are reputable and honest is itself a safeguard. The vast number of Torah authorities available allows difficult questions to be worked at by many differing perspectives, each with great merit. 

The inherently chaotic and anarchical character of the yeshiva environment is the opposite of the stiff formality of a civil-service, which prevents a cold and heartless administration of these matters. 

The large number of Talmidei Chochomim at any time gives a large number of possible judges to choose from for appointments.

The Sanhedrin itself is a government structure; the Chochomim are not. It is the Chochomim who would appoint the judges (many more than serve on the Batei Dinim, since it must be necessary to replace judges who become ill, or recuse themselves because they know a litigant too well without disrupting court activities). In fact, since an entire tribunal can be set aside, the number of judges on active duty must be at least double those presiding over trials at any given time.

The Sanhedrin administers its own budget, facilities, libraries and archives. All these services and any like them fall under their umbrella, and the Chochomim have no influence on these issues at all. 

Thus, the Chochomim are an important safeguard against judicial corruption as well.

One of the largest problems in Canada, and probably many Western countries, in the court-room is the over-burdened court system, with subsequent delays which are not only unreasonable, but often unacceptable in law, before a trial begins.

In Toronto, for instance, so many prisoners were sitting in one of Toronto’s oldest and most decrepit jails awaiting trial for years on end, never having been convicted, that the courts eventually closed the jail and freed everyone in it. 

This is not a solution - it is adding insult to injury. 

Some of the prisoners were not guilty, and needed their day in court, and should have been compensated for state incompetence resulting in their loss of freedom. Others WERE guilty, and needed to be convicted. By acting as they did, the courts punished the innocent by incarcerating them without trial for long periods of time, and then rewarded the guilty by letting them out without trial or punishment...

The Sanhedrin must ensure speedy trials within a reasonable time frame, and must make regular and rapid adjustments to problems of delayed trials, so that such an event never occurs.

Part of the problem with delays in trials is that there are not enough judges to hear the many cases. As a result, judges are highly overworked, and spend less and less time considering each matter, often at levels of speed that boggle the mind. In many Canadian procedures, for instance, the judge has as little as twelve minutes to hear the entire proceeding, AND render judgment!

Judges need time to evaluate the issues in front of them, and time to prepare their rulings. If they are overburdened, they will do a poor job, and this is unacceptable for those needing their services. Even if the judge somehow keeps up with their enormous workload, they become jaded, cynical and bitter, and do not put the proper kavod rosh into judging as a result.

Enough judges and tribunals must exist to avoid over-burdening the judges, so that they have the necessary time to render a truly thoughtful, sound and just verdict. This may mean spending more money on judges, but it is a necessity in a just society.

Since Torah standards regarding corruption are so much stricter than those of the secular Western society, the autonomy of the courts must be spectacularly protected. Let me give you an example.

Say the civil service of the Malchut were in charge of the court facilities and support staff. An important trial is coming up, one which involves the Malchut itself, and the Melech or some minister wishes to influence the courts in his favor.

This government official sends a very special and talented chef to the lunchroom of this court two weeks before the trial. The judge is surprised to note that the quality of his lunch has been much improved, and is delighted at this tiny change in his day. 

He has just been effectively bribed, by Torah standards, as his gratefulness to the Malchut for this service influences him to take their side in the proceedings. He is well-aware, without any words being spoken, what the message is: render judgment for me, and I will ensure you keep this chef, and eat well every day. Render a verdict against me, and you must return to your old diet...

This type of issue would be irrelevant in a secular court, but would be highly relevant to the Sanhedrin. In fact, it would probably backfire. The judges would be so angry at such an obvious attempt to curry favor that they would be prejudiced AGAINST the Malchut, not for it... 

In either case, they would have to avoid eating this chef’s food if they wished to avoid taking a bribe, or at least recuse themselves from the trial and eat all they wanted...

Thus the Sanhedrin must organize its own facilities, support staff, and spend its own budget. This budget is prepared by the Malchut, but spent by the Sanhedrin. The Sanhedrin also ratifies budget issues, so this is a layer of some complexity. Is increasing the budget of the Sanhedrin not also a bribe? Yet it is necessary from time to time. Perhaps one solution would be to create a budgetary council of former judges who were not sitting on the bench at the time they made their decisions, and would be disqualified from doing so again, based on this experience.

Another aspect of avoiding budget increases (or decreases) being bribes is to lay out clear principles. Objective principles and standards should be set by the Sanhedrin, to avoid this problem. 

If, for instance, they determine that an individual has the right to a trial within one month of being charged, their budget must be increased if they are incapable of doing so on the present budget, but not if they can meet this standard. 

This process can be used in almost every case. The Sanhedrin must probably employ managers and accountants of their own to ensure the facilities operate correctly, and that the judges are not burdened with administrative issues not within their area of expertise.

Malchut Beit David Ch.10B - Selected Issues with the Sanhedrin

(f) Selected Issues with the Sanhedrin

As I mentioned in the previous chapter, no area of Jewish life is more profusely discussed than the role and actions of judges, and it is not as easy to encapsulate or sum-up as many other institutions. I do not intend to try to explain the court procedures in Torah. This is a life effort for every single Jewish male, at the very least, and my own lack of learning makes this impossible for me. Nor is it pertinent to the goals and themes of this work.

We do, however, need to examine some other issues related to judging to adhere to our stated purposes. They include:

(1) checks and balances against judicial error or corruption

(2) the right of litigants to discretion and privacy

(3) record keeping and methods of ensuring judicial malfeasance is provable, as well as some other common problems with the current court system in the secular West

(4) the advantages of new technologies in judicial proceedings, and some of their limitations

(5) the autonomy of the court system, and avoiding undue influence by other levels of the governmental structure

1. the training of judges 
2. the overlap in the education and roles of Chochomim as judges, priests, Anshei Knesset Ketanah, Torah educators and in other roles

(g) Checks and Balances Against Judicial Corruption

The vast scope of the impact of the judiciary on almost every aspect of life makes checks and balances a very complex matter. In fact, many of these checks exist, and the use of each depends on the scope of the problem with the judiciary.

Such problems could be isolated to a given judge. As Kohelet says, “a single rogue can do much harm.” Should even one judge in a tribunal of three be corrupted, he can seriously disrupt the proceedings in ways that can be obvious or subtle.

Problems could exist with an entire tribunal, numbering three to seventy-one.

Problems could exist within the entire judiciary as a whole.

Finally, problems may exist with the culture of the judiciary, rather than as discreet events. We have described some of these in Western settings, such as the judge yelling at my friend - even if he felt she was deceitful or bad, there is no cause for a judge to yell at a citizen in their court-room. Doing so brings the judiciary as a whole into disrepute. 

I think I have made clear the complacence and corruption of judges as a group I see in the world around me. 

The judge must understand that he, too, represents G-d, just as the Kohanim do, or the Melech, or any other level of government, in point of fact. 

G-d is absolutely simple and has no parts. We human beings must separate midot of G-d if we are to imitate them, lacking the capability to imitate Him through unified behavior without analysis. 

The judge’s role in imitating Hashem’s midah is that of mishpat, justice which correctly balances chesed (kindness) and din (strict judgment), and this is both a very powerful and very dangerous role to be in. 

Acting unjustly as a judge brings G-d’s holy Name into disrepute, not just the judiciary and the Malchut. Further, the judge is a member of the chochomim before and after he is a judge, and thus he is bringing them into disrepute as well, should he act falsely or disreputably. This is apart from the obvious fact that a judge is a Jew and his actions thus reflect on the Jewish people as a whole, for better or worse.

When a Torah judge makes an error, they force Hashem Yitbarach to miraculously correct their poor ruling. This is violating many Torah laws and principles, including “don’t rely on miracles.” Since the Torah mandates human justice, forcing Hashem to take over this responsibility is wrong, and a person who does this knowingly is liable to Heavenly punishment on a miraculous level as well.

A judge who simply errs, despite his best efforts, is not making a Chilul Hashem, a desecration of G-d’s Name, as he is a human being and no heavenly power. The merit of halacha learning is in the effort, as we have said. If this judge has striven to understand the halacha and apply it properly and does not succeed, this is simply the limitation of human beings, and to some extent, in the hands of G-d, as we learn from Chovot Ha’Levavot.

G-d Himself is thus the ultimate check and balance against evil judges. One can only hope that such cases would be rare, if they occur at all in Ge’ulah, and if they did, would be isolated to individual judges, rather than the judiciary as a whole. Were the whole involved, it is possible Hashem Yitbarach might become angry with the Jewish people as a whole, G-d forbid, and punishment could come to the entire nation.

The second check and balance against judicial corruption is the Melech Yisrael. The king can initiate investigations into judicial matters and determine appropriate corrections, punishments, etc. The king should follow judicial matters closely, and every Melech Yisrael is also a shofet, or judge. He cannot over-rule a court decision merely because he disagrees or feels it is a bad ruling. He CAN, however, make charges against the false judge or tribunal, and ask the Sanhedrin as a whole to appoint a tribunal to investigate the matter. Should he feel that the entire judiciary has somehow been co-opted, either in a specific matter or as a culture, he can dissolve the courts with the purpose of appointing new judges as a whole.

This is a dangerous step to take. Removing the rule of law is not acceptable, and this cannot be his action. If the King removes the court system without true cause, he is actually the corrupt one, and is invalidating many Torah laws. He is then the one liable for punishment, not the Sanhedrin.

If, however, he deems such a drastic step necessary, he must have a concrete plan worked out before so doing, and this plan must involve specific actions and timelines. 

To give an example, if the King felt the entire body of judges at a given time are corrupt and need to be replaced, he could dissolve these courts, on the basis that the Chochomim as a whole would come together to consider how to repair the problem, and who should be appointed in the role of new judges. For this to be reasonable, two other steps would be needed. 

First, he would have to tell the Chochomim a specific time frame, such as one month or one year, in which they must develop solutions and suggest new appointees. 

This time frame should be the shortest possible time interval which realistically allows the problem to be solved. It should not last more than a single year, since Hashem Yitbarach judges every creation anew at Rosh Ha’Shanah. It would be a massive Chilul Hashem to have a Rosh Ha’Shanah pass without a judiciary in Israel.

Second, he would not be able to make new laws or decrees until a new Sanhedrin was in place, as no court exists to ratify or challenge them as invalid. This would, in effect, bring government to a standstill until a solution is found, which may actually be the correct course of action in such a case.

Another option is open to the king in such a case. Parshat Shoftim says that Kohanim are also empowered to judge, not just shoftim in general. Should the Sanhedrin become so corrupt as to need replacement, the king could order the Kohanim to appoint an interim court, until a replacement could be found. When the new Sanhedrin was in place, this judiciary of Kohanim would be disbanded. 

The added emunah and integrity found in the Kohanim, discussed in the previous chapter, would make them the least likely Jews to act inappropriately during this interim period, and the most likely to willingly step down when the time came.

For the Chochomim to gather and solve such a problem is an example of the type of action under the reshut of the Anshei Knesset Ketanah. We have said that these Men of the Lesser Assembly are a short-term measure in transition from Galut to Ge’ulah, but that a king may ask a new Anshei Knesset Ketanah to be assembled for specific purposes of a similar nature. 

This issue of pasuling the entire Sanhedrin is a perfect example of such a case. Such a time would be unprecedented and bizarre. The transition from the old judiciary to the new one would be great enough to make creating a new Anshei Knesst Ketanah an appropriate and logical step.

The King can always make decrees, of course, and these can involve punishments up to and including death. Should he feel that judges are abusing their power, and the regular punishments for a corrupt Torah judge are not sufficiently intimidating, he could make measures to punish judges more severely for misdeeds. 

This decree can only be of a short-term nature, since the Torah mandates correct punishments for offenses. Effectively, he is enacting a “fence around the Torah,” and these fences manage specific problems related to specific generations, and each generation has unique needs. The Malchut cannot permit punitive decrees to accumulate over time, or every mistake would eventually be a death penalty.

When Moshe Rabbeinu appointed judges for the first time, he sought out men with certain qualities and characteristics for these roles, as is well known to most of us. One of these should be a check and balance as well, in one of two manners.

A judge must be, the Torah tells us, well-known and well-respected. A disreputable person, then, cannot be a judge. If he is reputable when he enters his office, but becomes disreputable over time, he has BECOME unsuitable, and must be replaced.

Two groups could determine this issue, one more obviously than the other. 

First, the Chochomim as a whole might feel that one of their number, or a group, is no longer a reputable person, and no longer consider them a chochom. If this were the case, these individuals would automatically be unsuitable for judicial roles.

Second, as we have seen, Klal Yisrael as a whole has a powerful voice. If they felt a given individual, tribunal or judicial generation was corrupt, they could and must voice their dissatisfaction. This is the ultimately disreputable individual, it should be noted. If the entire Jewish nation knows of their misdeeds, the stench of such corrupt judges has truly reached Heaven.

Klal Yisrael lacks a method of deposing the judges, however. In such a case, they must petition the appropriate level of government to take action. If it is a matter with a specific tribunal in a specific area, this would be the government of the municipality, and these leaders would bring the matter to the attention of the Nassi of their Sheivet, who would then petition the king to take action. 

The mandate, however, must come from the people, and must have a halachic basis demonstrating a real problem, not a personality conflict or issue of popularity on a general level. Being respected and being popular are not the same.

Finally, the judiciary itself can absolutely intervene, and should do so long before outside intervention is needed. This is not the same as a self-regulating body, as we discussed in the previous chapter. Since so many other checks and balances exist, they are not self-regulating. They can, however, take steps to improve their own actions as a whole, as could any office of the Malchut, or indeed, any Jew or person.

Further, a judge who breaks the halachot of shoftim is actually a criminal themselves. The Sanhedrin could thus constitute a special tribunal to try such a matter, and charge the appropriate individuals with a crime. This is in their best interests if such corruption exists, as they all become suspect if they protect their wicked fellows, and require the king or others to step in. 

The Torah commands us not to follow the majority to do evil. This might be expressed in modern terms as “don’t do bad things on the basis that others do them, or because of peer pressure.” While this is a general commandment to all Jews, there is no reason to think it does not apply to a given group as well - judges should not go along with wicked peers to do evil, any more than Jews in general should. If they are not willing to live to such a standard, they should not accept judicial roles.

As a matter of course, the rebellious “elder,” be they a Sage, a judge or a Kohen, is liable for death in any case. One who is not rebellious in the Torah-mandated sense, but tries to use improper means of ruling, outside the rules of halacha, is a heretic, and is excommunicated. As with any serious sin that is performed in private or not known to the community, G-d will punish the guilty parties, and they are likely Chayav Kareit, or punishable with excision.

A very simple method of reducing the likelihood of such occurrences is to appoint judges for a given tenure, not for life, as is often the case in the West. By regularly changing the judges in a given Sanhedrin, the odds of their becoming corrupt or complacent is lower. This length of service should run 4-10 years, I would guess, and then the dayan should step down and return to a different walk of life. 

(h) The Right of Litigants to Privacy and Discretion

Until a court rules on a matter, no facts can be said to have been determined. No penalty should come to an individual until such a time if it is avoidable.

In the West, it is common practice for the trial to begin long before the charges are laid, in what is known as “the court of public opinion.” News services sell papers and gain viewers by sensationalizing such issues, distorting the account the judges will receive, and possibly creating unreasonable pressure on the judges to rule as the public sees fit.

One would hope that in Ge’ulah, solutions would be found to the paradox of the free press. On the one hand, the free press is an important personal freedom which should not be suppressed, and suppression of these groups is usually the sign of a despot.

On the other hand, since these news services directly benefit from sensationalizing news, and arousing public indignation, whether it is merited or not, and often the owners of these news services manufacture news to suit their financial interests or their political goals. 

News services are often “king makers,” so to speak - the support of a given news service for a politician can get them elected, and many “back room deals” are struck for this purpose.

In Ge’ulah, this last issue should not be a problem, since political leaders on the large scale are not being elected. But news services might still be greedy, and skew their reporting on this basis, or fail to respect proper rules of conduct because of this issue. They might even do so out of competition with their peers, without the issue being greed, or out of desperation to survive with fewer readers or viewers over time.

The Malchut should put in place guidelines for managing these issues, and should mandate a code of conduct for news services. News services who violate them should be tried in the Sanhedrin. This should apply to individual reporters, owners or even the entire company itself. 

Licensing for newspapers should be handled by a department within the Sanhedrin, and as long as the news service abides by the code of conduct set for it, should not be given trouble, but if they violate these rules, should lose its charter and be disbanded. This must be performed by the Sanhedrin, not the Malchut, to avoid the king making use of this power over disputes between the news service and the government.

Part of this code of conduct must include not making a legal trial into a public witch-hunt. Once charges are laid and trial is mandated, the news service should restrict itself to reporting these details, not the matters occurring in court, until the ruling is delivered and appropriate punishments are determined, at which point the news service could report this as well, along with the halachic basis of the rulings.

The individuals involved and their testimony should not be a matter of speculation or discussion in the news. Even if the news service is correct in identifying the guilty party, and smears only this person, the outcome is that the victim is drawn into this matter as well, which is completely unfair. 

I would argue it is unfair to smear the guilty party as well, since the punishment of the court should be the correct outcome, not further punishment meted out by private individuals or society at large, but not all might agree on this. 

Regardless, the accused might turn out to be innocent, and smearing them as the wicked party could, and frequently does, have disastrous consequences for these individuals which does not go away.

Some crimes are automatically matters of public scrutiny and discussion. When a serial killer’s mass graves are discovered, for instance, it is rapidly the topic of conversation throughout their community, and often world-wide. This cannot be prevented in any realistic way. It should not be worsened, however, by unscrupulous businesses like news services or book publishers who take advantage of this tendency.

Trials should be conducted privately, without public access in most cases, it seems to me. Certainly a blow-by-blow account is inappropriate, as we see so much of the time in our present world. 

The problem with this is the public perception that they have a right to know what transpires, and the assumption that not knowing is usually a form of suppressing judicial corruption or some similar matter. Thus, for this privacy to work effectively, strict measures must be emplaced to prevent such occurrences and to ensure the trial is properly supervised by outside authorities, since the public at large actually do NOT have a right to know everything that transpires. 

Consider the impact on a woman who is sexually abused, G-d forbid, by a close relative. She is most likely going to face great difficulty finding a shiduch, where this is inappropriate, and is, in essence, punishing the victim, not the aggressor. 

Holding the proceedings privately is not a sop to the aggressor, but a protection of his victim. If he is not guilty of the accusations, a public trial will not help him either, but will destroy his reputation, regardless of the outcome of judicial proceedings.

Cases such as these are often ugly, and it is a regular tendency of societies to protect such abusers. Recall that the Torah often mandates death for one who has relations with a close relative, and if this is from rape, he is guilty of a number of serious crimes. Not only the improper relation, but the rape itself, is a crime. So too are any physical injuries sustained by the victim. All these factors should be weighed, and someone who rapes their relative is probably Chayav Mitah, or liable for death. 

A death sentence cannot be applied to someone who did not make a choice to sin, so a person who has relations with a relative forced on them is not guilty of any sin at all. 

As a matter of honesty, a woman who has been raped must disclose to her future husband that she is not a virgin before marriage, and a Bat Kohen has more complex issues to manage, but this does not mean she has any obligation to explain how this occurred if she does not wish to. 

One would hope that a loving husband would wish to help his wife heal from such a trauma, and that she would only find support and understanding from disclosing such an experience to him, but this is very much in her own reshut to decide on. Some rape victims feel the need to discuss these issues with those they trust, while others feel the need not to do so.

She must disclose this for her own protection, not that of her husband, as if he accuses her of immorality after the wedding night, she may experience severe consequence, whereas if he knew she was not a virgin and accepts this, she cannot face any unfair reprisal.

It should be noted that men are abused and raped as well. We might argue that this is not as common, but what is even less common is the man disclosing this experience, so none of us can say any statistical “fact” about such cases. 

A man who has been abused or raped has also experienced an enormous and cruel trauma, and needs the same support and respect over it. Since he has no physical signs of virginity, however, he does not have the same need to disclose this before marriage.

Pedophiles and other such individuals should be liable for death generally. While rape is often not a death penalty, bruising a Jew is. It is very difficult for an adult to rape a boy or girl without bruising them, or far worse. The judge should consider that the damage physically to the person’s body is a separate crime from the rape, and thus more than one Torah crime has been committed.

If the aggressor is not liable for death, the courts may mandate measures to prevent recurrence, such as preventing the convicted person from working in roles where they have the opportunity to repeat this behavior, such as being a teacher.