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February 16, 2012

Protecting the innocent

Parashat Mishpatim (Exodus 21:1-24:18)

http://www.jewishjournal.com/torah_portion/article/protecting_the_innocent_20120216

“You shall not take up a false report” (Exodus 23:2).

Steve Leaderman, 38, was on trial this month for failing to disperse, having been arrested on Nov. 30 during the final stand of the Occupy L.A. protest at City Hall Plaza. Tried before a jury, these criminal cases carry up to 100 days in prison and hefty fines.

The prosecution claimed that Leaderman had failed to heed the police order to disperse from the park. To back up its story, the prosecution brought in two ranking members of the police department to testify and showed video footage it claimed proved that Leaderman was not forced to stay but had decided to stay after police ordered the protesters to disperse.  

The defense claimed that Leaderman was not in a position to hear the dispersal order and was restricted from leaving the park by the police.

The case boiled down to two contradicting versions of the events, which is when I was asked to take the stand on behalf of the defense. I was at the Occupy L.A. site as a clergy witness when it was disbanded.

I testified that Leaderman was trapped by the police action at the center of the park, was prevented from leaving the park by the police and was in no position to hear the official police order to disperse, given more than 100 yards away.

During the closing arguments, the prosecuting attorney told the jury, “The rabbi was lying.”

In order to convict Leaderman, the jurors would have to agree with the prosecution that Leaderman had failed to obey police orders to disperse. To acquit him, it would be enough if one juror felt that the prosecution had failed to prove beyond a reasonable doubt that Leaderman broke the law.

At the start of Exodus, Chapter 23, the Torah directs its statutes to the court and judges. The laws outlined in the first two verses, 19th century scholar Rabbi Shimshon Raphael Hirsch wrote, mandate that the court adopt procedures to prevent, as much as is humanly possible, making wrong decisions. First, the Torah notes that the facts of the case be made by the declaration of parties, or witnesses, and secondly, how the judges arrive at and pronounce a verdict.

According to halachah, in Jewish civil cases where there are no witnesses, the facts of the case can be accepted by the declaration of the parties. But in criminal cases, the facts need to be established by the testimony of witnesses in front of a panel of judges.

While the testimony of witnesses and the verdict of the judges form the process of the law, it is, as Rabbi Hirsch points out, the witnesses who are the principal factor. The witnesses are the sole basis for establishing the facts of the case, and in essence a witness institutes the proceedings by having something to testify about.

It is the duty of the judge or the jurors, in the case of a trial by jury, to take every precaution to protect themselves from accepting a wrong presentation of the case. The Talmud adds a warning that testimony cannot be given by one party before the arrival of the opposing party, so that no one-sided impression of the facts can be formed beforehand.

Jury deliberation in Leaderman’s trial took less than an hour. The verdict was read in court: “Not guilty.” The prosecution had failed to prove its case for the first time in five trials of Occupy L.A.

When asked what were the determining factors in the jury’s decision, one of the jurors explained that the rabbi’s credibility made the difference.

As much as they might want to believe the police version of the events, the prosecution’s claim that the clergyman’s testimony was a lie could not have done its case much good.

In the same way that a judge or a jury needs to deliberate with utmost caution before rendering a decision, this same principle is applied to forming opinions about someone else. When we are presented with reports about how so-and-so did this, and so-and-so did that, we must not leap to conclusions and make judgments. The laws of lashon harah (bad tongue), which help to protect the reputation of the innocent, are derived from the same laws that protect the innocent from being unjustly found guilty by the courts.


Rabbi Yonah Bookstein is the executive director of JConnect (jconnectla.com) and the founder and director of Jewlicious Festivals (jewliciousfestival.com).

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