by Rabbi Jerrold Goldstein, former state chairperson of CPF
When does a court accept the testimony of a witness as true? How do we know that the witness is telling the truth? What do we do in cases when two or three or even a hundred witnesses disagree on what they saw happen? Questions of witness reliability concerned the Jewish sages of two thousand years ago. Those rabbis knew that eyewitnesses could be mistaken about who did what to whom. Some witnesses actually lie. Some witnesses are confused. Some witnesses imagine they saw what they didn’t really see. Some witnesses say what they think the police would like them to say. Some witnesses are trying to shift the blame from themselves. In fact, the truth is often very hard to establish.
Have you ever served on a criminal jury when the death penalty was an option? It is an awesome responsibility. Imagine what it feels like to be part of a jury that was wrong in its conviction. Imagine what it is like to learn that the witness testimony you relied upon was false. If you don’t think that ever happens, then hear the story of Thomas Lee Goldstein. He is a Jewish man, although not my relative.
Thomas Goldstein was tried in 1980 for the shotgun murder of man on a Long Beach, California city street. Tom insisted that he was innocent. Based upon testimony from two people, the jury found him guilty. One was an eyewitness and the other was a jailhouse informant who said he had heard Tom admit to the crime. Luckily, Tom was not sentenced to death; but he was sentenced to life imprisonment without possibility of parole.
I say he was lucky because the jailhouse informant was eventually exposed to be a liar, and the eyewitness retracted his testimony in 2002. Then it took Goldstein’s lawyer two more years to get an official ruling that Tom was not guilty. A judge finally released Tom from prison last spring. His mother (a 76-year-old woman) declared it “a wonderful gift for Passover.” She was nicer than I would be! Twenty-four years in prison for a crime a man did not commit, that’s bad-very bad! But imagine if Tom had gotten the death penalty back in 1980. That would have been a cruel and destructive court decision.
The death penalty is an absolutely final penalty. It is irreversible. Once a prisoner is executed, there is no going back. If the convicted person was already sent to the gallows or the gas chamber and then the witnesses’ testimony turns out to have been false, then rabbis call that court chab-lanit, destructive of judicial fairness, destructive of human decency
Not wishing to see the Sanhedrin act destructively, Rabbi Yehuda Hanasi cautioned Jewish judges to sentence not more than one person to death in seven years. But his colleagues concluded that the possibility of a wrongful execution was so great that they called for even more caution in handing out the death penalty. Rabbi Eliezer ben Azariah said in a Mishnah discussion that the Sanhedrin ought not issue a death sentence more than once in 70 years.
Two other rabbis argued that a death sentence even once in 70 years would be chab-lanit. The Mishnah reports that Rabbi Akiba and Rabbi Tarfon emerged from the death penalty discussion as abolitionists, totally opposed to any executions under any circumstances. “If we had been in the Sanhedrin,” they declared, “no man would ever have been executed.” They were saying that the evidence brought by witnesses is always so subject to flaws that a death penalty is never appropriate. Executions always make a government look destructive and tyrannical. No matter what the crime, a good government should never execute its citizens. Life and death should be left in God’s hands.
This article is adapted from a sermon Rabbi Goldstein gave at Temple Israel of Hollywood on Shabbat, October 29. Rabbi Michelle Missaghieh invited him to address the congregation. The text is Mishna Makkot 1:10.