NARR 384-386

CCAR RESPONSA

New American Reform Responsa

238. Jewish Lawyers and Terrorists

QUESTION:According to Jewish tradition, is a Jewish lawyer obliged to defend Arab terrorists who attempt to kill Jews in Israel if a Jewish lawyer is designated to defend them? Is a Jewish lawyer obliged to defend terrorists who attempt to kill people in general if a Jewish lawyer is designated to defend them? Is a Jewish lawyer obliged to defend a member of the American Nazi Party when he knows that the goal of the American Nazi Party is detrimental to the Jewish people? (Rabbi Jack Segal, Houston TX)

ANSWER: We should begin by making it clear that the current system of appointing a lawyer or the hiring of a lawyer to defend appears late in our tradition. Although a person might have engaged someone to speak for him, this was usually not an individual who made his livelihood as an attorney. A representative akin to the modern attorney was used if the individual could not appear personally due to illness or distance or if one of the parties felt inadequate to the test of presenting a case. Most cases proceeded without an attorney. The traditional Jewish court procedure saw judges engaged in interrogation and so they did much of what attorneys do in the American courts. Various responsa mentioned attorneys and dealt with problems associated with them but not with our problem (Jacob ben Judah Weil Responsa; Meir of Rothenburg Responsa; Isaac ben Sheshet Responsa #235; Moses Isserles Responsaand others).

Although there is nothing like a court appointed attorney in the traditional system of Jewish law, nevertheless, the tradition may provide some guidance for Jewish attorneys in the United States and in the State of Israel in which the courts function differently. In these systems an accused individual engages an attorney or has an attorney appointed. What is the duty of a Jewish attorney under those circumstances?

In order to answer this question, we must ask ourselves about the purpose of a trial. Our concern is justice and that was expressed by the Bible which demanded close cross examination of the witnesses (Deut 13.15) as the accused was perceived innocent till proven guilty. The accused must be present during the examination of each of the witnesses who are testifying against her/him (Yad Hil Edut 4.1). Furthermore, the defendant must be personally warned by those who saw the crime or by someone else (San 30a; Git 33b; Kid 26b and Codes). The examination must concentrate on precise facts and not wander afield (San 32b; Yad Hil Edut 18.2; 22:1 ff; Shulhan Arukh Hoshen Mishpat 15.3; Responsa Rivash #266).

There are strict rules against self incrimination and no evidence of that kind is permissible (Ex 23.1; San 9b; Yeb 25; San 6.2; 18.6 and commentaries). The defendant may plead on her/his own behalf in front of the court before the court begins its deliberations (M San 5.4), but he/she is not permitted to say anything which might prejudice the court against him (San 9.4). If the defendant is not capable of speaking for himself/herself, then a judge may do so for her/him (San 29a). If the matter involves a death sentence, then the court remains in session until the individual has been executed so that if any new evidence appears, the execution may be halted (M San 6.1; San 43a and YadHil San 13.1 ff).

This is merely a sample of judicial safeguards against injustice, it demonstrates the great care given to the defense of the accused and the efforts made on his behalf by the ancient system of courts. Lawyers or other representatives have not been involved, but the spirit of the law demands that we seek justice. We, in many modern lands, do so through an adversarial procedure.

The spirit of traditional legislation would indicate that lawyers in our system must participate in this effort to seek justice. This would apply to war criminals, terrorists or others who may be tried in the United States or in the State of Israel. Jewish attorneys should consider themselves within the framework of tradition if they are appointed to such tasks or wish to volunteer for them. No one can, of course, be forced into such a position against their will. They will help to assure that justice is done and that the accused has a reasonable opportunity to defend herself/himself within the framework of our judicial system. “Justice, Justice, shall you pursue” (Deut 16.20) or “in righteousness shall you judge your neighbor” (Lev 19.15) will continue to be our guide.

April 1989

If needed, please consult Abbreviations used in CCAR Responsa.