Pacific Jewish Center | Rabbi » law school

The Silver Bullet: Jury Nullification

rabbifink — Fri, 25 Feb 2011 21:13:12 +0000

Every defense attorney knows that even if the jury thinks the defendant is guilty there is one last chance for an acquittal. Sometimes the jury doesn’t care that the defendant committed the crime. Sometimes the jury would rather put a guilty person back on the streets then send them to jail.

I mentioned one of the earliest examples of this that I know about in my paper on Felony Murder, Regina v. Serné (see: My Article On Felony Murder Is Online).

A more recent and famous case in point: OJ Simpson. Jurors admitted that they let him off the hook in the criminal trial because it was their way of fighting against the oppressive criminal justice system.

When this happens, it is called jury nullification.

The judge warns the jury that they MUST follow the law, not their emotions. But if they follow their emotion instead of the law there is nothing anyone can do about it. The jury’s decision is final.

Quite the silver bullet.

Of course it is improper for a lawyer to explicitly argue for jury nullification. Lawyers are bound by the rules of the courtroom and if they don’t follow procedure they can be sanctioned or disbarred. But maybe a lawyer could wear one of those buttons above…?

But what if an activist is handing out information to potential jurors urging them to nullify?

Technically it’s legal. The activist is not telling people to break any law and his speech is protected by the First Amendment. In fact, many Law Review articles have recommended jury nullification in all cases until the justice system becomes more fair to minorities. The authors of theses papers may be hated by prosecutors, but there is nothing they can do to silence them.

The NY Times is reporting that a jury nullification activist named Julain P. Heicklin was handing out his materials outside a court house. Prosceutors had him indicted on the grounds that these pamphlets were tantamount to jury tampering. If found guilty he could go to jail for up to 6 months.

I am not sure that the prosecution will be able to convince a jury that a 78 year old man handing out pamphlets is guilty of jury tampering and even they did, who says they won’t nullify!?

But the real issue here, as Eugene Volokh writes, is the First Amendment issue. Even if speech is going to cause criminal activity, unless the criminal activity is IMMINENT the speech is protected under Brandenburg v. Ohio. The only way Heicklin’s speech is likely to be unprotected would be to say that free speech is somewhat suspended in a court or on court house steps. This is a viable argument but Heicklin was on the sidewalk not the court property.

It will be interesting to see what happens to the criminal case and if Heicklin is found guilty, you can be certain it will be appealed on First Amendment ground.

Links: NY Times and The Volokh Conspiracy

My Paper on Snyder v. Phelps (The Westboro Baptist Church Case Being Argued in the Supreme Court)

rabbifink — Tue, 12 Oct 2010 23:43:08 +0000

Over the last few weeks there has been a lot of discussion about the Westboro Baptist Church. They protested Judaism last week in Brooklyn and they have a case in front of the Supreme Court.

I have been asked for predictions and my opinion on the issue.

Luckily, I wrote this paper for a Hate Speech Seminar I took at Loyola Law School in the Summer of 2010. There is some important legal background, a quasi-prediction and alternative suggestion for the future in there. (I was given permission to post the article by my professor.)

I hope you will take the time to read it, think it over and share your thoughts with me.

I try to avoid legalese, but if there is something in there that needs explanation please leave a comment so I can explain it to the best of my ability.

Enjoy.

(I also recommend watching the excellent documentary on the WBC which follows the paper.)

Sticks and Stones

Loui Theroux produced this fascinating documentary on the WBC:

Do You Know How Many Prisoners Are In For Life Without Parole Who Committed Their Crimes As Juveniles?

rabbifink — Fri, 03 Sep 2010 22:50:55 +0000

Do You Know How Many Prisoners Are In For Life Without Parole Who Committed Their Crimes As Juveniles?

I do.

It depends where you ask this question. There is one answer for the United States of America, the Land of the FREE and the Home of the Brave and there is one answer for the REST OF THE WORLD.

In the REST OF THE WORLD there are 0 / ZERO / nil / Zed / zip / zilch / nada.

In the United States of America, the Land of the FREE and the Home of the Brave there are 2,600.

That is a lot.

Allow me to explain what this means. A 16 year old kid is involved in a homicide. He is found guilty. He gets a sentence of Life Without Parole (LWOP). That means that he goes to prison as a 16 year old and will NEVER see the light of freedom in his entire life. No matter how much he changes as a human being, no matter how productive he can be in society his crime costs him the rest of his life.

LWOP is pretty severe for an adult. But a adult is more culpable for his actions than a juvenile. Yet, me basically are willing to throw away a life for the crime of a child. I am sure we have all done stupid things as children. We grow out of them. Luckily for us we can grow out of them in freedom. For 2600 prisoners that will never have the opportunity to see freedom it won’t matter if they have grown up or been rehabilitated. The purpose of the Juvenile Justice System was once to rehabilitate youth. At this point, it is hard to imagine that is the goal if youth can be locked up forever.

It sounds pretty egregious, right?

One might be tempted to think that this would never pass a vote today. One might assume that if the legislature had a chance to give some youths who grew up and been rehabilitated they could have a chance to show that they are ready to return to society, the legislature would change the law.

SB 399 was that bill. It was voted on last week. It failed. It was close. But it failed.

I can’t believe it.

Hopefully, next time it comes up it will pass.

In the meantime I recommend watching this 30 minute video on some of the flaws of the justice system as currently constituted in the United States of America, the Land of the FREE and the Home of the Brave. It touches on SB 399 and many other important issues. Please watch it.

Is White Bias Racist?

rabbifink — Tue, 08 Jun 2010 06:04:42 +0000

This summer I am taking two classes at Law School that explore many of the issues and themes of racism. I am extremely fascinated by racism, and ethnic hatred. I am still sorting out my feelings on a lot of the issues and I am really happy that I am being exposes to the everything that we are discussing in class.

In Hate Speech Seminar we read a (poorly written, but very interesting) book about the White Supremacy Movement in California through the 80′s and 90′s. (It’s called Skinhead Confessions and you can buy it on Amazon: Skinhead Confessions: From Hate To Hope. Again, not very well written but very enlightening and an important book.)

The question we have been probing is: Where does racism come from? Why do people hate?

Of course, I welcome your suggestions in the comments.

CNN did a series on the famous Doll Test. (I wrote about the Doll Test in Simple Justice | The Story of Brown v. Board of Education: The End of Separate But Equal in Schools.) Anderson Cooper and a team at CNN performed a similar test to try and learn about how early racism can begin and whether we are effectively teaching our children the important lessons of non-discrimination.

I have included some of the video at the bottom of this post. To read more about their study go to the links at the bottom of the video.

In summary, there is a conclusive and scientific (link) “White Bias” among white and black students aged 4-5 years old and less so, but still present in white and black students 9-10 years old. Cooper and his team think this is a result of racist parents and preaching diversity and tolerance but not practicing it at home. This explains why so many children have a white bias.

I have a different theory.

Children, especially young children automatically gravitate to things that look like the things they are accustomed to being around. Young children associate with other children who share their most obvious characteristics. Whether it is height, body size, shirt color, lunchbox or skin color. When young children make choices it is often an indicator of things with which they are comfortable. Of course a white child, with white parents and white siblings is going to prefer things that are white. In fact I am surprised the numbers were not even higher and more in favor of white bias.

The troubling thing is white bias among black children. But this too has a very reasonable explanation. If a black child is a minority and feels like they are different, they will want to join the majority. If the majority is white, then a black child will gravitate to white. It is not racist. It is a white bias. But white bias does not equal racist. A young child with white bias does not portend a future with the skinheads.

I am certain that some of children come from bigoted homes and learned gross stereotypes from their parents. But I am also fairly certain that most of the white children just selected the things that were most familiar to them. Conversely, black children who are a minority want to fit in with the majority and selected the answers that they thought would help them fit in.

CNN, your study is great. But I don’t buy it.

Further, the guilt they made some of the parents feel over their children’s selections is plain sensationalist, irresponsible journalism. To take a few isolated questions asked of a 5 year old and show them to parents and then insinuate that the child is racist and the parents must also be racist is cruel, probably incorrect and a ratings grab. (Yes, believe it or not CNN pulled this shtick. You can find it somewhere on their impossible to navigate website.)

Is racism a problem? Yes.

To label 5 innocent 5 year olds racist because of their white bias? Come on, we are better than that.

I’ve Been Published! My Article On Felony Murder Is Online

rabbifink — Wed, 14 Apr 2010 17:23:42 +0000

(what "publishing" meant before the internet)

There is a very ambitious fellow in our class at Law School. His name is Paymon Khatibi. One day Paymon decided that our class should start an independent journal of law related articles. We would write student notes just like the official Law Reviews and publish them online in a digital journal. Sounds easy, right?

Well it took a lot of work and management to have all the pieces fall into place. Incredibly, Paymon was relentless and did not give up on this dream of his. Today, that dream has become a reality. And for that we are all very grateful.

The Loyola Journal has been published online and is open to all readers. The inaugural issue has 76 pages and includes an interview with famed litigator Robert Shapiro as well as articles about immigration, domestic violence and Guantanamo Bay among others.

When Paymon asked who would be interested in writing for the journal, I volunteered. I like writing and thought it would be a great experience.

As we were studying Felony Murder in Criminal Law I met an incredible woman named Professor Gilda Zwerman from New York. She was taking a little break from New York and was staying in Venice. One Shabbos she decided to drop into the Shul on the Bwach where I am the Rabbi. We met a few times subsequently and she joined my family and some other guests for a Shabbos lunch.

Professor Zwerman told me about a famous Felony Murder conviction in my hometown of Monsey NY! A young Jewish woman (at the time, in 1980) was involved in a well-known Brinks truck robbery. We talked extensively about the case as Ms. Zwerman has become a strong advocate for the release of the now middle aged Jewish woman who has turned her life around while incarcerated.

I strongly urge you all to read her story at JudithClark.org.

Hearing Judith Clark’s story and reading up on Felony Murder while we were studying it in class really gave me a lot to think about. I decided to try and understand the doctrine and realized that in my opinion the whole thing is a huge mistake.

So I decided to write an article explaining how it came to be that we have such an unfair rule in our legal system. It is pretty interesting and is written in a way that a non-lawyer / law student should be able to understand it.

I hope you will take a few minutes to read it and feel free to sound off in the comments.

Loyola Journal link: http://loyolajournal.com/

Link to my article on Felony Murder: Felony Murder: A Dinosaur Living in the Criminal Justice System

Simple Justice | The Story of Brown v. Board of Education: The End of Separate But Equal in Schools

rabbifink — Tue, 09 Mar 2010 10:16:02 +0000

Last week I spoke at Pepperdine University about Jewish Lessons in Parenting. I began my talk by complimenting my parents and expressing my desire to emulate their parenting in the raising of my own children. One such example occurred today.

At Law School we are reading some of the most well-known Supreme Court Cases. A few weeks ago we read Roe v. Wade (banning 1st term abortion is unconstitutional) and the even more important Casey v. Planned Parenthood (upheld Roe) cases. Last week we read Plessy v. Ferguson (after Civil War, Separate but Equal schools were ruled constitutional).

This week we are reading Brown v. Board of Education. This case overruled Plessy and made Separate but Equal unconstitutional in Public Schools. Brown v. Board of Education paved the way for Civil Rights activists like Dr. Martin Luther King Jr. to fight for equal rights for all people in all areas of life, beyond public education.

As I was reading the case I remembered a very influential “Parenting” episode from my youth. Growing up, we did not watch many movies. I saw a few movies on TV, like E.T. and The Wizard of Oz but that was about it. But I vividly remember my father strongly encouraging me to watch one particular movie with him when I was twelve years old.

That movie was a PBS special called The American Experience: Simple Justice. It beautifully told the story of Thurgood Marshall as he learned the law and was groomed into the perfect counsel for the Supreme Court cases to reverse Plessy. The climax of the movie is the Supreme Court case of Brown v. Board of Education and the Court’s ruling that Separate but Equal was not constitutional.

My father wanted me to see it and I recall a strong desire to study the law and become a lawyer after watching it. My preferred career path took some detours along the way, but several years later my interest in the law returned in earnest.

Today, our professor at Loyola Law School, Marcy Strauss, showed the very same movie to the class in lieu of a more traditional lecture and Socratic discussion. All the memories I had as a youngster were re-energized and I was quite moved by the movie, again.

Brown v. Board of Education raises some very important issues that are still very relevant to modern discourse. In just 56 years, much has changed in the landscape of race relations in the USA. Some things are still the same, or at the very least follow the same bigoted roots. There are other minorities seeking equal rights as well. Sometimes, we can go overboard in our sensitivities as I will write about tomorrow. And sometimes, one part of the world can be slow to see that Separate cannot be Equal, as I will write about the next day.

This movie is a must see. My father was very wise to encourage me to see it and I will always remember watching it together with him. (Thank you.)

The part of the movie that moved me most when I was a youngster stuck with me until today. I was talking with some friends at school and I mentioned that while reading Brown v. Board of Education I recalled a scene from this very movie. I had no idea that we were going to be watching the movie in class. I recounted the scene as best as my 12 year old brain could understand it and it was just as I remembered it when I saw it tonight.

The scene is of a study that was being conducted to analyze the way segregated black children felt about themselves. The tester would ask questions of the children using dolls, one black and one white. The results of the test showed conclusively that black children felt inferior. The dramatization of the test was very powerful and I found it on youtube so that you can see it for yourself below.

“To a better tomorrow”

Can Criminals Change Their Ways? | Introduction to "The Thief"

rabbifink — Fri, 08 Jan 2010 18:15:55 +0000

Last semester at Law School I studied Criminal Law. Crime is ugly. It hurts the victims and negatively affects the criminal’s life forever. Families can be shattered and communities can be destroyed by crime.

The system we have today only looks at the criminal. The goal of our criminal justice system is to incapacitate criminals and punish them for their acts. Little systematic rehabilitation is offered to criminals and consequently there is a high rate of recidivism in our prisons. We hope that punishing criminals will deter them and future criminals from pursuing a life of crime. Unfortunately, crime persists and criminals continue to crop up.

There is also research that shows that a criminal is hard wired psychologically with tendencies to commit crime as early as the age of five. It is very tough battle for the criminal justice system to fight when going head to head with ingrained psychological pathologies. It seems there is little hope for a system wide effort to change criminals into contributing members of society.

It is clear that our current system accomplishes one important goal. It maintains order. If not for the justice system chaos would rule the day as people with no care for right or wrong would be able to wreak havoc unfettered. The criminal justice system helps maintain order and some semblance of safety. It may not be a perfect system but in this regard it is the best we have.

While studying Criminal Law at Law School I also studied the Loyola Law School course on Jewish Law with Rabbi Adlerstein. The focus of the course was dual. On one hand we studied much of the substantive law on subjects such as helping distressed motorist, finding lost objects, justifiable homicide and abortion, criminal procedure and many other interesting topics in Jewish Law. On the other hand we learned about a system of rules designed to prevent crime and to create a more perfect society. When Jewish Law was THE law it effectively deterred criminals and focused on the criminal making the victims whole again as opposed to retribution of the criminal. This contrasts sharply with the criminal justice system in western society.

This semester I am hoping to be taking the Restorative Justice Seminar at Loyola with Professor Wood. (I say hoping because it depends on some administrative decisions that are out of my control.) The Restorative Justice concept is similar in some ways to the Jewish Law concept. It focuses on the totality of the crime, not just the criminal and it hopes to help rehabilitate criminals at least in some capacity. I am looking forward to learning more about Restorative Justice (hopefully).

All this discussion about crime and if there is a system that can deter crime is very important. We all want a more productive society. Less crime means less resources spent on deterring and punishing crime. More importantly it give more people the opportunity to be productive members of society. Perhaps most importantly, there are no hurt victims. Yet, much of it is theory as the system in place now is not changing dramatically any time soon.

However, I recently came across a self professed thief who changed his ways. This fellow stole thousands of dollars worth of various items for most of his life. This all began when he was about 5 years old. This is line with the research mentioned above. This fellow never got caught. He was never subject to the criminal justice system and yet, somehow, he turned it all around.

Can we learn from his story? Is there a system that can help criminals adjust their behavior? Does it require punishment?

Click to read the next two posts that tell the true story of “The Thief” in his own words.

A Powerful Film

rabbifink — Tue, 15 Dec 2009 21:14:42 +0000

This short film is a “must-see”. It is part of Liberty Mutual’s “Responsibility Project”. Watch the film all the way through the very end.

Call me a sap, but this film brought tears to my eyes. Real, wet, tears.

Which left me wondering, the film is certainly nice, but why did it elicit such a strong reaction?

I think two parts of the film in particular were resonsible for my emotional response.

1 - The “rules are rules” aspect of sports is something we take for granted as necessary elements for a game. On the other hand, we resist rules in our real lives. We don’t want to be tied down by restrictions, we defy strict structure in our lives and we are reluctant to enter long term relationships (whether in love or business) because we know the “rules” of relationships are not always comfortable.

I like rules. I like structure. I like order. I think that is why I was drawn to the Rabbinate and why I am drawn to Law. I actually like Law School. I enjoy the pursuit of appreciating and understand the complex system that we live in. In the film, the umpire is portrayed almost like a villain. But to me, he is the arbiter of a legal issue and I find comfort in knowing that there are rules. To me, he is the good guy, he is enforcing the rules that make the game meaningful. With no rules in games, there is no meaning. This resonated with me.

2 – And this is the real reason I was so moved by the film. The world I want to live in exists in this story. A world of Unity. The world I dream of where differences (like opposing teams in an important game), are not as important as similarities (humans, softball players, women, athletes, americans, etc etc etc). To them, the overall goals of living and loving each other trumped the differences they had as opponents. This film shows a world that I want to believe can exist.

A large number of my recent posts have touched on this very issue. I have been writing about Unity and Tolerance for a little while now. Working as the Rabbi of the Pacific Jewish Center, especially at the Shul on the Beach has only reinforced this strong yearning within me. I meet so many different people. I am convinced that the more we understand about one another, the more we can develop mutual respect and appreciation for one another. Certainly, looking to our similarities primarily and our differences secondarily is a good step in the right direction.

Just a few weeks ago I wrote about the photo of NBA players from Israel and Iran looking like the best of friends. I also wrote about learning from ants that we should help each other when we are in need. A while ago I wrote about using concepts of teamwork in our daily lives. I have spoke from the pulpit about Unity on Rosh Hashana, Yom Kippur and more recently, Chanukah.

This film just brought all the passion I have for unity and tolerance into such clear terms. I hope you enjoy it as much as I did. Let me know what you think in the comments.

(If embedding is not working try this link –> http://sharerp.com/75)

Hat-tip: My father.

A Moral Argument Against The Death Penalty

rabbifink — Fri, 20 Nov 2009 05:03:42 +0000

In the last few months there have been a few death penalty executions. Most notably the D.C. Sniper was executed on November 10, 2009. Since that time I have been thinking about the death penalty. I have discussed it on Twitter and in real life.

The last unit of our Criminal Law course was the Death Penalty. Professor Levenson asked for volunteers to argue for and against the death penal. Normally, I don’t jump at opportunities like this, I prefer to watch and observe other students try to make coherent arguments in front of their skeptical peers… Yet, my had shot up. It was almost involuntary. And I found myself on the side representing “against” the Death Penalty.

There were three of us and we split duties. I chose to make the moral argument against the death penalty. What follows was my basic argument.

In the USA, murder is against the law. One citizen may not take the life of another. This is a good law and is a basic law in any civilized country. The law is based upon our sense of morality. That means that the starting point when thinking about the morality of taking another’s life is, that it is immoral.

Of course there are exceptions. One who fears for his life may defend his life and is justified in killing his would-be murderer. This is called self-defense.

The application of this defense is very specific. There are other defenses or justifications to First Degree Murder but none will serve as a complete defense, they will only mitigate the charge or perhaps affect the sentencing. In other words, taking the life of another is never completely justified unless it to save one’s own life.

There should be no exception for the government. The State and Federal Governments have a duty to observe the same laws of morality the citizens must observe. The only moral excuse for killing is in self defense. Self defense can only be argued when the danger is imminent. Once a murderer is apprehended and incarcerated there is no self defense excuse. An incarcerated prisoner poses no imminent danger, thus the taking of his or her life is by definition immoral.

We are not bound to punish criminals by the same heinous acts they committed. The law of our country does not hold lex talionis. We don’t punish a criminal with the same act he criminally committed. We shudder at the thought of torturing a torturer or raping a rapist or battering a batterer, how could we be so callous about taking the life of a killer.

We have no moral ground to stand on if we take the life of a murderer. Taking the life of a killer simply turns us into murderers.

The Good Wife: Unorthodox, From a Rabbi / Law Student Perspective

rabbifink — Wed, 11 Nov 2009 17:33:59 +0000

The Good Wife is a new legal drama on CBS. The show is great. Usually the legal issues are portrayed correctly (at least from a law student’s perspective) and the character development of the main character has been superb.

This week’s episode revolved around a chasidic couple living in Chicago who were responsible to fix a fallen eruv wire, but since it fell on Shabbos they had to wait until Shabbos had ended and in the meantime a woman claims she fell over the wire and is suing for 1.2 million dollars in punitive damages. The title of the episode does not refer to the couple, rather it refers to their lawyer with an unorthodox approach to law.

Read on for my comments, critiques and a HUGE PLOT HOLE.

The defense is based on the 1st Amendment, freedom of speech, and claims that the couple has the right to practice their religion and a jury should decide if they are liable when they believe it would be wrong for them to fix the eruv wire. That defense fails when the wife (a recent baalas tshuva / one who returns to Orthodox Judaism later in life) is found to have been making phone calls to her father on Shabbos. If she calls her father on Shabbos she should also be able to fix the fallen wire. Ultimately, the defense shows that the entire slip and fall was concocted and the jury finds for the defense.

You can read a full synopsis of the episode here or, even better, you can watch the show (at least for the time being) on CBS.com.

The portrayal of the chasidic community, the laws of eruv and the relationship between the chasidic couple were pretty good. BUt there were a few things that they got wrong. It is so funny to me that any orthodox Jew would notice the nuances that are incorrect but the entire staff of the show does not see the mistakes. Ironically, last week’s episode of The Good Wife revolved around a witness who could not tell the difference between 2 black men. It seems that people from other ethnicities have a hard time seeing the nuances of other ethnicities. It is no different when Hollywood tries to portrays Jews. They simply don’t have the sensitivities to the finer details of orthodox Judaism, especially chasidic Judaism.

Things They Got Mostly Correct

The chasidic garb. She was wearing typical women’s dress. Subdued colors and very modest. He was in black and white with his hat nearby at all times.

Strollers. Everyone had strollers in the chasidic neighborhood.

Kosher markets. There was a kosher market within walking distance.

The shomrim guy. He looked like every non-chasidic Hatzalah (Jewish volunteer ambulance core) guy I know.

The intimacy between the couple. Most couples on the show celebrate victory with public hugs and kisses. The chasidic couple did not embrace in public, but their connection was displayed by touching each other’s hands secretly.

Mistakes

The chasidic guy never smiles. That is just not nice.

The chasidic guy has a “tchup”(coiffed hair), chasidic men have hair that is cut very short.

The chasidic guy has a trimmed beard, that is not common at all.

The chasidic guy has a RING! (I mean, come on, that’s an easy one!)

They say an eruv “creates a symbolic courtyard“, that’s not quite true, an eruv joins many domains into one common domain by surround the entire community with a wall. (But that is a hard one.)

A young chasidic boy has a leather kipa perched awkwardly on the back of his head.

Something That Bothered Me

The wife was a twice rehabbed drug loving party girl who found chasidic Judaism while incarcerated. Showing her revival as a chasidic Jewish woman bothered me slightly. It was if to say, one has to be so crazy to find chasidic Judaism attractive. Maybe I am nitpicking, but it bothered me just a little.

HUGE PLOT HOLE

When the plaintiff got injured it was Shabbos. She was asked why she was walking through this neighborhood and she said she was going to the market. She was asked why this market if there are four markets closer to her home and she said because this market is the kosher market where they sell gluten free products.

Do you see the problem? (answer below)

This is an inexcusable error. CBS, next time you want to do a show with chasidic or Orthodox Jewish characters and plot elements you can hire me. I will be your rabbinical consultant and make sure you get it right.

The Good Wife is a great show. One of the reasons it is great is not the attention to detail. A twitter buddy of mine also noticed a legal problem a few weeks ago. I guess when you are law student and a Rabbi you are going to notice the mistakes of Jewish culture and law.

(Plot hole answer: The kosher market is closed on Shabbos. She could never be walking to a kosher market on Shabbos!)

Read this blog post by @matthue about his experience as an extra for the episode!

Law School and Learning Ethics

rabbifink — Wed, 09 Sep 2009 19:16:09 +0000

Lawyers take the brunt of a lot of jokes and jabs questioning their ethics.

Believe it or not, Law Schools actually teach Ethical Lawyering and every student is required to pass that class prior to taking the bar.

Law blog Legal Geekery (recommended reading for law students) has an article criticizing the way Law Schools attempt to teach ethics to future lawyers.

In short, the argument goes (read here), by testing law students with proctors in the room, law students are not taught how to make ethical choices. Also, exams are taken on a software that locks the test taker’s computer while they take the exam. Instead, the schools should trust students the same way they will need to be trusted when they are in the work force with no proctor watching them. By watching every move the students make, Law Schools in effect, leave Law Students unprepared for the “real world”.

It got me thinking. Judaism is full of rules and regulations. The Torah is basically a really tough rule book. Does keeping the Torah’s laws help one become more ethical? Using the argument on Legal Geekery, the answer is no. Just because I act ethically because I fear retribution does not help me make ethical decisions when there is no fear of retribution.

But I disagree. I think practice makes perfect better. The Torah and its commandments are practice for the not-directly-related-Torah world when we do not have explicit rules and regulations to abide by. When we train our minds and bodies to act a certain way those thoughts and actions can become second nature. Second nature is pretty powerful. In fact, I recently mentioned in a Sermon that Rabbi Elyah Lopian held that second nature is stronger that our inborn tendencies. Our inborn tendencies are more easily changed than our bad or good habits. That is why good habits are so important. Rabbi Lopian explains that the commandments are tools for developing those good habits.

I see some strong parallels to Law School.

Law School is about developing good habits for Law Practice. Developing good habits for reading and briefing cases and developing good habits for analyzing facts and policies are what Law School is all about. Ethical Lawyering is the same. Developing good habits in ethics is good “practice” for “practice”. Doing your own work, solving problems on your own and using only permissible resources are good practice for becoming an ethical lawyer. Making honesty a habit will serve you well in practice. When ethics become second nature we can take away the training wheels and let you ride on your own with no proctor.

The proctor is training you. If you practice, you will make honesty second nature.

Murder In Jewish Law and United States Law

rabbifink — Fri, 04 Sep 2009 17:57:47 +0000

Yesterday we began learning about Homicide in our Criminal Law class at Loyola Law School. Our Criminal Law professor is world famous Laurie Levenson (she is in the news very often). She is an incredible teacher and a very successful practitioner. Studying Criminal Law in her class is a privilege. (Plus, she brings baked goodies for the class and sometimes stops at Schwartz’s Bakery to get some kosher goodies for the two Kosher observant Jews in the class. Pretty nice!)

After learning the building blocks of Criminal Law we began our unit in homicide.

One of the first homicide cases we read was a brutal murder of a 10 year old girl. The defendant offered no defense. He undeniably killed her in a brutal fashion, while intoxicated he took a knife to her, stabbing her about 60 times as he chased her around the house. The court decided that he could not get the death penalty.

Why? The court says that brutality of a murder is not a factor in considering whether a murder is in the 1st degree (incurring the death penalty). First degree murder requires “premeditation” and that is analyzed by looking at 3 factors. 1) planning 2) motive and 3) manner. In this case, the defendant did not plan, had no motive and the manner was not a methodical way of killing. It was random and unnecessary. The court sentenced him to life in prison and he escaped the death penalty.

Many of my co-students found this very difficult to swallow. Here we have a violent, brutal murder who will not get 1st degree murder. Some of my co-students wanted the murderer brutally killed in retribution.

In Jewish Law, murder and some other capital crimes are punishable by a death penalty. How does one “qualify” for the death penalty? A murderer must be warned by two witnesses that his offense will incur the death penalty. He must acknowledge their warning. Then he must commit the murder with 10 seconds. This approach to capital punishment reflects a basic tenet of Judaism.

Judaism is all about moral choices. Therefore, Judaism punishes the murderer who is making a clear, coherent choice. Only with fair warning and a true understanding of one’s actions are the murderer’s actions a clear indication of moral choice to commit murder.

In our Law School case, the fellow did not make a conscious choice. The 3 factors that demonstrate premeditation all demonstrate a choice by the murderer. Planning a murder shows that the murder truly understands what he is doing and is choosing his action of murder. Same for motive and manner. We need to see a conscious choice to take a life for murder to be in the 1st degree.

A drunk man who crazily kills for no reason is not a murderer in the 1st degree. He is a sociopath and must be locked up. But to take his life away via the death penalty requires more than just killing another. It requires a moral choice.

Judaism teaches us that our life is made up of little more than the moral choices we make. Our choices are who we are.

Choose wisely.

Elul Begins With A Warning | Anonymous Bloggers Take Note: Google Knows Your Every Move

rabbifink — Fri, 21 Aug 2009 21:32:05 +0000

A little while back I contributed a decent post to DovBear that generated an impressive response from legions of commenters on DovBear. The post was a comparison of anonymous vs. onymous blogging.

I argued that by blogging about important things anonymously, they are less effective and only perpetuate the near censorship of right-wing Orthodox Judaism. Some went on to call anonymous blogging cowardly.

In the discussion that ensued I conceded that quite possibly, better conversation can be had anonymously and I admitted that for a blog like DovBear, the unfortunate reality is that anonymity is the preferable choice.

Something left undiscussed was the reality that DovBear is not anonymous. Google, who hosts his blog, knows exactly who he is, where he lives and presumably, has access to all his email, searches and web history. Until a few days ago, one may have assumed that their information was safe with Google.

Not anymore.

A New York State Supreme Court ruled that Google was compelled to reveal the identity of a blogger using Google’s Blogger software. The blogger is question had posted defamatory comments about a fashion model that negatively affected her career. The model sued Google to uncloak the anonymous blogger and the court held that Google must comply.

Some may think I herald this as a victory for onymous blogging. Not so. If one is not comfortable blogging onymously his privacy must be respected. I urge people to choose to blog onymously, I am not on favor of mandating it and banning anonymous blogging.

The Bray of Fundie has an interesting post about his opinion on the ramifications of this ruling which is worth reading. Click here to go to to his excellent blog called HaMavdil.

(This is just one more reason to self host one’s blog. Technically the owner of a Blogger blog is Google and it is their information to share or withhold. A self hosted blog cannot be “outed” by Google as the blog owner is the rights holder to the information on the blog.)

But what of the courts decision? How does this affect the blogosphere? Some are calling it the “end of anonymous blogging”. That may very well be the case, but a new anonymous medium (twitter?) will crop up and still give voice to the anony-addicts out there. So really, the voice of the anonymous will not be quelled it will just need to move its home base.

The prospect of Google sharing our information is more worrisome than anything else. Everything we do is being recorded by Google. That can seem very scary.

Yet, when we reflect on this idea we can ask ourselves, is it so strange to us that our lives are being recorded by Google? Is it such a foreign concept that our every movement has meaning and does not disappear into the oblivion of infinite time and space?

Of course it is not. Our Rabbis teach us “V’chol ma’asecha b’sefer nichtavim”. All our actions are recorded in a “book”. Obviously, this cannot be a real, leather-bound volume published by Harper-Collins. I understsand this to mean that each of our actions has cosmic ramifications. Whenever we act, it affects us and the world is affected. None of our actions are meaningless that they would go “unrecorded”.

This is what Elul and the High Holidays are about. Realizing that our decisions and choices make real differences and hopefully adjusting our lives accordingly to make good and true choices.

The court decision in favor of the fashion model comes at a great time. We can take stock and learn a lesson about what it means for our lives to “recorded”; what it means to live life with the understanding that everything we do matters.

At some point we all will need to face our life’s choices. Let’s make the right choices.

A Jewish Black Woman's "Henry Gates" Situation

rabbifink — Sun, 02 Aug 2009 02:32:35 +0000

As a Law Student, there are things I find interesting that may not interest “clients” (non-Lawyers, hehe). The following article interests me and will probably interest any lawyer or law student, anyone Jewish, or anyone that has been following the Gates Saga.

I invite you to contribute your opinion in the comments.

The article originally appeared in this week’s Jewish Press as an OP-ED. The writer is Nathan Lewin (read more about him here).

WHAT IF GATES WERE AN UNRENOWNED JEWISH BLACK WOMAN?

Nathan Lewin

Posted Jul 29 2009

Soon after Cambridge police arrested and handcuffed Harvard professor Henry Louis Gates Jr. on a disorderly conduct charge, they realized the black man they wanted to prosecute was a renowned academic. As a result, he was released and the charges against him were dropped.

The ensuing public debate – in which Cambridge authorities now try to justify arresting a man because he refused to comply in his own home with police directions and deny that race had any influence on how the police reacted – suggests that if an ordinary black homeowner, rather than a Harvard professor, had been arrested under these circumstances, the criminal charges would not have been dropped so readily.

Consider the pending case of Rivka – a black, very dark-skinned, extremely devout Orthodox Jewish woman. Rivka is employed in New York, spends Shabbat in Washington, and her work frequently takes her on extended trips overseas. Being single and in her mid-fifties, she rented a 3-bedroom apartment on the West Side of Manhattan, and advertised on Craigslist for female roommates willing to accept short subleases. All applicants were informed by Rivka that the apartment was strictly kosher. A special page prescribing the kashrut rules was added to the lease that each roommate signed.

The rules were followed by a series of women Rivka accepted as roommates. In July 2007, a white blond-haired girl named Brooke answered Rivka’s ad and signed a five-month lease with the kashrut provisions. Brooke promptly violated the kashrut rules and admitted, in sworn testimony, that she brought nonkosher food into the apartment in knowing violation of her signed agreement. Rivka told Brooke she would have to leave.

Having e-mailed Brooke that she had arranged, at her – Rivka’s – expense, for a hotel room where Brooke could stay while she was looking for other accommodations, and believing that Brooke had agreed to have her belongings transported to the other location, Rivka began moving Brooke’s clothing to the hotel. Brooke arrived at the apartment unexpectedly and called the local precinct, reporting, “My roommate is currently stealing stuff out of my room.”

When Rivka returned after depositing Brooke’s belongings in the reserved hotel room, she found two policemen at the apartment with Brooke. The senior police officer (who is white), testified that Rivka showed them the lease and the e-mail she had sent to Brooke, and explained that she had moved Brooke’s belongings to the nearby hotel because she had an agreement with Brooke to do so. Rivka insisted to the officers that she wanted Brooke out of the apartment. The officers testified that Rivka interrupted her conversation with them to spend ten minutes in prayer.

Rivka then left the officers and retreated to her bedroom and locked her door. The officers demanded that she come out. On her cell phone, Rivka called a friend from the Georgetown Synagogue in Washington who had a law degree but was not in private practice. He told her to ask the officers for a warrant and for their precincts and badge numbers. The white policeman said in his testimony that he “did not recall” whether he gave his precinct and badge number.

When Rivka did not emerge voluntarily from her bedroom, the sergeant called the Emergency Services Unit – the police department’s riot squad. They came in full force, with more than one dozen policemen. They broke down the door to Rivka’s bedroom, dragged her into the hall and up against the wall at gunpoint, handcuffed her, and then took her downstairs to a waiting ambulance.

The ambulance drove to a nearby hospital. One of the officers tried to have her committed to the psychiatric unit. After an examination, the hospital said there was no basis to admit her. The police then took Rivka to the police precinct, where she was permitted one phone call. She called a person she had befriended while regularly attending Shabbat services at the Georgetown Synagogue, but the arresting police officer hung up the telephone in the middle of Rivka’s call.

Rivka was then taken to another hospital, where she was handcuffed to a bed. Next morning, she was returned to the precinct. The rabbi at the New York synagogue she attends on weekdays heard of her plight and brought a kosher meal to the precinct – the first meal Rivka had since her arrest the day before.

Rivka was charged with “Obstruction of Governmental Administration in the Second Degree” and with “Unlawful Eviction.” The New York D.A.’s office refused to dismiss the charges even after all the facts were presented. The young prosecutor first demanded that Rivka plead guilty and perform community service and ultimately was willing to accept an unconditional “Adjournment in Contemplation of Dismissal.” Rivka refused to accept any terms other than outright dismissal because she insisted she had done nothing wrong.

The case went to a nonjury trial before a (white) judge who was a former prosecutor. He excluded much defense testimony as irrelevant and hearsay and rejected out of hand Rivka’s right to remain in her own bedroom after her discussion with the police. At the end of the trial, he found Rivka guilty on both counts and fined her $500. Rivka is appealing.

Would the police have broken the bedroom door of a white gentile and charged her with crimes after being called to a dispute between her and a roommate? Is this another instance – as the Gates arrest is said to be – of injustice against blacks, aggravated by Rivka’s Jewish identity?

Rivka is suing New York City, the policemen, and Brooke in federal court. The docket number of her case is 08 Civ. 10065. I am her lawyer.

Nathan Lewin is a Washington attorney who has represented Jewish communities in litigation in federal courts.

What Is The Appropriate Reaction?

rabbifink — Tue, 16 Jun 2009 15:02:18 +0000

This post has been cross-posted to DovBear. – more discussion there.

In addition to my work as the Rabbi at Pacific Jewish Center at the Shul on the Beach I am also a Law Student at Loyola Law School in Los Angeles. I am part of the evening program and completed my first year of evening classes in May.

In December I was subjected to mid-terms in each of my courses. Many Law School exams are long fact patterns that require the student to analyze the facts and apply all the law that is relevant to the facts and then argue why the law should or should not apply to those facts. Usually these fact patterns are fiction and these essays are typically 3 – 4 hours in duration.

My torts professor gave us a very interesting fact pattern. The basics of the case were, two young boys named Israel and Jacob enter an elevator on their way to school. Along the way the elevator malfunctions and the boys are suspended between the 10th and 11th floor. The doors malfunction as well and the doors are opened. The younger boy, Jacob is 5 and he tries to jump from the stuck elevator to the 10th floor below. Jacob jumps and does not “stick the landing“. Unfortunately, he stumbles off the 10th floor and plummeted 10 stories beneath the elevator down the shaft to his death. Israel is eventually rescued.

There were many more legally operative facts in the fact pattern and our professor wanted us to analyze the claims against the building landlord, owner and elevator maintenance company.

It was a pretty shocking case for all of us. When we returned to school after the break our professor told us that the fact pattern was basically a true story with some of the facts changed to make a clearer essay. Immediately I “googled” “Jacob Israel Elevator”. I found the original NY Times article with the tragic story.

Yesterday the Times had another article on the ongoing litigation. Apparently, the defense wants young Israel, who is 10 and traumatized to testify. This is horrible as any memories of the tragedy could alter his psychological well being tremendously. The case is being litigated as you read this.

I told this entire saga to two people I know. They are both very caring and sensitive people. They both had the same reaction and that reaction is what prompted this post.

When I told the story over, both people had serious looks on their faces and clearly empathized with the poor child.

Then I told them, by the way, the little boys were Chasidish children from Williamsburg.

They both had the same second reaction. Their jaws dropped and they exclaimed Oy! That’s terrible! A much harsher reaction reaction than before they knew the boys’ ethnicity.

At first I was disturbed. Do we care more about some poor Chasidish kids from Williamsburg than anyone else? Is this tragedy worse to us because they are Jewish?

Is this a good attitude? Could this bother non-Jews and provoke anti-semitism?

Or, perhaps it is normal for us to care more about our Jewish brethren. Maybe, we should feel more compassion for our fellow Jews. After all, it is a rule of Jewish law that we are responsible for one another.

This has been gnawing at me for a little while now. Should we care more about a Jewish tragedy than a non-Jewish tragedy?

Even if we are allowed to care more about a Jewish tragedy should we try and mask our feelings to be more politically correct?

Aren’t we outraged when non-Jews do not care about Jewish tragedy as much as non-Jewish tragedy?

Too Many Questions

rabbifink — Thu, 28 May 2009 00:27:07 +0000

I read a really interesting column this week.

Whenever I find a convergence of ideas between the Legal field and Torah I get excited.

This time I found a divergence. Not quite as exciting, but very interesting.

The NY Times followed up on a study conducted a few years ago by a 2nd year Georgetown Law School Student.

The study was groundbreaking. It focused on the amount of questions from the Judges to lawyers and its effect on the outcome of cases.

It turns out that there is almost a direct correlation between the number of questions the lawyers are asked and the decision of the Supreme Court. Over a five year period , the party that was asked more questions lost 86% of the time.

That is a lot. Some of it can be attributed to the Justices attempting to find holes in the weaker arguments. Most cases at the Supreme Court level are very gray areas. The side that is weaker will be exposed by more questions, thus the Judges use the questions to poke holes in the less compelling argument.

On the other hand, getting the Judges to ask your opponent more questions will help you win as well.

One reason for this is that the Judges, by asking questions, are attempting to show their colleagues the flaws in the arguments.

In fact a new, more comprehensive study found:

“The more attention justices pay to a side,” said Timothy R. Johnson, who teaches law and political science at the University of Minnesota and is one of the new study’s authors, “the more likely that side is to lose.”

This week is the Jewish holiday of Shavuos. A day where Jews around the world celebrate the giving of the Torah to the world. To this very day , Torah is studied in depth. Its ideas are discussed and argued.

The greatest arena for this study is the Talmud. The Talmud is a collection of legal analysis of Jewish Law. It is also a lot more thant that, but the purpose of the book is to develop a high level understanding of Jewish Law.

I find it very interesting that the Talmud asks tons on questions. It is not a law book. It is a book of questions. Invariably the side of the law with more questions will help the Talmud get closer to the truth. Questions do not indicate weakness. Good questions provoke better answers and better understanding. The side that has better answers emerges as the true path.

This holds true for all of Judaism. We encourage questions. We provoke discussion. We want to get closer to truth. The path to the truth is paved with questions.

When in the Supreme Court, questions prove fatal. In Judaism they are a necessary component to finding the true path.

On this blog I have an “Ask the Rabbi” Section. I encourage questions. If you have any, just click. I will try to answer as quickly and effectively as possible.

Recess + Litigation = Big Problem

rabbifink — Tue, 27 Jan 2009 16:23:08 +0000

“Oh I can be quite litigious” - Cosmo Kramer

As Law Student I read about 25-30 cases per week. All of the cases I read this year are lawsuits. Whether they deal with torts and damages, contract disputes or property issues “A” is always suing “B”. The lawsuit is the basis of the American Legal system. It allows any victim of a social or financial injustice to seek and recover damages for harms suffered. There is a downside however.

In Broward County Florida there is no running during recess. The county is ever fearful of increased law suits aiming to recover damages for injuries sustained by children during recess. 189 suits were settled in the past 5 years in Broward County. So now during recess children can play with their PSP or Nintendo DS. No one gets hurt, no on gets sued. Is this a good thing? (no, not for the lawyers…for them it is good!)

Obesity is one of the greatest preventable health risks facing our society today. Now children cannot even get cardio exercises during recess! I don’t think this is going to help too much. There is another social problem that arises from restricting children’s movement and not allowing them to get hurt. When children are so protected that they never feel any pain they are not prepared for the inevtiable disappointments and trials of life. Part of growing up is dealing with pain and disappointment on a child’s scale. Then as we mature we can use our experiences from dealing with problems as a child to help us as adults. Taking away opportunities for pain is actually taking away opportunities for growth.

I propose a Constitutional Right to Recess. Barring lawsuits except in cases of gross negligence or recklessness by the districts. We need our children to be strong and able to deal with adversity. Bubble wrapping them will cause more harm than good.

Winners and Losers | A New Yorker Cartoon (and I get it, and it is funny!)

rabbifink — Thu, 15 Jan 2009 21:13:14 +0000

Thanks to The Seinfeld Episode: The Cartoon whenever I see The New Yorker magazine I check to see if the cartoons are actually funny. One of my professors mentioned a New Yorker article last night about inaugural addresses so I went to check it out online. This cartoon was inset in a completely different article I was reading (which I did not “get”) and I just had to blog about the cartoon (which i do “get”)!

Don’t we all miss the days when a winner won and a loser lost?

Now it seems there is no winning and no losing. We are almost more concerned that the losers not feel bad than the winners feel good. When my younger brother played in Little League as a 6 year old the rule was “no keeping score allowed” but he always knew who won anyway… I guess they think that means that we are all winners.

I think that it may mean that we are all losers!

Seriously, rewarding success is very important and we need to balance that with making certain that people don’t get too down about their lack of success. One place that has preserved this quite effectively is Loyola Law School. We are graded on a hard curve which results in a handful of “A” students, a few more “A-” students and mostly “B+” – “C” students. Only the best get the “A”. But the rest can get that really nice trophy in the cartoon…