D’var Torah for October 8, 2021

This week’s parashah is Noach, which is ironically fitting, because this shabbat is also being observed as Death Penalty Sabbath by Christian and Jewish congregations in North Carolina.  

Why ironic?  I am not going to discuss the familiar stories of the flood, the rainbow, the tower of Babel.  Rather, I am struck by these two verses that appear in Chapter 9:

But for your own life-blood I will require a reckoning;

I will require it of every beast;

of man, too, will I require a reckoning for human life,

of every man for that of his fellow man!

And then:

שֹׁפֵךְ֙ דַּ֣ם הָֽאָדָ֔ם בָּֽאָדָ֖ם דָּמ֣וֹ יִשָּׁפֵ֑ךְ

כִּ֚י בְּצֶ֣לֶם אֱלֹהִ֔ים עָשָׂ֖ה אֶת־הָאָדָֽם׃

Whosoever sheds the blood of man,

By man shall his blood be shed;

For in His image 

Did God make man.

Do these verses, presaging the lex talionis, the “eye for an eye, life for a life” of Exodus, Leviticus, and Deuteronomy, require capital punishment?  The sages apparently believed that on their face, they did, although one commentator also interpreted them as forbidding embarrassing a person in public, causing them to blush or to turn pale as the blood rushes to or from the face.  

Noach was a “righteous man, blameless in his age.”  And yet he did not argue with God when the earth was to be destroyed, the innocent perishing in the flood along with the guilty.   In fact, Noach is not recorded as having said a word; he simply did as he was commanded.

By the time of Abraham, introduced in next week’s parashah, the ethical boldness of the righteous had increased.  No longer a good soldier like Noach, always obeying without question, Abraham humbly yet audaciously protests when God proposes to smite the cities of S’dom and ‘Amorah (Sodom and Gomorrah).  “Far be it from you to do such a thing, to bring death upon the innocent as well as the guilty, so that innocent and guilty fare alike!  Far be it from you!  Shall not the Judge of all the earth deal justly?”  (The Hebrew has that wonderful play on two words derived from the same root, juxtaposing shofet, judge, and mishpat, judgment or justice:  “hashofet kol ha-aretz lo yaaseh mishpat?”)

And God relents, to a point.  

So the Torah disapproves of the execution of the innocent.  Which brings me to my point.  

Under our system of laws, are the innocent at risk of execution?  What does our Jewish tradition have to say about that?

I have represented men on North Carolina’s Death Row, men who are supposed to be the worst of the worse.  My experience runs the gamut.  On a cold night in January 1995, I watched in the execution chamber as Kermit Smith, a man I had represented for 12 ½ years, was put to death by lethal injection.  Kermit was not innocent.  He had in fact taken another life; but he was by no means the worst of the worse.  Kermit was mentally ill, was poorly represented at trial, was unfairly tried and convicted, and lost his life arbitrarily, after two federal courts ruled that he was entitled to a new trial, but another ruled by a slim majority that he was not, and the Supreme Court denied review.  On another day, with different judges on the bench, he might have lived.  Killing him made no one safer.  

On the other hand, I was present on April 8, 2008, to welcome Glen Edward Chapman as he literally stepped out of Death Row onto a Raleigh street.  Edward had been convicted by a jury of two murders in Catawba County.  The jury convicted him because the evidence seemed, if not overwhelming, at least adequate.  But the jury did not know some important facts:  Facts such as a detailed confession to one of the crimes by another man, a confession suppressed by the police.  

And in the other supposed murder, the prosecution had convinced the jury that Edward was the last person seen with the victim, walking with her in the direction of the house where her body was found two days later, and must therefore have been her killer.  But the police knew, but concealed from the jury, that several witnesses had later seen her alive several times the next day, and in the evening of that day with a man who was threatening to kill her.  And there was much more.  Chapman’s lawyers were alcoholics who had been disciplined by the bar and who did not lift a finger to investigate the possibility that their client was innocent.  He was exonerated only after years of litigation uncovered those facts, and after he had spent over 14 years behind bars, mostly on Death Row, for crimes he did not commit.  

The point is that capital punishment is arbitrary; it is inflicted mainly upon the poor and persons of color, represented by indifferent or unskilled lawyers, without a thorough investigation of their guilt or innocence.  

In North Carolina alone, twelve innocent men have been exonerated after having been found guilty beyond a reasonable doubt by jurors, and after their convictions were affirmed on appeal by judges constrained by a system predisposed to seek finality at the expense of justice, a system where innocence is largely irrelevant.  Four of the twelve, including my client Edward, spent more than a decade on Death Row.  Ten of the twelve were Black, and an eleventh was Latino.  

In other states, the pattern is similar.  A shocking number of Death Row inmates have been exonerated – each having been found guilty beyond a reasonable doubt by a jury – because they were lucky enough to find someone interested in taking another look at their case.  Many were freed not because of the legal system, but despite it.  In some cases, journalists or even film-makers became interested and uncovered new evidence.  In others, new lawyers volunteered to accept the thankless burden of trying to save an innocent person’s life.  

And there is substantial evidence that in America, at least twenty innocent people were not so lucky, and were executed.  

Others, such as the young man I represented here in Asheville a few years ago, escaped a death sentence but spent over a decade in prison before being exonerated by DNA evidence that the prosecution and police had suppressed, as well as the confession by the real killer, which the detectives and DA swept under the rug.  

Luck determines whose convictions get overturned.  

No legislative reforms can fix these problems.  You can’t legislate honesty.  

So what does Judaism have to say about that?  

Just as the rabbis interpreted the injunction against boiling a kid in its mother’s milk to mean much more than the literal words, thus expanding the text to the laws of kashrut we are familiar with today, in the case of capital punishment, the rabbis restricted its application to the vanishing point.  

In fact, the Torah itself begins that process of restriction.  We learn in Deuteronomy (17:6-7) that a person may be executed only upon the testimony of two or more witnesses to the crime, and that those witnesses must be the ones to carry it out.

The rabbis seized upon the Torah’s requirement for witnesses to erect formidable barriers to the imposition of the death penalty.  They include these rulings:

• The two or more eyewitnesses to the offense must testify.
• The witnesses must have been able to see each other and the offense from the same vantage point.
• Both witnesses must warn the accused that he is about to commit a capital offense (after all, he may not know that his conduct is illegal or that he would be punished so severely).
• The culprit must respond, “Even so, I am going to do it.” (Because maybe he did not hear the warning.)
• The accused must commit the act within three seconds of hearing the warning (otherwise he might have forgotten the law and could not be held responsible).
• The witnesses must not be related to each other or to the culprit.
• Upon discovery of any material discrepancy in the testimony of the witnesses, the charge must be dismissed.  
• Circumstantial evidence is prohibited.
• There must be at least one judge on the court who votes to acquit him (for otherwise the court might be prejudiced against him).
• The appointment of “hard-hearted men” as jurors in capital cases is prohibited.
• Even upon conviction, the execution must be stayed if any witness comes forward with exculpatory evidence, including the condemned man himself declaring that he could prove his innocence. 

Obviously, many of these requirements are implausible extensions of the Torah principle of two witnesses, and the rabbis certainly knew that.  But they had decided to outlaw the death penalty in spite of the text of the Torah, and they decided to use court procedures as the method.  

Put another way, they interpreted the death penalty out of existence.  

And we are the better for it.  Would that our modern laws were as exacting.  

Shabbat shalom.