The Credible, the True, and the Inconceivable: Ashraf Tahimer v. the State of Israel

In May 2016, Mirwat Abu Jaleel, an Arab-Israeli woman, was horrifically stabbed to death eleven times in her bedroom in her home in Shefar’am. Her oldest son, Nasrat, told the police that he woke up hearing a struggle. As he exited his room, he saw his neighbor, Ashraf Tahimer, running toward him in the hallway, holding a knife in one hand and making a fist in the other. Ashraf hit Nasrat in the mouth, breaking one of his teeth, and fled the home through a window downstairs. Mirwat’s younger children told the police that they saw Ashraf enter the home through the same downstairs window, take a knife from a kitchen drawer, remove his shoes, and ascend the stairs to Mirwat’s bedroom. The police did not find Ashraf at home–he had fled–but the next day he surrendered. At his interrogation, Ashraf denied having had anything to do with the murder. Nevertheless, when the police searched the crime scene, they found Ashraf’s shoes in the kitchen. The court did not believe Ashraf but found the prosecution witnesses, Nasrat and the other kids, credible, and convicted him of murder.

Today I attended the oral argument in Ashraf’s appeal at the Israel Supreme Court. My long-time friend and colleague Hagit Lernau, a longtime senior veteran of the National Public Defender’s office and now a criminology professor at Haifa University, argued the case for the defense (she’s pictured above in her robe, getting ready for court) and so I tagged along to help her prepare and see the argument. The hearing proved to be a disquieting inquiry into questions of truth, credibility, biases, and heuristics. It’s as gripping and horrifying as a classic detective novel, and offers important lessons to anyone investigating and adjudicating crime.

Ashraf does not make for a particularly cuddly appellant. He has a long history of petty crime and heavy drug use. He is also quite impulsive and found it difficult to sit quietly during the hearing. He was also disliked in the neighborhood because of his lifestyle. But, as he repeatedly told the police and the factfinding court, he had no reason to kill Mirwat. They had a good neighborly relationship and, while she did not approve of his lifestyle, she was always kind and welcoming to his son. Indeed, he had serious disincentives: killing Mirwat would create a deadly conflict between his family and the Abu Jaleels, putting his children in danger of retaliation (indeed, following Ashraf’s arrest the Tahimer home was burned to the ground, and the entire family had to flee the town.)

By contrast, Mirwat’s family had ample motive to murder her. Mirwat was divorced and her ex-husband, Ibrahim, found a younger woman. Mirwat’s independent, open life was a threat to the patriarchal family structure. Arab Israeli women are overrepresented as murder victims, and divorcées are at a particular risk. Most murders of Arab women are never solved; out of those solved, most are perpetrated by a partner or other family member and related either to family honor or to retaliation for some offense committed by a man. In 36% of cases, the murder is witnessed by at least one child or another family member.

Given these statistics, which are well known to the police as part of the depressing picture of violent crime among Arabi Israelis, you’d think the investigative team would at least question the Abu Jaleels’ version. But they accepted wholesale the testimony of Mirwat’s family members, all of whom denied having had anything to do with her murder. They claimed that Mirwat and Ibrahim were on the path to reconciliation, and had met with a third party (some said a sheikh; some said a lawyer; some said three weeks prior; some said three days prior) to sort out their differences. The police never sought to confirm or refute this story. Ibrahim himself, who would’ve normally been the prime suspect, was conveniently out of the country when the murder took place (I’m told this is not an uncommon pattern in family honor killings–there’s already somewhat of a playbook for these crimes.) Nasrat, Mirwat’s son, even said that he could provide a motive for Ashraf to commit the murder: a few days before murder, Nasrat overheard Ashraf promise his son an Xbox if he improved his grades. There was an Xbox in the Abu Jaleel’s home–in Mirwat’s bedroom, in fact–and Nasrat testified that after he found his mother’s lifeless body in a pool of blood, he located the Xbox disconnected on the floor, put it back in place and reconnected the wires. This version of events was utterly refuted by forensics, who found that the Xbox had not been disconnected, reconnected, or moved at all recently. Even this considerable contradiction–suggesting a fabricated motive for the suspect–did not lead the police to doubt the Abu Jaleels or look elsewhere for suspects. They were focused on Ashraf as the one and only suspect.

The children testified that Ashraf had climbed up to their home through one of the windows. But the crime scene photos clearly show that the electric shutters are lowered all the way in all windows, and the children said that the family kept them shut (after being confronted with this problem, one of the children pointed out that the one shutter would sometimes be open to let in fresh air.) The act of climbing up the wall requires some dexterity. During the investigation, a police officer secured in a harness attempted to climb to the window and into the house, and while he was not initially successful, he did eventually manage to get in. However, on his way out he broke a fragile piece of the window, raising questions as to whether it would be possible for Ashraf to enter/exit and leave the window intact. But on top of all this, it turns out that Ashraf suffers from a shoulder prone to dislocation. An orthopedic expert testified at trial; his uncontested expert testimony was that Ashraf’s shoulder would have likely been dislocated by the effort (he gave that a 90% chance of happening) and, in fact, was dislocated later at his jail cell by the mere act of raising it.

At this point, you might wonder whether the entire debacle is unnecessary: surely, in the course of climbing into the house, walking to the kitchen, pulling out a drawer to get a knife, walking to the bedroom, and having a violent struggle with the victim involving copious blood, the perpetrator must have left forensic residue behind! The answer is: none was found. The forensic team lifted 27 fingerprints from the home, emphasizing the course that Ashraf allegedly took. 26 did not match his and one remained unidentified. No DNA of his was uncovered–no skin, no blood–and no blood smears were visible on the way from the victim’s body to the window. All prosecution witnesses attested that Ashraf was not wearing gloves at any point during the event. At the factfinding court, he prosecution argued (successfully, apparently) that Ashraf must have smeared away his own fingerprints, as well as the blood, when he climbed back out of the window, or that his criminal experience prompted him to clean up his own fingerprints as he went along. Such a course of action, for someone under drug influence and with a weak shoulder, defies credibility: did he hold himself up with the bad shoulder and wet-wipe his own fingerprints off as he went along?

We all know the legal rule that the absence of evidence is not evidence of absence. But scientifically speaking, we can sometimes learn from absence of evidence–particularly when the probability of finding the evidence would have been high. Prof. Lernau, who on top of being a terrific litigator has a curious scientific mind, wondered: how likely is it for someone to engage so thoroughly, in such a tactile manner, with a crime scene, and not leave a trace? There is apparently considerable variation among people in propensity for leaving fingerprints (it has to do with grease and moisture in the skin, etc.) and surfaces vary in how well they absorb and retain fingerprints. With the assistance of Dr. Naomi Kaplan-Damari, a forensic criminologist at Hebrew University, the defense team ran a little experiment. They instructed fifty staff members to touch similar surfaces to the ones at the crime scene. Even for the people less prone to leaving fingerprints, the odds of not leaving a trace were extremely small.

There was, however, one crucial forensic finding: a human tooth located at the top of the bed, where Mirwat had lain her head before she was attacked. The tooth did not belong to Ashraf; it belonged to Nasrat, Mirwat’s 17-year-old son. As you’ll recall, Nasrat told the police that Ashraf punched him in the hallway when fleeing the scene and dislodged the tooth. If so, how did the tooth make it to the bed? Nasrat claimed that he had reconnected the Xbox in his mother’s bedroom, but that proved false. He did, according to his own testimony, attempt to revive his mother alongside the other family members, but the body was at the entrance to the bedroom, about 2.5 meters (8 feet) from the bed. The tooth would have had to migrate from the hallway to the bed on its own, or it would have had to be dislodged during the resuscitation attempt (but not on the bed). Or, which would be a more plausible explanation, it would have broken off in the first place not as a consequence of a hallway fight, but during a struggle on the bed with the victim.

But let’s assume, again, that Ashraf escaped from the house the same way he got in–through the window, with no shoes on, and miraculously without smearing any of the copious blood from the crime scene or leaving any fingerprints or footprints on his way out. How did he get home? There are two paths leading from the Abu Jaleel home to the Tahimer home: one is short and leads to the front door, and the other takes a roundabout way and ends in the rear steps of the Tahimer house. The claim is that Ashraf snuck out that way because, as it happens, a nearby home has a camera mounted on the roof that continuously films that allley. For many hours before and after the supposed commission of the crime, only one figure is visible on camera. It is the blurred image of a man holding a knife. The man cannot be identified, and the police assumed it was Ashraf making his escape. This fit testimony from a neighbor, Omri Nadaf, who testified that he saw Ashraf heading to the alley.

Was it Ashraf? Apparently not–according to the prosecution’s own witnesses. Nasrat’s uncle, Wahel, was with his parents, locked in, during the murder. According to Wahel’s testimony, Nasrat, who discovered the murder, ran over and screamed that Ashraf had murdered his mom, and Wahel immediately grabbed a knife, ran out of the front door, and made it to the Tahimer home using the back alley. On cross-examination, Wahel agreed with the defense that he walked that path during the relevant time. As mentioned above, there is only one figure who walked there with a knife. It therefore must have been Wahel. But this would mean that the neighbor’s testimony about seeing Ashraf was wrong (mistaken or deceitful.) If the man in the alley was Wahel, this would also explain the inconceivable timeline by which Ashraf would’ve left the home, managed to get out of the window, make it to the alley, and somehow clean himself enough to appear nondescript on camera within two minutes.

It’s worth reminding U.S. readers that Israel has no jury system. Verdicts are given by professional judges and, in serious offenses, by a panel of three judges. The panel that convicted Ashraf wrote an extensive decision, in which they flat-out rejected the forensic and objective crime scene data and relied primarily on their credibility observations: namely, they believed the family and disbelieved Ashraf, and that was that. As we all know, appellate courts cannot substitute their own impressions of credibility for those of the factfinding forum, which is what the Supreme Court judges reminded Hagit at the hearing. A recent high-profile Israeli case, however, highlights the fact that credibility findings cannot stand when they contradict objective facts. The judges kept asking the same question again and again: how can the appellate court overcome the fact that four witnesses–including children–were all found credible? Hagit kept replying: then what do we do about the impossibility of climbing the window, the lack of forensic evidence, the location of Nasrat’s tooth, and Ashraf’s invisible escape back home?

The hearing highlighted some of the inherent tensions in evidence assessment, which apply to professional judges as well as to juries and laypeople. The first one had to do with the appropriate weight, if any, to allocate to the absence of evidence. The prosecution dismissed Dr. Kaplan’s probabilistic demonstration as “amateur fingerprint science.” This was a mischaracterization: it was an exercise in statistical probability. Of course, it is not a cardinal rule that any case lacking forensics must end in an acquittal; however, in situations where the expectation of forensics is extremely high, negative inferences from their absence are not only possible but logical. It shouldn’t take a huge taxonomical effort for an appellate court to separate their deference to credibility findings from their completely legitimate authority to deduce

While the judges listened attentively to the defense’s oral argument, some of them seemed extremely resistant to the idea of reversing the verdict, and it was obvious that the source of the resistance was the credibility issue. Two of the judges, at different times, said that they needed something more–something positive–to overcome the lower court’s positive impression of the witnesses. The barrier of overcoming the credibility findings sometimes threatened materially exculpatory evidence: at least one of the judges was willing to suspend disbelief about Nasrat’s tooth’s supposed path from the hallway to the bed because the alternative was just too hard to consider in light of the credibility issue.

This all boils down to a central defense strategy concern, which I discuss extensively with my criminal procedure students every year. When, as in this case, the defense argues that the crime was committed by a different perpetrator, the jury is confronted not with the basic challenge of criminal burden of proof–assessing the probability of one story by its own strengths and witnesses–but with a comparison between two different stories. Jury calibration of burden-of-proof is notoriously tentative as it is, and the natural and understandable tendency of a layperson confronted with two different versions of the same event is to compare them to each other and pick the more likely one–even if the comparative likelihoods are 60-40 and the likelihood of the prosecution’s story falls far short of the normal standard of conviction (90-10? 95-5? depends on who you ask.) The hearing made it plainly obvious that this human tendency to compare stories and disengage from the legally required calibration could not be easily overcome even by erudite, experienced professional judges. “But how do you expect us to buy,” they kept asking, “that an entire family conspired to frame Ashraf? Including four children, some of them little? And over the course of such a lengthy period of time? When in this version the victim’s own son is supposedly the killer, or one of the killers?”

The legally correct answer to this question is, of course, that the court does not have to “buy” this alternative story with certainty, nor does it have to find it more probable than the alternative (a man who cannot climb windows climbs and enters an apartment through a closed window, commits a heinous crime, flees an extremely tactile scene leaving not a shred of forensic residue behind him, and somehow ends up at home avoiding detection by camera on the only path he could’ve taken.) All the court has to agree to is that there is a five-percent, or ten-percent, chance that events could have unfolded according to the alternative story to acquit. That’s how reasonable doubt is supposed to work.

Thing is, the court’s resistance to the alternative story is understandable. It’s the stumbling block I kept hitting when we practiced oral argument the night before the hearing. To believe even a shred of the alternative story, one has to ascribe the Abu Jaleel family a level of sophistication befitting the villains in a highly contrived Agatha Christie novel. The family would’ve had to decide ahead of time not only on the honor killing, but also on the alibi for Ibrahim, the father (who would have to be out of the country). They would have to expect 17-year-old Nasrat to be a perpetrator, or at least a seriously involved accomplice, in the murder of his own mother. They would have to decide to frame Ashraf ahead of time. Wahel, who gave Ashraf a large quantity of drugs the day before (he testified about it) would have done so intentionally, so as to dull Ashraf’s senses and make him a convenient target. The family members would have to rehearse the young children extensively in the Ashraf story. After the chaos and destructive energy involved in the murder, as they supposedly ran over to the Tahimer home to take revenge, someone (Nasrat? Wahel? Someone else?) would need to have the presence of mind to take Ashraf’s shoes and place them in the kitchen. Nasrat would have to change his version of his encounter with Ashraf to fit the loss of his tooth. The neighbor, Omri Nadaf, would have to be contacted to provide a fictitious account of Ashraf’s escape. Everyone, including the kids, would have to stick to their version of events over the course of years.

This is a high cognitive hurdle, but two important factors can help overcome it. The first is what Holmes says to Watson in Conan Doyle’s The Sign of Four: “How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?” The family conspiracy, while improbable, is possible; Ashraf as a perpetrator is impossible. The only possible conclusion is that the improbable-but-not-impossible event is what actually took place.

The second factor makes the improbable less improbable: there are well-known sociological realities about the modus operandi of family honor killings. Police officers, attorneys, and judges who investigate and adjudicate these cases are fairly familiar with these cases. Unfortunately, honor killings of Arab-Israeli women are extremely common. In 70% of the cases, family members are the killers; the remaining 30% usually involve some inter-family conflict, in which the woman’s murder is an act of revenge upon a transgression by the husband. In 36% of the cases, at least one child, and often other family members, witness the crime. There are known cases, including the one I reviewed in this article, in which adolescents and teenagers (more often sons, but sometimes daughters) kill their own mothers, and sometimes their younger siblings, by family command, fearful for their own lives if they refuse. In highly patriarchal families, a command from a father or uncle to tell a fictitious story is law for the kids. It is easy to manipulate young children into lying about an event, especially if they (hopefully) did not witness it in person. This was a highly patriarchal family, involving traditional polygamy patterns (Mirwat divorced Ibrahim after he added a younger woman to the family.)

When a judge says, as in this case, “I can’t believe that children could be complicit in this kind of murder-and-framing-conspiracy,” he or she are most likely thinking about the improbability of something so horrifying happening in their own family. Indeed, educated judges from affluent, successful families–most of the time Jewish-Israeli families–would find this horrid scenario very far removed from their personal reality and their surrounding social milieu. It’s important to remember that not every Supreme Court judge is appointed after a long judicial career in lower courts. Some of them are former academics or commercial litigators, who would not have encountered the catastrophe of misogynistic, patriarchal violent crime in Arab communities anywhere in their social or professional circles. And yet, entire cities and towns live in terror of these crimes, to the point that leaders in the Palestinian community feel helpless and call for the intervention of the very police force that oppresses them. My family, who lives in the north of the country and has many personal and professional connections with Arab Israeli citizens (my dad had scores of Palestinian colleagues, employees, and students from local towns and villages; as a judge, my mom interacted for decades with scores of legal professionals, defendants, victims, and witnesses from Palestinian communities) is intimately familiar with these realities, including lovely, law-abiding people who are desperately looking to move because they can’t let their kids out the door unsupervised. What happens in some of these towns mirrors the worst inner-city environments in decrepit skid-row places in the U.S., and honor-related fights between extended clans (“hamulas”) and within families echo the worst of U.S. gang violence.

How Arab-Israeli violent crime reached these virulent proportions of pathology and sophistication is a matter of debate and speculation. Some believe that successful interrogations and prosecutions that crippled the Jewish-Israeli organized crime underworld created a void, into which Arab-Israeli criminal enterprises stepped in. Others think that the lack of opportunities for Arab-Israeli adolescents, fueled by deep inequalities, racism, and animosity, create a natural pool of potential “soldiers” for these enterprises. Yet others speak of patriarchal cultural norms that are difficult to root out. People who are steeped in these crimes already know that they are committed with frequency, and that there is considerable community knowledge and expertise in committing them and escaping scot-free (only 24% of homicides where the victim is an Arab-Israeli woman are ever solved, compared with 84% of crimes in which the victim is a Jewish-Israeli woman.) This reality can help demystify the Agatha-Christie-like quality of the defense’s alternative story. But to accept it would mean to live in the real, unfortunate world, not in the idealized world in which some judges might live, in which women are free to divorce abusive husbands, live free and open lives, without fearing violent consequences from their own partners and children.

I have a final observation about what I saw yesterday. When Ashraf was brought into the courtroom, flanked by guards, several nasty bruises were clearly visible on his face. He grimaced in pain and found it hard to sit down, asking permission to stand for part of the hearing. Had I been the judge in this case, the first thing I would do would be to ask him, “how are you?” and “what happened to you?”. To my astonishment, not a single member of the judicial panel bothered to figure out the provenance of the bruises or evinced compassion toward Ashraf in any way. I don’t think this is entirely unrelated to the legal aspect of what happened in this case.

One Crunchy Snack, Two Ways of Life

A couple of months ago, a group of friends and I put on an explainer of Israel’s judicial overhaul proposal at Manny’s. My wonderful colleague Hadar Dancig-Rosenberg talked about the extent to which the struggle over the country’s government structure is cultural no less than it is legal-political. As she explains it, huge swaths of the Israeli secular public are waking up to the extent to which their hard work and sacrifice (military service, taxes) are funding Ultra-Orthodox communities and special interests. I was reminded of this when we held my father’s funeral at the secular cemetery Menuha Nehona (“a proper resting place”), which is beautifully, efficiently, and compassionately run by a team of superb volunteers. The standard Jewish funeral in Israel is run by Hevre Kadisha, the Ultra-Orthodox funerary service, whose extortionist practices, dehumanizing burial procedures, and insulting bigotry have become legendary. Instead, we got to bury my beloved father with speeches from loved ones, live and recorded music he loved, moving songs, and a kaddish from his own daughter, as well as the traditional kaddish from his brother. It was such mercy that we were able to divest from the stronghold that the Ultra-Orthodox administration holds over so many aspects of any Israeli’s circle of life, and it reminded me how alienating and surreal my divorce ritual was (I’ve written about it here). As I wrote recently, the absurdities of dealing with the Rabbinate and its many tentacles were swept under the rug through a delicate dance of hypocrisies and performances. And to hear Hadar discuss it, a big part of why there’s such a huge uprising against this government has to do with how fed up people are with all this.

It’s hard to explain to people who don’t live her how insular and removed the Ultra-Orthodox experience is from everyday, mainstream secular life, but today presented an interesting example. Strauss company makes a crunchy snack called Doritos (basically, tortilla chips with a spicy kick), and a year ago they released an ad for their snack for family day. As you’ll see, the ad celebrates lots of different families, including those based on same-sex marriages:

The ad was deliberately released only digitally, not on TV, to reduce controversies with religious audiences. Nevertheless, it provoked ire among the Ultra Orthodox, to the point that the Ultra-Orthodox rcourt called to boycott Doritos.

My friend Andrea Lobel (theologian, Renewal Rabbi, and librarian extraordinaire) drew my attention to a new ad Doritos has produced, which has been shared on Twitter:

The ad is quite humorous, and based on the Eastern European folklore of the Jewish Shtetl (my dad wrote a sweet and endearing short story book about those little Jewish towns.) It’s a bit like a Jewish Monty Python. But comparing it to the secular ad above is striking. It’s obvious Doritos wanted to recapture the Ultra-Orthodox market share, and they went to great lengths to flatter and appease their target audience. The religious ad is entirely in Yiddish, with Hebrew subtitles. There’s nary a woman in sight. Most scenes take place in synagogues and Batei Midrash (Jewish scripture-learning institutions). In the movie theater scene, all the people seated at the theater are men, and all in religious garb. The ad essentially recreates the Israeli street as an entirely Ultra-Orthodox street, purged of any secular markers or identifiers and purged even of religious women (in case this seems imaginary, in some neighborhoods in Israel girls are actually admonished to stay away from the streets and play hidden from view, lest they encounter men on their way from the synagogue.)

My colleague Gadi Barzilai, whose multicultural tolerance for communities and their way of life was legendary, would probably have more patience for this than I do, but it does come not only at the expense of the secular public and Ultra Orthodox women, but the Ultra Orthodox men themselves. The limited education and life experience this lifestyle provides its adherence is producing an impoverished, ignorant community that is unable to adapt effectively and productively to life in the 21st century. It’s worth stopping, looking around, and thinking how far the chasm has come, and considering how it is informing the ever-widening civil rift in Israel.

“Apolitical” Judicial Selection in Israel? Lots of Moving Parts

A few days ago I drew your attention to the upcoming election to the Israel Bar and, particularly, to the thoroughly corrupt candidate who had sex with women in exchange for guaranteeing their appointment to the judiciary. The crippling shame of having someone like that at the top of the administration’s licensing profession in itself should be enough for lawyers of all political stripes to vote him out. But yesterday I had an opportunity to think about the wider political ramifications of this election, when former politician Ophir Pines-Paz spoke at the democracy protest in Kiriat Tivon.

My parents were both deeply involved in the struggle for democracy and against corruption in Israel, opposing the occupation, religious coercion, social and financial inequalities, and the crimes and excesses of Netanyahu, his family members, and his government. During Netanyahu’s previous government, they protested weekly in front of his house. When this horrendous government took office, my parents faithfully reported to the protests each week. Sometimes, my dad would protest mid-week at an intersection, waving his big flag in hand. Today I felt called to take his place, as his kind, hugging, righteous arm let go of his flag for the last time last week. I took my dad’s flag and went to the protest, alongside a dear friend and thousands of attendees (the above picture does not do justice to the amazing sights and sounds.)

Anyway, as Pines spoke to the protesters and explained the importance of the bar election, I realized that the Israeli system might be opaque to English-reading audiences, and the scandalous possibilities of this election are too complicated, perhaps, for the American press to pick up. So here’s your primer:

Israel does not hold judicial elections, as in U.S. states, nor does it hold purely political hearings by the legislature for its Supreme Court Justices as in the U.S. federal system. All judges in Israel are appointed by the President of Israel following the recommendation of a special committee, whose current structure, by law, is this:

The committee is designed to have an ostensibly professional majority: five lawyer/judge members and four politicians. Also, by custom, one of the elected Knesset Members is from the coalition and one from the opposition.

The proposed governmental “reform” would change the committee’s composition to look as follows:

Under this proposal, the committee would have eleven members, and judicial elections can be decided by a seven-member majority. In other words, if seven coalition members vote for a judge for political reasons, the sole opposition member and three judges cannot block them.

Thanks to dogged, relentless protests nationwide, the proposal has not passed yet. But the struggle to politicize the judiciary to guarantee that it favors the government continues on a variety of fronts. Two days ago, the government attempted to elect two coalition members (as opposed to one coalition member and one opposition member) to the committee. The vote was secret, and despite their efforts to drag things on and on and recount the votes for hours on end (how long does it take to electronically count 120 votes?) the Knesset elected only one member – KM Karin Elharar from the opposition. This means that at least four members of the coalition are secretly disgusted with Netanyahu and his governmental partners, though not brave enough to come out in opposition to their noxious plans.

What these noxious plans amount to is sitting government loyalists, ready to disenfranchise minorities, intensify the horrors of the occupation, and give free rein to the religious authority, in the Supreme Court, and more specifically, to block the appointment of a quiet, professional, independent judge by the name of Itzhak Amit to the Supreme Court. The coalition demonizes Amit and paints him as a post-Zionist demon. But in fact, he is widely respected as an excellent, hardworking, unassuming judge, and his sole sin apparently is that he decides cases based on the legal arguments, rather than by politics.

Can they do it? Let’s do the math:

With Elharar on the committee, and the three Supreme Court Justices presumably in favor of a strong, independent constitutional court, we have four votes for Amit and other independent judges. On the other side we have the two government ministers and the yet-to-be-elected coalition Knesset Member. The two votes up for grabs are those of the lawyers. Do you now understand why the government is so keen to seat Effie Naveh as the Israel Bar Chairperson? According to a recent exposé, Naveh’s campaign donors did so with the understanding that he will, in exchange, finagle a seat at the judicial election committee for them.

Now, Naveh has been consistently denying that he is beholden to the architects of the judicial reform. These vehement protestations are not particularly credible, given the efforts that the government is making to get him elected. But the bottom line is that Naveh’s personal or political opinions do not matter at all. He has been publicly exposed, and criminally convicted, as an unprincipled man, whose massive bribery and fraud operations are conducted to enrich him and his friends and to sexually gratify him. Is this the sort of person this government can do business with, as far as judicial appointments are concerned? You bet.

One of the challenges of the anti-government protests is that the insidious attack against the country’s democratic regime takes place on multiple fronts, including those hidden from sight. I hope this post shows how tinkering with each moving part of the judicial selection process can have vast consequences for democracy, and encourages those of you with an active Israel Bar membership to vote on Tuesday–and those of you with lawyer friends to encourage your buddies to vote Naveh out of office.

Fighting for Democracy on an Unexpected Front: The Upcoming Israel Bar Election

In an effort to distract myself from the overwhelming grief over my father’s passing, I’m trying to pay a little attention to the news while I’m in Israel. As I explained in a previous post, Israel’s 37th government–the most right-wing, religious, and nationalistic in its history, populated by convicted criminals and terrorists–is the consequence of Binyamin Netanyahu’s efforts to avoid going to prison for his crimes. He will sell out to anyone, and do anything, to evade accountability, and as a consequence has sold out to religious zealots out to disenfranchise women and minorities, commit unprecedented horrors and atrocities in the already traumatized occupied Palestinian territories, and shatter even the few remaining vestiges of social democracy–all with the blessing, ideology, and funding, of Kohelet Policy Forum.

A big part of this effort to overthrow democracy is a deliberate and calculated strategy to weaken the Israeli judiciary. Marketing their project as populist antagonism against the elitist judicial “junta”, the overhaul pushers set out to aggressively politicize not only judicial decisionmaking, but also the appointment of judges themselves. With the reform in stalemate due to the hard, relentless work of hundreds of thousands of protesters (including my parents; my father faithfully reported to each protests until shortly before his illness and passing), the government is trying all the tricks it has up its sleeve to nevertheless get to control the judiciary and rein in constitutional protections.

One of the consequences of these underhanded tactics is that the Israeli public is beginning to be exposed to the nefarious ways in which the sausage is made, as the vital struggle for democracy worms itself into arenas that were previously impermeable to average people and, honestly, incredibly boring. One such place is the Israel Bar, which is holding its election for Chairperson and for the Council on June 20, 2023. One of the contenders is Effie Naveh, the previously ousted Chairperson, whose wheelings and dealings are a long and disgusting story of profound corruption. If you read Hebrew, you can familiarize yourself with the details here. If you don’t, here’s the low-down: Naveh, who is rotten through and through, has spent years pulling strings and placing his friends and lovers in high places. He essentially pimped two of the women he slept with to try and get them judicial appointments. As explained in Ha’aretz, a woman by the name of Eti Craif,

a former police prosecutor, was appointed a judge on the Netanya court in July, 2016 – a few months after her name was first proposed to the panel that selects judges. Nave admitted to police that he was having an intimate relationship with Craif at the time, but denies that he used his influence to get her promoted.

According to Lemberger, the decision to start proceedings was based on evidence that “Craif was intimate with Nave not only out of attraction, but also with the purpose of advancement, and that Nave was aware of it.”

However, it was reported, “after hearing the arguments and explanations of the defense, the deputy state prosecutor thought the assessment of the evidence had to be revised.” Lemberger believes it would be difficult to prove that the two committed a bribery offense, since the relationship between them began before Craif needed assistance from Nave, due to the “lack of explicit stipulation” and because the alleged “gift” was “an intimate meeting by consent and mutual will.”

Netael Bandel for Ha’aretz, 2021

Craif, who is a piece of work in her own right, apparently also slept with minister Moshe Kachlon, exchanging juicy sexts with him, and is now shamelessly selling her story to Hollywood.

Naveh also pulled strings for his friend Yosef Elron’s appointment to the Supreme Court; got the husband of one of his lovers an appointment to the judiciary; slept with a law graduate (behind his wife’s back) in return for help passing her bar exam; got his pal Yoram Broza a judicial appointment even though Broza flunked the tests for the judiciary; hooked personal friends up, including then-chair of the bar’s ethics committee, with well-paying arbitration gigs; teamed up with the Minister of the Judiciary, Ayelet Shaked, for all these promotions as well as legislation that promoted the business interests of his allies; and drove and parked throughout Tel Aviv, including in front of hospital ERs, with a fake disability tag. In another incident, Naveh helped a lover of his enter and exit Israel without having her passport stamped, to gain an advantage in his own ugly divorce proceedings. The last incident, and the bribery that accompanied it, led to a criminal conviction. These are truly just drops in the bucket of his depravity.

Naveh’s involvement in these scandals led to his ouster as Chairperson of the Bar. But, astonishingly, he has the audacity to run again in the current election, which is a sad testament to how low the bar has sunk. A committee found that digital signatures in support of his candidacy were unlawful, but this decision was later reversed, and he’s running again. While Naveh has repeatedly claimed that, as a candidate, he is politically neutral and disfavors the judicial overhaul, he has stated that he is personally conservative. But there is solid confirmation of his involvement in politics, particularly with former law minister Ayelet Shaked, to the point of having people list themselves as right-wing party voters in return for judicial appointments. But even without this smoking gun, it should be evident to all that Naveh is an unprincipled, immoral person who will sell out and, with this government in power, an unhealthy alliance between politicians and the bar might provide a bypass that will hasten the downfall of judicial independence in Israel.

What this means is that the struggle for democracy, which usually plays out in plain public view, is now taking place in obscurity, through the upcoming bar election. Naveh’s main opponent, Amit Becher, who is also the incumbent chairperson, has led the charge against him, arguing (correctly) that Naveh’s rot will disgrace the bar. The main challenge that everyone faces is… indifference. Usually, lawyers don’t even bother voting in bar elections and, while this time people of all political stripes are so appalled by Naveh’s actions and disgusted with him that there’s an uptick in interest, it might not be enough.

I want to highlight two especially interesting aspects of the fight against Naveh. A group of people I greatly admire and like are running as an independent party for the Bar Council. Their party is called LeTachlit Reuyah (“for an appropriate end”) and the candidates are all committed public interest and human rights folks. They are running on a pro-democracy platform, vehemently oppose the judicial overhaul, and are all people of personal integrity and ethics who are highly respected and valued in the profession.

The other aspect of the fight is spearheaded by attorney Barak Cohen, whose confrontational activist style and personal courage has characterized him for years, since he led the charge against corruption in Israel’s financial institutions. Barak has been fighting a populist, aggressive, uncompromising battle against Naveh and his cronies. He identifies Naveh’s donors, publishes their names, and asks them hard questions about their financial wheelings and dealings. To date, his work has been successful in peeling some of these folks off of Naveh’s party. Seriously, look this guy up on Facebook and on Twitter –I don’t think I’ve ever met anyone who is so utterly fearless. His work is 100% transparent and he shares all the details and shows his work on social media.

In short, if you want to help prevent the hijacking of democracy through the obscure channel of Bar elections, there are two things you can do. If you are a practicing Israeli attorney (my Israel Bar membership is inactive, as I’m living, teaching, and practicing abroad) you should vote for Amit Becher for chairperson and for LeTachlit Reuyah as a party. Any non-vote is a vote for Naveh, a vote democracy cannot afford. And, whether or not you practice law in Israel, you can and should throw some money down Barak Cohen’s way, because leading a relentless fight for honesty and integrity isn’t cheap.

Hypocrisy is the Mother of Innovation

Michal Kravel-Tovi, When the State Winks: The Performance of Jewish Conversion in Israel, New York: Columbia University Press, 2017

Mattir Agunoth (Television mini-series), Kan 11 (Yossi Madmoni, Tamar Kay, David Ofek, creators), 2019

***

The opening scene of Kan 11’s dramatic series Mattir Agunoth[1] feels more like a spy thriller than a drama about religion. The hero, Rabbi Yosef Morad, is conducting a wiretap in a hotel, monitoring a diamond purchasing deal. The buyer is enthralled by the diamond’s clarity and beauty; imagine his astonishment when, as soon as he makes an offer, the seller, an Ultra-Orthodox Jew, says, “sure, as soon as you give your wife a gett.” At that instant, Rabbi Morad bursts into the room, ktav gett in hand, explaining that the deal can go through only after the recalcitrant husband releases his wife. The buyer tears up the ktav gett; Morad, undeterred, produces a copy. Cut to a Rabbinical court, in which three rabbis and various witnesses watch Morad—now delegated the gerush authority by the husband—hands the gett to the elated wife. She is finally free. The rabbis chant in unison: “Megoreshet, megoreshet, megoreshet!”, and then burst into joyous congratulations: “Mazal tov!”

In any secular, modern country, the position of a mattir agunoth – part rabbi, part psychologist, part private eye, entrusted with the authority and resources to pursue deadbeat husbands and persuade them, gently or not-so-gently, to grant their wives a divorce—would be entirely unnecessary. But in Israel, all matters of marriage and divorce between Jews are adjudicated through the rabbinical courts and subjected to halakhic law.[2] Consequently, rabbinical authorities are bound by the requirement that divorce be by mutual consent. Halakhical solutions for men who are denied a divorce by their recalcitrant wives are easier to find (as are the rare, but by no means nonexistent, permissions to remarry without obtaining a divorce); women can be financially extorted by stubborn husbands in exchange for a gett, sometimes for decades.

In the last few years, as religious scholar Masua Sagiv explains,[3] some refreshing solutions have emerged outside the confines of Jewish Orthodoxy. Private batei din, established with the goal of helping women in these desperate situations, sometimes rule for a gett when the Orthodox establishment would not. This provides respite for women who feel bound by the halakha, but does not remedy the situation for women who need to prove their divorce so that they can remarry without committing bigamy. In some cases, as Shlomo Riskin explains,[4] the rabbinical courts can engage in “hafka’at kiddushin” as a workaround. But these remedies are few and far between. Consequently, and under pressure to resolve these problems, rabbinical courts find themselves twisting the halakhah to permit the impermissible: forcing the husband to sign the gett.

As Mattir Agunoth evocatively portrays, and as experienced by Morad’s real-life counterpart, Rabbi Eliyahu Maymon,[5] this is not an easy task: divorce withholding is an obvious and frustrating act of pettiness and bad faith, motivated by greed, spite, or both. However, since the gett must be given in free will, rabbinical authorities throughout Jewish history have struggled to find ways to kosherize the coercive methods sometimes necessary to bring the gett quest to a successful close. In Mishne Torah, Maimonides tackles this problem with considerable interpretive gymnastics:

When a man whom the law requires to be compelled to divorce his wife does not desire to divorce her, the court should have him beaten until he consents, at which time they should have a get written. The get is acceptable. This applies at all times and in all places.

Similarly, if gentiles beat him while telling him: “Do what the Jews are telling you to do,” and the Jews have the gentiles apply pressure on him until [he consents] to divorce his wife, the divorce is acceptable. If, however, the gentiles compel him to write [a get] on their own initiative, the get is [merely] unacceptable. The rationale is that the law requires him to give a divorce.

Why is this get not void? For he is being compelled – either by Jews or by gentiles – [to divorce] against his will [and a get must be given voluntarily].

Because the concept of being compelled against one’s will applies only when speaking about a person who is being compelled and forced to do something that the Torah does not obligate him to do – e.g., a person who was beaten until he consented to a sale, or to give a present. If, however, a person’s evil inclination presses him to negate [the observance of] a mitzvah or to commit a transgression, and he was beaten until he performed the action he was obligated to perform, or he dissociated himself from the forbidden action, he is not considered to have been forced against his will. On the contrary, it is he himself who is forcing [his own conduct to become debased]. [6]

Mishne Torah laRambam

This sense of deep hypocrisy, hopeless entanglement in dogma, and interpretive gymnastics to resolve the resulting intractable problem, permeates Michal Kravel-Tovi’s book When the State Winks[7] in the same suffocating way. Tovi opens the book by presenting the halakhic challenge: Orthodox conversion erects thresholds and barriers aplenty in the path of people seeking conversion to Judaism, which can feel mandatory to non-Jewish women who seek to marry Jewish men. Converting through alternative denominations (Reform, Conservative, Renewal) may feel more meaningful and less oppressive to non-Orthodox women.[8] But therein lies the rub: the State of Israel only recognizes as Jewish those born to a Jewish mother or converted through Orthodox Rabbinical channels. The Rabbinate must, therefore, exert its authority on women who are not religiously observant, often new immigrants removed from the Israeli experience and thus not accustomed to the commingling of church and state, who need their seal of approval so that they can marry Jewish men. Ironically, as Tovi explains, many such women are immigrants from the former Soviet Union, and while they are viewed as non-Jews by the Israeli state apparatus, they do self-identify as Jewish—partly due to the Soviet Government’s patrilineal systems of recognition,[9] and partly through their secular integration into Israeli society.[10] Piling difficulties in their path also stands in the way of preserving a Jewish demographic majority—perceived as an essential condition for Zionist prevalence—[11] which creates surprising collaborations between the Ministry of Religious Services and nonreligious bodies such as the Prime Minister’s Office, the Jewish Agency, the Ministry of Immigration and Absorption, and the Israeli army.[12]

Tovi recounts how these conflicting goals—striving for halakhic purity and maintaining a Jewish majority—played out in a religious scandal involving a woman who had undergone conversion by Rabbi Chaim Druckman. Thirteen years later,

[a]fter filing for divorce at the regional rabbinical court (staffed by Ultra-Orthodox rabbis), her conversion was annulled retroactively by one of the rabbinic judges on the panel. The rabbinic judge, who had interrogated the woman about her religious observance, ruled that her level of observance was inadequate and that her conversion was therefore invalid, By implication, the ruling invalidated both her marriage and her children’s Jewish identities. . . [on appeal, the Great Rabbinical Court] not only upheld the lower court’s ruling but also appended another general ruling that sweepingly undermined Rabbi Druckman’s halakhic authority to convert.[13]

Tovi reviews the aftermath: Druckman, motivated by a desire to advance the Zionist agenda, had presided over thousands of conversions. The scandal pitted him and his counterparts against the ultra-Orthodox rabbis who dominated the rabbinical courts. The conflict deepened two years later, when these rabbinical courts looked askance at conversion by military rabbis: “The latter spoke of national and moral responsibility, while the former chastised the army’s winking conversation.”[14]

Steeped in this dilemma, rabbinical courts look for ways to facilitate conversions that will conform to halakhic rulings while, at the same time, accomplishing the demographic objective. Tovi’s ethnography follows women who immigrated from the former Soviet Union from their journey to a conversion Ulpan—whose endorsement of the prospective convert “carries a lot of weight”[15]—through the rabbinical courts, to the mikvah. Akin to Mattir Agunot and Maimonides, the whole journey might feel coercive and oppressive—which, let’s face it, it is, given the need to satisfy the religious requirements to get the required credential—but the converts must show to the court that they are sincere, as free will is one of the conditions for a halakhically proper converstion. Tovi examines how the women are tutored in the legible performance of sincerity: they are warned against lying, even as their teachers admit that the “don’t have x-rays for examining souls.”[16] She recounts an especially excruciating dialogue between Kati, a prospective convert, and Rabbi David, who questions her motivation in converting, accusing her of seeking Judaism solely because of her boyfriend:

Rabbi David: Who changed your fate?

Kati: I did, but through him.

Rabbi David: Should everyone convert?

Kati: Everyone should make their own decision.

Rabbi David: What, anyone who was badly off and now is better off should convert?

Kati: We weren’t badly off there. We came to be in Israel.

Rabbi David: Most olim don’t convert and aren’t religious.

Kati: I am. This reflects my decision to be at one with the Torah and the commandments.[17]

Rabbi David is suspicious of the sincerity of this performance because it is “too sweet. . . on the surface, everything is fine, but I felt something.”[18]

These performative contortions continued in the rabbinical courts. Tovi recounts incidents in which boyfriends, who felt themselves and their non-Jewish girlfriends obligated to participate in a religious charade, rebelled before the court, negotiating the extent to which they could present their genuine, secular life. In one memorable exchange, an Israeli boyfriend, Motti, is furious that his girlfriend’s application is rejected for lack of religiosity when he himself is not observant:

Motti: So I should have come here a liar? Come with a skullcap and say amen and promise to observe everything? How should I have felt about this? “Ah, I tricked you.” I would have turned out a liar but I don’t want to. I am a truthful man. I came from a religious home, but I chose to be a secular Jew.

Rabbi Blau: Everything you say is true. But I cannot help you. I want to help you, but can’t.

Motti: What do you want from me? Do you want me to come here with a mask?

Rabbi Blau: It is not a mask.

Motti: It is because I am not a religious person.[19]

The irony of Motti’s position is completely lost on him when, later, he comments: “I want Orly to immerse [in the ritual bath] before the baby is born.”[20]

Both When the State Winks and Mattir Agunoth center around the frustrating entanglement of hypocrisy and invention in Orthodox Judaism. In both cases, religious authorities, holding the reins to secular state bureaucracy, face a halakhic uphill battle in the quest to do what at least some of them might feel is fair: liberate long-suffering women from the extortion of the scoundrels they married and promote Jewish families and Jewish life through conversion. In both cases, the halakhic problem, when viewed from within its own confines, is intractable: they must follow halakhic gett and conversion proceedings. But these prescriptions are impossible to follow in the face of immoral extortionists and people who refuse to lie about keeping kosher and Shabbat when they don’t. And in both cases, complicated halakhic workarounds allow them to proceed with their eventual objectives while ostensibly staying within Jewish law: forcing men to sign the gett “out of their own free will” through trickery and violence, and forcing women to perform piousness they don’t actually feel in an accepted, legible manner.

As a secular Jew, my indignation about this system prompts me to view the solutions outside the halakhic box, but I know this is far less simple than it seems. Ostensibly, both of these problems would be solved if the state of Israel, formed with an identity both Jewish and democratic, took religious purity off the table for divorces and made them an entirely secular, no-fault proceeding, or granted equal rights to all its citizens regardless of their religious identity. The problem is that halakhic purity laws are so entrenched in Israeli society that even secular people like Motti find themselves attached to the idea of having their girlfriend immerse herself in the mikvah before giving birth, and even the secular women seeking Morad’s help in Mattir Agunoth feel a sense of revulsion and dread at the prospect of giving birth to a mamzer (bastard) because their divorce was not properly completed. The power of these religious taboos will not be swiftly undone through state action, and will require the courage of progressive, pragmatic rabbis to transform. Such courage is, sadly, in short supply in Israel’s current religious establishment. But works such as When the State Winks and Mattir Agunoth may help awaken in the secular public a sense that their personal integrity requires forging their own virtue ethics, unencumbered by centuries of misogyny.

[1] Mattir Agunoth (Television mini-series), Kan 11 (Yossi Madmoni, Tamar Kay, David Ofek, creators), 2019

[2] Isaac Shiloh, Marriage and Divorce in Israel.  Israel Law Review , Volume 5 , Issue 4 , October 1970 , pp. 479 – 498.

[3] Sagiv, M. (2017). The State and New Religious Movements. In: Feraro, S., Lewis, J. (eds) Contemporary Alternative Spiritualities in Israel. Palgrave Studies in New Religions and Alternative Spiritualities. Palgrave Macmillan, New York.

[4] Riskin, Shlomo. “Hafka’at Kiddushin: Towards Solving the Aguna Problem in Our Time.” Tradition: A Journal of Orthodox Jewish Thought, vol. 36, no. 4, 2002, pp. 1–36. 

[5] Sherry Makover-Blikov, “Every man has a key. And if you can’t get the key, you must break the lock.” Yedioth Acharonoth, Nov. 12, 2019.

[6] Mishne Torah LaRambam, Hilkhot Gerushin 2, 20 (trans. Sefaria.org).

[7] Michal Kravel-Tovi, When the State Winks: The Performance of Jewish Conversion in Israel, New York: Columbia University Press, 2017

[8] Chaim Waxman, “Multiculturalism, Conversion, and the Future of Israel as a Modern State,” Israel Studies Review 28(1) 1-21 (2013).

[9] Tovi, 59.

[10] Asher Cohen & Bernard Susser, sher Cohen & Bernard Susser (2009) Jews and Others: Non-Jewish Jews in Israel, Israel Affairs, 15:1, 52-65.

[11] Michal Kravel-Tovi (2012) ‘National mission’: biopolitics, non-Jewish immigration and Jewish conversion policy in contemporary Israel, Ethnic and Racial Studies, 35:4, 737-756

[12] Tovi, 65.

[13] Tovi, 122.

[14] Tovi, 123.

[15] Tovi, 143.

[16] Tovi, 153.

[17] Tovi, 156.

[18] Tovi, 157.

[19] Tovi, 189-190.

[20] Ibid.

Judicial Overhaul in Israel – The End of Democracy?

The news from Israel are unprecedented – the whole country is ablaze with protests against Netanyahu’s government’s plan to reform the judicial system. Netanyahu announced a pause, but the bill is still on the Knesset’s agenda for after the High Holidays, and this is a good time for English-speaking folks to figure out what is happening. So, I’ve uploaded a lecturette I created that walks you through the basics of this serious civil conflict.

I’m also organizing two events: a lecture at UCLSF on Thursday at 12:30 and a public event with colleagues and friends at Manny’s on Monday, 4/3, at 7:30. If you want to learn more about the situation.

Please, treat the Israelis and Palestinians around you with extra kindness this week. It is hard to be away from family and friends when hundreds of thousands of people are out in the streets, facing violent government-sponsored goons and Ben Gvir’s oppressive police (the cops are throwing stun grenades on protesters and hosing them from trucks.) It is also very hard for our Palestinian friends who face even more violent provocations under this horrendous government (anyone who thinks their situation is already at its worst and the government makes no difference is seriously deluded.) And please consider how you can help the fight against U.S.-based think tank Kohelet Policy Forum, which is puppeteering and funding this illiberal government from here.

In Memoriam: Leslie Sebba

It’s been more than a week since we lost Leslie Sebba, my beloved mentor and teacher at Hebrew University’s Institute of Criminology, and only now have I found the time to write. I spent the entire week at the Law and Society Association’s Annual Meeting in Lisbon, amidst a heatwave, and throughout the week my heart was heavy with the palpable absence of Leslie, who attended the meeting almost every year as a member of our Punishment and Society CRN. And at the same time, there was the uncanny feeling that Leslie was there, because the conversation revolved around ideas that he helped develop and interrogate throughout his professional life. We paid tribute to Leslie at some of the panels, though I was restless with grief because I was unable to attend the funeral and the Shiv’a and tell his family a bit about how inspiring, kind, and special he was.

My first encounter with Leslie’s work was as a law student at HUJI, where I took his course “rights of prisoners and residents of closed institutions.” HUJI’s law curriculum, at the time, was very German, in the sense that there wasn’t a lot of critical theory and empiricism; we sat in big hallways, 150 or even 300 of us, and were essentially lectured at by some of the era’s civil rights luminaries (Ruthie Gavison, Mota Kremnitzer, David Kretzmer.) Occasionally, they asked us a question; sometimes I managed to shine, which made me feel an inch taller, but I wouldn’t go as far as to actually ask a question myself, or (heaven forbid) bring myself to attend office hours. And here was something completely different: an elective course taught by a gentle, absentminded soul, a kind smile perpetually on his lips, a preemptive forgiveness for student laziness or poor behavior, and a gentle door always open for those interested in learning more. The whole thing was bathed in a quiet, gentlemanlike, and at the same time fervent care for the human rights of the most vulnerable people in society, and in big part planted the seed for my later decision to change affiliations and move over to the criminology side of the building. No longer a law student at a formalist, traditional institution, but rather a grad student at a small, rigorous empirical department, I proceeded to take more classes with Leslie throughout my master’s, and his penology course, in particular, was an exquisite tour de force. Leslie was one of the most knowledgeable and well-read people I ever met. It is thanks to him that my education included not just the American classics (though they were certainly there – the entire Johnston, Savitz, and Wolfgang prison canon) but also a lot of European and Pacific materials. I still credit my unorthodox approach to the American abolitionism movement to the fact that, thanks to Leslie, I’m well read on Scandinavian abolitionism from the 1970s. And it is greatly thanks to him that my own students learn a lot about New Zealand’s approach to restorative circles; he had us read primary research about that system when it was hot off the press.

Leslie’s own work, which he assigned with a light, humble hand (he could’ve easily had us read everything he wrote, which was just so, so good) touched on many of these subjects that came to interest me. For one thing, he was a true pioneer of victimology. While his HUJI colleague Menachem Amir published an extremely controversial book examining the concept of “victim precipitation” in sexual assault (and was skewered by feminists), Leslie’s interest in victims was far more humane. In his groundbreaking book Third Parties he tries to piece together the various theoretical legal and criminological strands underpinning the victims’ rights revolution of the 1980s and 1990s. Now, it all seems super lucid and obvious, but when it had just come out in 1996 it was a novel and well balanced effort to critically assess how much of the “victim bills of rights” that were cropping up like mushrooms after the rain was empty rhetoric and how much it would actually improve the lot of victims, especially of violent crime. His pioneering contributions to victimology were also in, basically, making room for the field as its own criminological school; he was the founding editor of the International Review of Victimology and taught a fascinating and popular course on the subject.

Third Parties was emblematic of Leslie’s approach, which straddled the worlds of law and criminology. Leslie possessed the rare and useful mix of someone who could analyze doctrine with unrivaled clarity and sharpness and, at the same time, entertain curiosity about how it plays out in the field and open-mindedly examine critiques. His vast international interests meant that he was preoccupied with international and comparative questions quite a bit; he looked at the worrisome trend of importing American punitivism such as Third Strikes laws and the notion of solitary confinement as an international human rights crime. He also had a crystal clear and lucid approach to Israeli penology, tracing the arc of punitivism back to the amnesties of the 1950s and constantly making the tie between domestic crime control and the Israeli-Palestinian conflict.

Leslie, who had a keen nose for bright and innovative minds like his own, introduced us to the writings of Malcolm Feeley, Jonathan Simon, and David Garland. It was thanks to his gentle encouragement and prodding that I mustered the cojones to attend a concentrated class, in English, from a visiting Malcolm Feeley, leading to intellectual connections that would chart the rest of my professional life. Leslie saw something in me, even as I was a night school grad student in a special master’s program for cops and prison guards (the only hours I could make while working full time as a military public defender), and it is no exaggeration to say that, if I’ve achieved a modicum of success, it is truly thanks to him. While still at the Institute, I was his research assistant as well as his teaching assistant; I was green behind the ears and truly knew nothing, and he gave me responsibilities and kudos far beyond what someone at my age and experience level merited.

Leslie also exposed me to the idea that first-rate theoretical games are fun, but they are completely meaningless if they don’t improve the lives of real people on the ground. The first project with which I helped him was a collaboration with Israel’s Prisoner Rehabilitation Authority, which had just been founded at the time. We were looking for ways to enshrine the right to meaningful labor in Israeli law. Leslie’s other work, on children’s rights, was also done in partnerships, and he was a valued and respected participant and member in initiatives of human rights organizations ACRI and Adallah.

What is truly magical about Leslie the person is that all these incredible world-improving accomplishments lived within a humble, gentle, self-effacing soul. Leslie was never driven by his ego; he supported and trumpeted his students and collaborators, worked well in groups, helped organize panels, and was happy to sit in the audience when a junior collaborator presented his work. His gentle, fatherly mannerisms belied a keen mind always devoted to improving justice. And he took great pleasure in his work – while lecturing, he always seemed to be having an interesting, enriching conversation within his own mind (it was not rare for him to pose a question and, in the same breath, answer it in two contradictory ways with a bemused face.) A great light has dimmed and the world of law, criminology, and criminal justice is impoverished for his departure. What is remembered, lives.

The long and winding road of Benjamin Netanyahu’s legal woes

Source: Al Jazeera

by Thomas O. Falk

Legal experts say Benjamin Netanyahu’s fight against corruption-related charges could take years to conclude after his recent removal as Israel’s longest-serving leader, with court delays likely pushing full-swing witness testimony back until October.

The trial has been suspended since June 16 as the prosecution and defence teams haggle over how to handle new evidence that recently came to light.

Netanyahu stands accused of conducting illegal business with companies and accepting luxury gifts from business friends in exchange for political favours. He is also accused of having promoted media companies in return for positive reporting.

The former leader has denied all accusations against him, saying the charges are a political witch hunt spearheaded by opponents.

Postponing the court case is nothing new.

While still in office, the man known as “Bibi” actively delayed his trial, attempted to limit the courts’ powers, and even tried to change the immunity law in his favour, Mazen Masri, senior lecturer in law at The City Law School, told Al Jazeera.

Now as the Knesset’s opposition leader, Netanyahu could file another request for immunity, but that would be relatively futile as he does not have the backing from lawmakers, Masri said.

“Netanyahu stated that he reserves the right to file a new request for immunity, but it seems that his chances to do so are not good. There are questions on whether he can file a second request. And even if he can, the numbers [in the Knesset] are still more or less the same,” he said.

‘High-quality testimony’

So far, the trial has proceeded in a way characteristic of situations involving highly sophisticated and powerful defendants supported by excellent – and expensive – legal advice, said Hadar Aviram, professor of law at the University of California.

The charges against Netanyahu relate to three cases, and so far his defence team has been attempting to find holes in the prosecution’s claims.

“The testimony is fairly strong but the defence exploits every weakness of each of the cases, relying on high-quality technology expert testimony,” Aviram told Al Jazeera.

All three cases Netanyahu has been charged with display different degrees of magnitude, yet they seem to involve a reoccurring theme.

“Case 1000” involves a relationship between Netanyahu and businessmen Arnon Milchen and James Packer, and the accusation is that Netanyahu received expensive gifts from them in return for advancing Milchen’s business interests.

“In many ways, Case 1000 is the simplest and strongest of the lot,” said Aviram.Play Video

Milchen’s employee Hadas Klein has testified the gifts were not merely an exchange between friends but were accompanied by demands from Netanyahu, who would allegedly contact Milchen to say that “the pink champagne and cigars have run out” and the stock needed to be replenished.

Once, when Milchen bought a necklace for his wife, Sara Netanyahu, he received a message pointing out a matching bracelet was missing from the gift delivery.

“The defence will argue that considering the vast wealth of the parties, these lavish gifts were not outside the ambit of the friendship. Notably, Milchen and Packer were not prosecuted, and Packer, who is now very ill and abroad, will not testify at the trial,” Aviram said.

Give-and-take relationships

Case 2000 centres around a deal between Netanyahu and co-defendant Arnon “Noni” Mozes, owner of the national newspaper Yediot Aharonot. It is alleged that Mozes would ensure flattering coverage of Netanyahu in the newspaper in exchange for legislation limiting the distribution of its competitor – the Adelson-funded publication Israel HaYom.

The conversation between Netanyahu and Mozes was recorded by prosecution witness Ari Harow, Netanyahu’s chief of staff, at Netanyahu’s request, which, legally, is a double-edged sword for the prosecution, Aviram said.

“Case 2000 is more tentative. The recording is damning, but the very fact that it was made could be an argument for the defence that neither Netanyahu nor Mozes saw anything wrong with the conversation,” said Aviram.

Beyond that was a complicated interpretive question: to what extent was this conversation a deviation from the usually murky give-and-take relationships between journalists and politicians, said Aviram.

Case 4000 involves a relationship between Netanyahu and Shaul Elovitch, owner of news site Walla and controlling stakeholder in the Bezeq communications group. As with Case 2000, this one involves pressure by Elovitch on journalists to provide flattering coverage of Netanyahu in return for legislation favourable to the Bezeq group.

The central prosecution witness is journalist Ilan Yeshua, who testified that he was constantly pushed, warned, and harangued by Elovitch to portray the Netanyahu family in a flattering light.

On cross-examination, however, the defence elicited that Yeshua was involved with various politicians in this manner, though he did specify that the scope and intensity of the pressure to favourably cover Netanyahu was stronger by orders of magnitude.

All of the above leads Aviram to believe that Case 4000 was “the most severe and the one that, at least until recently, looked bleakest for Netanyahu”.

The defence has succeeded in halting cross-examination to search Yeshua’s phone by an expert witness to reveal material pertaining to more politicians. However, this initiative might backfire and reveal more damning information against Netanyahu, Aviram said.

Blanket denials

Overall, there already appears to be an overarching strategy from Netanyahu’s legal team. The most prominent is plain denial.

“So far, Netanyahu’s consistent response to the cases against him is ‘nothing will happen because nothing did happen,’ and the defence has followed up with a blanket denial of all the accusations,” said Aviram.

“The argument will be that none of the occurrences described in the three cases is excessive in a climate in which relationships between journalists flourish and wealthy old friends shower each other with gifts.”

However, the strategy is by no means a bulletproof tactic for Netanyahu. Two of Netanyahu’s allies are unavailable to testify on his behalf: Sheldon Adelson is dead and Packer is ill and abroad.

“It will weaken the defence’s case,” said Aviram.

While hundreds of witnesses are expected to testify during the trial, one should not expect Netanyahu to take the stand himself, as the risk outweighs any potential benefit, Aviram said.

“It is unlikely that Netanyahu will testify at trial. He cooperated with the police investigation and, in his interrogation, flat-out denied all the allegations against him – and he has nothing to gain from being exposed to questioning again.”

It will take significant time until a verdict is reached, given Netanyahu’s status and resources.

“We are looking at years, if not decades, of appeals, which will delay if not thwart any actual incarceration,” Aviram concluded.

Whose Goons Are These?

‘Help!’ he shrieked shrilly in a voice strangling in its own emotion, as the policemen carried him to the open doors in the rear of the ambulance and threw him inside. ‘Police! Help! Police!’ The doors were shut and bolted, and the ambulance raced away. There was a humorless irony in the ludicrous panic of the man screaming for help to the police while policemen were all around him. Yossarian smiled wryly at the futile and ridiculous cry for aid, then saw with a start that the words were ambiguous, realized with alarm that they were not perhaps, intended as a call for police but as a heroic warning from the grave by a doomed friend to everyone who was not a policeman with a club and gun and a mob of other policemen with clubs and guns to back him up. ‘Help! Police!’ the man had cried, and he could have been shouting of danger.

Joseph Heller, Catch-22

The image above was screen-captured from a cellphone video, which depicts goons from La Familia, a group of pro-Netanyahu goons with ties to the infamous soccer team Beitar Yerushalayim, attacking anti-Netanyahu protester Sedi Ben Shitreet and a Ha’aretz journalist, but you could be forgiven for mistaking them for actual cops. The image below, also from cellphone footage, depicts the Israeli police beating up 71-year-old protester Ami Dayan for no reason whatsoever.

Looking at these horrific images takes me back to 2014, when I visited Israel and first experienced the phenomenon of right-wing goons following peaceful left-wing protesters home and beating them up under the cover of night. There’s something especially vile about this–it triggers my cultural Jewish imagination and takes it to darker times of pogroms and extinctions–and, of course, it creates strong feelings of kinship and compassion with the horrors that BLM protesters experience at the hand of goons like Kyle Rittenhouse and so many of his ilk.

There’s not a lot new to say about this beyond the obvious, but I will contribute this thought: One of the scariest things about fascist regimes is the deliberate blurring of boundaries between government goons and private goons. It’s a two-way process: governmental encouragement and empowerment of private goons, supporting their policies in ways that legitimize them as the executers of oppressive state policy, and obscuring the visibility of government agents as such to appear as private entities and shirk responsibility for violence and abuses of power.

This boundary blur is merely a reflection of corrupt governments in both countries, in which the state is captured by people who pillage and exploit everything for their sole, selfish benefit and care nothing for the public good. It is only natural that the lack of distinction between their private interests and their government goals will manifest in their choice of goons, in the ways oppressive state-sponsored thuggery is performed in the streets, and in the difficulty their victims face in identifying the responsible parties for violence and bloodshed.

Vote.

#LSA2020: ADVOCATE

What a treat we all had this evening at the Law & Society Association Annual Meeting! We got to view the excellent Israeli documentary Advocate about attorney Leah Tsemel who represents Palestinian defendants in Israeli courts. Tsemel is revered in some circles and reviled in others for her iconcolasm, bravery, and unwavering commitment to the Palestinian struggle.

The documentary showcases one of Tsemel’s most difficult cases: the defendant, Ahmad, 13 years old, ran around with his cousin with knives. They stabbed an Israeli child, also 13 years old. The cousin (15 years old) was killed by the Israeli police/military. Throughout a horrific, brutal investigation, after sustaining serious beatings and a cracked skull, Ahmad argued that he had no intent to kill, only to frighten, and did not want to attack children. Tsemel faces a tough dilemma: because of his juvenile status, if Ahmad confesses, he won’t be incarcerated but rather sent to six years at an institution. if he goes to trial, he might face imprisonment. She is adamant that she will support his right to continue to tell his truth.

The film also tells the story of Tsemel’s life, from her experience of the 1967 occupation of Jerusalem as a law student, through her activism in socialist anti-Zionist movement Matzpen (“compass”) in the 1970s, her husband’s involvement in radical activities, and her adult children’s thoughtful, complex reflections on their family life in the shadow of their mother’s convictions and unusual career. Tsemel emerges as an unusually brave and committed person.

I was very glad to have the opportunity to see the film, and surprised at the points at which Tsemel’s life choices illuminated my own. I served for five years as a public defender at the Israeli Military Defense Counsel’s main office, where I occasionally represented people who, on the surface, are on the opposite end: Israeli soldiers who looted Palestinian homes and abused Palestinian detainees. I vividly remember an evening at which four of us, who strongly identified as left-wingers, sat at a pub in Tel Aviv and talked about our moral convictions about the occupation. Two of us said they would refuse to represent soldiers in these cases; one of them, still someone I like and admire a lot, explicitly said so to our commander and ended up getting disciplined but insisted on taking on other cases as a trade-off.

I admitted to my friends that I saw no ethical problem representing these folks (older than Ahmad, but not by much.) I sometimes worry that expressing this position will be incomprehensible, or even reprehensible, to friends who see the conflict in black and white. It was precisely because of my conviction that the occupation was vile and debased everything and everyone that touched it that I saw it as a duty to represent these soldiers. To me, they were placed by their government and their commanders in morally impossible situations akin to the student participants of the Stanford Prison Experiment. Encouraged by the overwhelming racism and intractable duality created by the conflict, and marinating in a military culture that ignored (at best) or condoned (at worst) their wrongdoing, they were victims of the horrors of the occupation, like their Palestinian counterparts (albeit, of course, not to the same degree.) When I interviewed Israeli conscientious objectors, most of them former combat soldiers, about their experiences, it was evident how tortured and scarred they were by the memories of engaging in things they now considered atrocities; this is one of the reasons I have so much respect for Breaking the Silence (“shovrim shtika”), an organization of former combatants revealing their experiences. If there is ever to be peace, everyone should have the opportunity to exorcise the demons of this horrible, violent conflict, so that real peacemaking work can be done. I see the way the occupation has damaged the occupiers every day in Israeli society–the machismo, the lack of empathy, the culture of not listening, the verbal and physical violence. Of course the other side suffers orders of magnitude more, and both sides are locked in positions in which they ascribe victimhood to themselves and crimes to the other party. These identitarian labels and the truthiness they come with are very hard to shake.

Growing up as a largely nonpolitical nerd, I was fascinated by organizations like Matzpen and by friends who had strong political consciousness, were radicalized since high school, and went to protests and somesuch. I envied, and marveled at, the ability to wake up in the morning with the unwavering feeling that One Is Doing God’s Work and that the adversaries were unquestionably the bad guys. I felt so childish by comparison because my opinions were so unformed. It was much later, in the army, that I found my own political consciousness. There’s nothing like ranks and stupidity and reading Catch-22, which felt like a documentary of my life at the time, to crystallize unfairness, injustice, inequality, and the burning need to help people caught in Kafkaesque situations not of their making. But even then, I simply couldn’t resign to a formula under which one side was the good guys and the other the bad guys. The miasma of the conflict infected everything around it, and the crumbs of ugliness that fell on my professional plate did not always neatly arrange themselves in a way that made moral determinations easy. It didn’t always favor one category of humans over the other, and it made for interesting, reflexive experiences, thinking about what world improving action I could take given what I had in front of me. Much of what I learned in practice, particularly how class differences played a horrible role ruining young people’s later civilian lives, informed and enriched my later scholarly work.

But the sense that the world of good and evil is complicated, and that there is too much suffering around me to take sides and stick with them in perpetuity, seems to have remained as a permanent feature. Today our hearts cry as protesters respond to the horrific killing of George Floyd. Opinions fly back and forth about rioting and property destruction–is it wrong, is it right, who is doing it, what would MLK say about it–and I just find that the heart is big enough to contain and feel, really feel, the suffering of everyone, before being so sure about what I think about every aspect of this situation. Maybe Leah Tsemel would shrug and simply say that the evils of racism justify any means and that it’s not for her to judge the reaction–and would feel comfortable in her unwavering commitment to this ethic, and sleep soundly. Me, I’m not sure of anything, except of the profound sadness I feel–for George Floyd’s family and friends, for his community, for Black people feeling traumatized, for Black lives being devalued, for the rage and grief that prompts people to destroy, for the unloved, cynical emptiness that would lead people to jump on the bandwagon of destruction, for the losses of local businesses, for the people challenged to respond in a human, decent way, and not knowing what to do, for everyone who is angry and sad and afraid and feeling inadequate to mend the sorrows of the world. It is a thicker, more overwhelming sensation, perhaps, of ethical humanity, but I have grown to accept what is in my crying heart–in any human heart–and its miraculous ability to hold the extremes of joys and sorrows. When called upon to rebuild, I trust in my ability to determine, as best I can, how I can reduce suffering in the world. It’s all any of us can do.