Family and Predisposition in the Age of 23andMe: The Cat Is Out of the Bag

Just a few days ago, I did the hardest thing I had ever done: I officiated my father’s funeral. Hundreds of friends, colleagues, and students of my dad came, many of whom remembered me only as a very young child. Many of these people commented, to my mom or to me, what a shock it was for them to see me: I am a dead ringer for my father, especially in my now short haircut that resembles his own haircut when he was in the army. The striking resemblance is hard to ignore. I took a lot of pride in these comments. It is wonderful to resemble my precious dad, who was the best person on Earth, and if I ever live up to be a tenth of the person he was, I’ll be very proud of myself.

Sleepless and weeping, I just read Kwame Anthony Appiah’s column in the New York Times from 2022, in which he applies an ethical lens to two letters written by adopted adults who want to contact their birth families. At the time these people were adopted, it was customary to keep their provenance secret from them, with a possible revelation (or not) when they came of age. Consequently, people who now, thanks to 23andMe and similar platforms have access to their genetic makeup, can now more easily find their birth families, which opens up lots of complicated moral dilemmas.

As regular readers know, I’m an adoptive mother. My wonderful son is the light of my life and the best thing that ever happened to me and my partner, as well as to our parents. I’ve written about our adoption journey and its implications for my worldview here, here, here, and here. The gold standard in current adoptions is open adoption, in which the child and the adoptive family know the birth family and vice versa. Some birth parents choose to be in touch and involved. Some do not. How people handle the immense pain of placing a child for adoption is profoundly individualized and should be respected as such. But at least one’s biological origins are never a shameful secret that needs to be hidden from them, awaiting a big revelation.

This newer adoption regime is not without its complications, and works differently for different families, but current science widely considers it significantly superior to closed adoption. The main argument for it is this: people are naturally drawn to their biological provenance. It is deeply important to them. In the first few days we spent with our son as a newborn, during the long, exhausting, and yet precious nights of hourly feedings, I was drawn to reading Charles Dickens novels, and remember being struck by the centrality of the mystery of provenance in so many of them: Bleak House, David Copperfield, Great Expectations, Little Dorrit. Dickens himself had great interest in this issue, as one of the key founders and benefactors of the Foundlings Hospital. He published an article about it in 1853 titled Received, A Blank Child. The psychological distress of not knowing who one is, where one came from–especially in the rigidly stratified Victorian era–permeates Dickens’ writing. At the time, I also encountered many adult adoptees who so deeply resented the secrecy of their own adoption that they came to oppose adoption altogether, alongside many birth mothers who feel that the secrecy and shame surrounding the process created sickening opportunities for pressuring them to place their children for adoption. While anyone is entitled to their opinions, which are naturally shaped by one’s own life experiences, I wonder if the distressing legacy of unscrupulous closed adoptions is unfairly skewing these folks’ view of a much-transformed (and for the better) adoption landscape.

In his sensitive responses to the adult adoptees, I noticed that Appiah, who is characteristically careful with his terminology, does not use the terms “right” or “birthright” to know one’s biological origins. I’m not super versed in the jargon of philosophical rights theory, and the word “right” means different things to different people. But it does strike me that knowing who your birth family was is deeply important to many people and it makes a lot of sense to me that it does. Regular readers know I’m very far from a biology determinist, and even I was surprised by how gratifying I found it to be physically compared to my beloved father. It was deeply meaningful and brought me unexpected comfort in this devastating time. At the same time, It’s clear to me that even though people have a “right” to know their provenance, as they do other aspects of their biology, these discoveries do not necessarily make things better for them. A 2017 study by Lebowitz et al. highlights some significant downsides: today’s technologies, which give people access to a plethora of information about their genetics, make them overestimate the impact of their predisposed genetic properties and thus makes them pessimistic about their physical and mental health–despite what we know about epigenetics and the considerable impact of environment.

All these threads boil down to this: knowing things about your own genetic makeup, including about your birth family, has advantages and drawbacks, and plays out differently for different people. Thing is: good or bad, simple or fraught, freeing or burdensome–knowledge about your DNA is now easily available and secrets are near impossible to keep. Law and policy in a variety of areas–including family law and criminal law, two fields I’m deeply interested in–must be shaped with the understanding that the cat is out of the bag.

I think the idea that our deepest and most unsavory secrets will come to light–and living with the inevitability of discovery–looms large in our collective nightmares. In Clarissa Pinkola Estés book Women Who Run with the Wolves (now experiencing a well-deserved renaissance), she tells the story of a golden-haired woman murdered by a spurned lover and buried near a river. In time, reeds resembling her beautiful tresses grow over her grave and sing the song of her murder and her killer’s name. It’s no coincidence that many cultures feature similar stories. The wonderful Argentinian film noir Los Tallos Amargos is based on the same plot point. The new, democratized access to DNA testing has ushered an age in which these deeply embedded cultural fears are here.

In the adoption field, this means that birthparents and adoptive parents have to be very clearly apprised of the fact that their child will have access to information about their provenance. This is true for closed adoptions, open adoptions, and even kin adoptions to hide all kinds of unsavory family secrets. DNA testing services are here and in wide usage, and so whatever you think you are hiding about a child’s biology–to protect them, to protect yourself, whatever the reason–will come to light. Whatever role you play in the adoption triangle, you have to play it with the understanding that you have no control over whether, or when, the facts will come to light. This can cause a lot of distress and fear, but it is nonetheless true.

In the criminal justice field, it means that much of the concern about invasive DNA testing methods is now moot, whether positive or not, given their increasing availability and sophistication and decreasing costs. I see these concerns raised by privacy advocates and racial justice advocates. Honestly, it seems a bit ridiculous to resent the role that private DNA testing services and familial DNA testing played in unveiling and prosecuting California’s most heinous murderer and rapist, or to begrudge the relief that the current wave of cracking cold cases through novel uses of DNA technology brings to families even decades after the crime. In 2013, Charles MacLean called for accelerating another helpful DNA-based tool: producing an artist’s rendering of a perpetrator’s face based on an ancestry analysis of their DNA, which raised concerns about AI-generated over-racialized portrayals of perpetrators. Regardless of where you stand on the range between enthusiasm and concern about these technologies, they are here now and have helped crack at least one horrendous cold case.

This also means that some arguments about rehabilitation-versus-retribution are going to be skewed by our increased knowledge about whether and how people can change. In 2005, the field of juvenile justice was rocked by new insights from neuroimaging and developmental psychology about the malleability of the adolescent brain, leading to many welcome enlightened developments regarding the sentencing of people for crimes they committed at a young age. But what about kids who, from a very young age, present symptoms of what might later be diagnosed as psychopathy? In this piece, Angela Lashbrook looks at a difficult paradox we face now: on one hand, we want to exercise extreme caution before labeling children as psychopaths, opting instead for the still scary, but perhaps less so, diagnosis of oppositional defiant disorder. On the other hand, it now turns out that the earlier the psychopathy diagnosis, the easier it is to do something about it, both clinically and through environmental redirection; adult psychopaths are notoriously resistant to any treatment or remediation. But talking about the advantages and drawbacks of labeling people with a diagnosis we now have the scientific means to determine they actually have is moot in an era of accelerated discovery and decreasing costs.

I would like to see more scholarship and policymaking in these areas leave behind the “pros and cons” discussions about disclosures, and move toward the more important question: how are we to shape our personal lives and public policies knowing that, whether we like it or not, genetic knowledge is widely available? How do we shift the conversation from talking about the virtues of keeping secrets that are impossible to keep toward framing the validity and immutability of these revelations in a scientifically valid way? Rather than trembling in fear of discoveries that will shake up our self perceptions and our families, wouldn’t it be better if we thought about the extent to which these discoveries have the power to shape our lives, and the varying degrees of freedom to shape our futures even as we know more about our pasts and presents?

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.

Op-Eds and their Aftermath

The process and aftermath of yesterday’s Op-Ed in the Los Angeles Times reminded me that some aspects of my job are not as transparent as teaching in the classroom and worth explaining a bit more. Academics do many things beyond teaching: publishing, committee work, conferences/meetings. Some of us also do policy work, some of us with law degrees litigate pro bono, and some of us appear on the media as analysts and experts. Much of this work is either unpaid or underpaid–whether or not that’s justifiable is hotly debated.

Writing op-eds has made my other writing (academic and popular) better, because it teaches two important skills: relevance and parsimony. Op-eds are time-sensitive and must address an issue on the news. They are also restricted in length (aim for about 800 words), and getting them to the sweet spot between gravitas and brevity often requires a productive cooperation between author and editors. Happily, I’ve had great experiences writing op-eds for the Chron, the L.A. Times, and the Daily Journal, among other outlets, which taught me to be as snippy as I can in the first draft, lest something I’m fond of ends up cut in the edits.

Even with these caveats, sometimes important clarifying information gets left out, which is a bummer, and sometimes inaccuracies slip in–which means you have to find a way to let that go after the thing is already in print.

What is somewhat of a new phenomenon, or certainly exacerbated over the last few years, is the extent to which an op-ed generates a lot of feedback addressed directly to the author (as opposed to a letter to the editor or somesuch). With a topic like the Manson family that’s to be expected–even fifty-five years after the fact, these cases still provoke a lot of strong emotions–but I am somewhat taken aback by the expectations and entitlement of complete strangers. I suspect the Internet is to blame; it has laudably democratized the public square, but it’s also significantly lowered the thresholds of basic decorum and restraint, and with the general erosion of public discourse, I suppose it’s inevitable.

Yesterday’s op-ed yielded two curious and more-or-less politely worded messages, one of which included a request that I call the person (with their phone included!) to discuss my philosophy of punishment and the other was an actual call placed to my cellphone with a request to call back (!!!), and three exemplars of hateful drivel (one of them truly vile–you know who you are, bud.) I skim all these things to figure out whether it’s a police matter or random viciousness; this time, I’m relieved to say, it was the latter. I have some questions.

To the folks who write politely or semi-politely and leave a phone number: Thanks for your interest in my op-ed and for not threatening to kill/rape me (it’s not a high bar). Pals, do you truly expect a complete stranger, whom you’ve contacted out of the blue, to call you and discuss what they wrote in the op-ed? Do you believe that the author owes you this time and effort? If so, why? Do you think the author gets paid to return calls to random strangers throughout the country to discuss their writing? If so, who do you think pays for this? When you don’t get a call back, are you disappointed? Are you looking for more intellectual stimulation and being proactive about it in a weird and somewhat inappropriate way? If so, that’s weirdly heartwarming, and may I recommend reading some of my books (here they are) instead of seeking an awkward phone conversation?

More importantly, i’m deeply curious about the hate mail authors. They often come in the early hours of the morning, which suggests that they come from people who read the print edition of the paper or from people who get up early on weekdays and weekends but have plenty of time to kill (I used to get the vilest emails after early-morning CBS-5 appearances.) Some of them suggest the person read the op-ed; some suggest they didn’t – just skimmed the headline and googled me. If you’re the author of vile hate mail, I have some questions, and perhaps you can indulge me:

What sort of person are you? Do you wake up early in the morning excited about writing vicious things to complete strangers? Do you approach the paper strategically, looking for people to attack, or do you just let the spirit move you? Are you proud of this behavior? Do you tell people (e.g., your spouse if you have one) you do this, or is it just your little secret? Do you get a thrill out of the prospect of upsetting the addressee, or do you just unburden yourself and not think of the recipient’s reaction at all? If the person told you their father was critically ill in hospital and was anxious and upset when receiving your message, would you feel contrition, schadenfreude, or something in between? And how does this habit harmonize (or not) with the rest of your life? Do you also get into road rage incidents? Problems at work? Are you verbally or physically abusive of your family members? What does it feel like to walk around with so much rage in you? Aren’t you worried about getting a heart attack?

Most importantly, to everyone: It’s the newspaper. If you read something you dislike, you have choices that do not include pursuing the author. You can discuss the article with your friends and family, or you could just move on. There’s always tomorrow’s news.

Yours truly,

Your local small-time public intellectual

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.

Op-Ed in the L.A. Times Critiquing the Gubernatorial Veto on Parole

Today, the L.A. Times published my op-ed, in which I criticize California’s gubernatorial veto on parole which, as I explain in Yesterday’s Monsters, serves no purpose except contaminating the parole process with politics and optics. Here it is:

***

On Tuesday, California’s 2nd District Court of Appeal reversed Gov. Gavin Newsom’s veto of Leslie Van Houten’s parole, reinstating the state board’s parole grant decision. Their ruling exposes deep flaws in California’s system of allowing gubernatorial vetoes in the first place.

Van Houten, a member of the infamous Manson “family,” participated in the murders of Rosemary and Leno LaBianca in 1969. She was 19 at the time. These were horrific crimes whose aftermath shattered a sense of innocence and safety for many. But it is also true that Van Houten and other teenage girls caught in Manson’s web were indoctrinated into, exploited and abused by a dangerous cult not properly understood until many years after the murders.

In prison since 1971, with her original death sentence commuted to life with parole in 1972, Van Houten has transformed herself, earning two academic degrees, participating in rehabilitative programs and expressing remorse for her crimes. After decades of prosecutors and families of the victims of Manson’s crimes opposing Van Houten’s release, the factual evidence finally outdid the political pressure: Since 2016, the Board of Parole Hearings has recommended her release five times. Gov. Jerry Brown and then Gov. Newsom reversed each decision.

The appeals court reviewed the veto through a system deferential to the governor; all they needed to uphold his decision was “some evidence” that Van Houten, now 73, presents a risk to public safety. The court concluded that his veto was “not supported by a modicum of evidence in the record.”

Since a 2008 decision from the California Supreme Court, parole boards can’t deny release based solely on the severity of a crime. Instead, they must show that the parole candidate poses a public safety risk. Boards and governors alike have circumvented this standard by using hard-to-falsify language — for example, vaguely claiming that they don’t think the inmate possesses “insight” about their crime.

In denying Van Houten’s 2020 parole bid, as the appeals court reported, Gov. Newsom argued that her “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying.” He was also “unconvinced” that her childhood trauma, including her parents’ divorce and a forced abortion, “adequately explain her eagerness to submit to a dangerous cult leader or her desire to please Mr. Manson, including engaging in the brutal actions of the life crime.”

The court essentially called the governor’s bluff. They found that Van Houten’s extensive record showed “no additional factors Van Houten has failed to articulate, or what further evidence she could have provided to establish her suitability for parole. The Governor’s concern that there is more than meets the eye is, on this record, speculation, but [per state law] the Governor’s ‘decisions must be supported by some evidence, not merely by a hunch or intuition.’”

Yet allowing the governor to veto parole recommendations at all risks reducing such weighty decisions to one person’s hunch or political agenda. California is one of only two states that allow gubernatorial veto of parole. The Legislature introduced it in 1988, politicizing the parole process and adding public pressure — as well as optics — to what should be a professional assessment of risk. The veto works in one direction: The governor can only veto parole recommendations, not denials.

Any fear that the state is releasing dangerous people in droves is unfounded. Parole boards are reluctant to grant parole. According to data from the California Department of Corrections and Rehabilitation, the Board of Parole Hearings recommended it in only 20% of cases in 2019. As I explain in my book “Yesterday’s Monsters,” receiving parole at one’s first hearing is extremely rare. I found that the median time spent behind bars on a life sentence with parole in California has risen from 12 years in 1980 to 28 years in 2012 for those who have been released, and a quarter of the prison population is serving life sentences — 26,000 with parole and 5,000 without.

The role of politics was particularly clear during the COVID-19 pandemic. The aging and infirm lifer population faced serious risks of contagion and death behind bars. They also pose little to no public safety risk, as shown by robust criminological evidence. Still, Newsom agreed to release merely 8,000 people — a deficit eclipsed by incoming admissions from jails, and the vast majority with just weeks or months left of their sentences. Van Houten was up for parole in 2020 when her prison, the California Institution for Women, was experiencing a COVID-19 outbreak of more than 100 cases.

The court’s decision now puts the ball back in the governor’s court. He has a 10-day window, starting in a month, wherein he can instruct Atty. Gen. Rob Bonta to appeal this case to the California Supreme Court. Common sense should prevail and guide our leadership in Sacramento to allow this rehabilitated septuagenarian to live her life quietly on the outside.

But no matter the outcome, her journey raises serious questions about the gubernatorial veto. Do we truly need an extra layer of political considerations to assess danger to the public — or should we trust the professionals appointed by the governor, mostly from law enforcement backgrounds, to do their job?

Hadar Aviram is a professor at UC Law San Francisco. She is the author of “Yesterday’s Monsters: The Manson Family Cases and the Illusion of Parole” and co-author with Chad Goerzen of the forthcoming “FESTER: Carceral Permeability and California’s COVID-19 Correctional Disaster.”

CA Court of Appeal Reverses Newsom’s Veto, Reinstates Van Houten’s Parole

Parole drama today! the California Court of Appeal for the Second District reversed Gavin Newsom’s veto of Leslie Van Houten’s parole, reinstating the board’s parole grant decision.

You can read the decision in full at this link. It’s a 2:1 decision, with the majority opinion recounting Van Houten’s early history, life crime, prison history, and plans for release. Their point of departure is a standard of review that is highly deferential to the governor:

We review the Governor’s decision under the “some evidence” standard, a standard our Supreme Court has called “extremely deferential.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 665 (Rosenkrantz).) Under that standard, a simple modicum of evidence is all that is required to uphold the Governor’s decision. (Shaputis, supra, 53 Cal.4th at p. 210.) “Only when the evidence reflecting the inmate’s present risk to public safety leads to but one conclusion may a court overturn a contrary decision by . . . the Governor.” (Id. at p. 211.)

p. 43

But even under this standard of review, “we nonetheless conclude that the Governor’s reversal in this case is not supported by a modicum of evidence in the record.” (p. 44).

Their support for this assertion echoes what I said in chapter 4 of Yesterday’s Monsters: that the constant refrain that Van Houten has somehow failed to do even deeper psychic excavation into her circumstances and crime is nothing but smoke and mirrors, that it is ridiculous especially in someone so introspective, and that it is thin cover for political optics.

The Governor found that Van Houten’s “explanation of what allowed her to be vulnerable to Mr. Manson’s influence remains unsatisfying,” and he was “unconvinced” that Van Houten’s parents’ divorce and her forced abortion “adequately explain her eagerness to submit to a dangerous cult leader or her desire to please Mr. Manson, including engaging in the brutal actions of the life crime.”

p. 44

To which I’d say, how exactly does he expect anyone to explain a bizarre stranger homicide in the context of a cult? Is there anything she could possibly say that would lead anyone in Sacramento to write, “aha, now I get it”? The Court agreed, walking us through Van Houten’s introspection in a way that shows the Governor’s reasoning for the sham that it is:

It cannot be said that Van Houten has not extensively identified and discussed the factors leading to her life crimes, only some of which briefly are referenced in the Governor’s decision. In both her interview with the CRA evaluator and at the parole hearing, Van Houten expounded at length on the causative factors, beginning with her feelings of anger and abandonment after her parents’ divorce, a stigmatizing event in that era, and how that led to drug and alcohol abuse. She ran away from home with her boyfriend, who had impregnated her. Her mother then forced her to have an illegal abortion against her wishes, unmedicated, in her bedroom, instructed to keep quiet so as to not wake her siblings.

Van Houten spoke of shutting down emotionally and feeling numb after the abortion. The CRA evaluator wrote that, even now, Van Houten “was tearful as she spoke of the abortion and what ‘might have been.’ ” Van Houten described herself at that point in time as being “ ‘[d]esperate to be accepted,’ ” and “ ‘ha[ving] no sense of value. My value came in the eyes of other people.’ ”

Van Houten stated when she met Manson cult member Catherine Share, she “was at an all-time bottom low. I had no income, I did not feel good about either of my parents, and when I met her, it seemed to me that I was being offered a pretty good life.” She described how Manson slowly indoctrinated her, often while she was under the influence of LSD. The cult was not murderous and violent at the outset—rather, she stated her time at the ranch initially “ ‘seemed fun,’ ” and the talk of and preparation for violence and revolution came later. Van Houten said she “ ‘wanted to belong and . . . wanted to belong to something that wasn’t connected to my past.’ ” Van Houten explained how Manson used her anger with her parents and her shame about the abortion to convince her to turn her back on society, accept the alternative lifestyle he offered, and reject the lessons of right and wrong she had learned in her youth. Manson successfully transformed any doubts Van Houten had about the cult into her own self-criticism for failing to achieve the enlightenment he purportedly offered. By the time Manson’s talk turned to violence and murder, Van Houten already had fully committed to him, so much so that she believed he was Christ reborn. She also believed in the impending revolution, and that remaining with Manson was key to her survival.

The Governor found Van Houten’s extensive discussion of the causative factors inadequate to explain her life crimes. This necessarily implies the Governor believes there are additional factors for which Van Houten has failed to account, factors that, unaddressed, create a risk of violent recidivism. There is no indication in the record, however, of a latent underlying factor that potentially could result in violent conduct, nor has the Governor identified one. The CRA evaluator found Van Houten did not meet the criteria for psychopathy or a personality disorder, and there was no evidence of a thought disorder, hallucinations, or homicidal or suicidal thoughts or behavior. The evaluator further found it “very likely” that Van Houten’s youth at the time “significantly impacted” her involvement in the life offense, a factor obviously no longer applicable five decades later. The CRA’s finding that Van Houten presented a low risk of recidivism was consistent with similar evaluations over many years. Van Houten, moreover, has no history of violence either before the life crimes or in the 50 years since, and the prison staff regarded her highly enough to place her in positions of leadership within the prison, including facilitating groups intended to help other inmates with their rehabilitation.

The record shows no additional factors Van Houten has failed to articulate, or what further evidence she could have provided to establish her suitability for parole. The Governor’s concern that there is more than meets the eye is, on this record, speculation, but the Governor’s “decisions must be supported by some evidence, not merely by a hunch or intuition.” (Lawrence, supra, 44 Cal.4th at p. 1213.)

pp. 45-47

The unwritten part of this is pretty obvious to me: the only factor that can explain this veto is political optics, and California law does not allow Governors to veto people’s parole because it will look bad and people will write mean things on Twitter.

The only remaining question is: What happens next? It is quite possible that Gov. Newsom will instruct Attorney General Bonta to appeal this to the California Supreme Court and to ask for an en banc decision, which will further delay proceedings. I was asked today whether they could hold Van Houten in prison while they do that. I honestly am not sure. I will say, though, that if she’s released pending the CA Supreme Court decision, it’ll be the second time she’s spent some time on the outside–this is what happened when her request for a new trial was approved in 1979.

There is another reason why Newsom’s decision was outrageous: you may not remember this, but when Van Houten’s case was pending before Newsom, CIW, where she is incarcerated, had a horrendous COVID-19 outbreak. As I wrote at the time, to keep a 72-year-old woman in prison when she has no disciplinary record whatsoever and is lauded and appreciated for her superb behavior and personal growth at a time when her congregated facility has a huge outbreak was inhumane. I really hope our leaders in Sacramento can let go of ego and optics, set aside their personal aspirations and dread of negative publicity, and do what is unquestionably the right thing here: let this go and allow this low-risk septuagenarian woman with advanced degrees to live her quiet life on the outside.

Cooperation and Disruption in True-Crime Podcasting: Your Own Backyard

As some of you know, I’m beginning to work on a new project that sits at the intersection of new media, victimology, and law enforcement. I’m interested in the true crime podcast community, especially in podcasts targeting unsolved crimes. One of the questions I’m deeply interested in is the give-and-take between official law enforcement and podcasters (whether family members of the victim or third parties), which seems to range from hostility, through begrudging acceptance, all the way to pretty warm cooperation.

One notable example is Chris Lambert‘s excellent podcast Your Own Backyard, which is a thorough investigation of the disappearance of Cal Poly student Kristin Smart in May 1996. Lambert, who started off as an absolute stranger but established a warm collaborative relationship with the Smart family, has produced a true investigative masterpiece, chock-full of resources, first-hand testimony, circumstantial evidence examination, and intelligent inquiry into various forensic science disciplines (including human remains dogs and ground-penetrating radar). Most remarkably, Lambert’s podcast not only reawakened public interest in Smart’s disappearance, but also brought in new witnesses from the woodwork. Lambert’s dogged perseverance, intelligent analysis, and commitment to finding out the truth earned him the trust of the surrounding community and of law enforcement, and it looks like the police greatly benefitted from his work.

Throughout the entire lifespan of the case, there was only one viable suspect in Smart’s disappearance: fellow student Paul Flores, who helped an inebriated Smart get home from a party and was the last person to see her alive. Flores and his parents acted evasively and suspiciously over the years; Lambert’s investigation revealed that Flores was a predator who made women uncomfortable before Smart’s disappearance and, years after the event, a prolific rapist of multiple women. As Lambert provocatively posited in the podcast, Flores would have to be the unluckiest man alive for Smart’s disappearance to have been a coincidence.

Smart’s body was never found, but there was some evidence of human remains at Flores’ father’s house. The San Luis Obispo DA decided (thanks in great part to Lambert’s work and the evidence unearthed by the podcast) to charge Flores with murder and his father with being an accessory after the fact (to solve the confrontation problems in trials with codefendants, there were two different juries attending the same trial; I can talk more about this method, and how effective it is in solving Bruton/Gray/Cruz confrontation problems, in a future post). In March, the jury convicted Flores of the first-degree murder of Smart, and he was sentenced to 25-years-to-life in prison. This is a remarkable result given the passage of time and the hurdles in prosecuting no-body homicides.

I recommend listening to the whole podcast–it’s truly one of the better exemplars of this genre. One of the many things I find interesting, though, is the extent to which the existence of the podcast and its centrality to the case played a part in the criminal trial. In an effort to remain objective, Lambert, who recounts the trial in the later podcast episodes, matter-of-factly reports courtroom mentions of his own podcast without editorializing. But the defense (as a defense attorney, I gotta give kudos to Robert Sanger for what I think is undoubtedly a pretty heroic showing of professionalism with a client who is a pure, unadulterated garbage of a human being) repeatedly refers to the podcast and its encroachment on the case. Witnesses are asked about their participation in performative support for the Smarts (such as the entire investigative and prosecutorial team wearing purple, Smart’s favorite color) and about the extent to which the podcast propelled them to step forward. I’m pretty sure there will be arguments aplenty about bias and prejudice on appeal, and I worry that the podcast’s huge contribution to the investigation will seriously backfire.

Which brings me to one of my concerns about new media and law enforcement in general: Overall, I’ve been really impressed with the power of podcasts, especially their contribution to diversifying and enriching the victims’ rights movement. But is it time to have a sit-down, perhaps at CrimeCon, and set up some ethical rules, or best practices? Not everyone is Sarah Turney or Chris Lambert, not everyone does their homework in a dogged, meticulous way, and I worry that the need to come up with provocative encounters, confront suspects, dig up drama, etc., might backfire especially when podcasts finally succeed in greasing the wheels of the criminal process. Some things I think are worth considering are:

At what point should podcasters who are not themselves related to the victim reach out to the victim’s family? Is it ever okay to produce a podcast that the victim’s family does not support? What if the podcast casts suspicion on the family itself?

What kind of relationship should podcasters foster with the police? At what point should they hand evidence over to the police? Is this relationship akin to the police’s communication with traditional journalists?

Who owns footage obtained and produced by podcasters? Is there ever some sort of evidentiary privilege akin to the one granted to traditional journalists?

How much verification is required from podcasters (say, by contrast to police detectives checking alibis or triangulating evidence)?

What are the rules of engagement when reaching out to suspects? If podcasters take risks, how, and to what extent, does the police need to support and protect them–especially when law enforcement does not think that confronting the suspects is prudent?

Do podcasters have responsibility for the public chatter generated around the podcast? Wild theories, blame casting, and garden-variety shitposting that might happen, including, for example, posts that disparage the victim and/or their family?

What are the considerations that govern the way in which the story is told? For example, is it ethical to refrain from disclosing certain incidents/developments out of artistic concerns, or to make the narrative more dramatic and engaging? And what about the tone of reportage? Some of these podcasts (emphatically, NOT Lambert’s or Turney’s) have a humorous, flippant tone–is that something that should be frowned upon, especially if the victims’ families are not on board?

I’m interested to hear from you what other concerns/thoughts you have about these podcasts. And let’s keep tabs on the appellate process in the Flores case.

Comment: I’m still in Israel by my dad’s bedside – I write just to have a placeholder for ideas that pop in my head during my morning run before I head to the hospital every day. Please, no cumbersome professional requests during this trying time for me and my family.

Richard Glossip’s Execution On Hold Again; and Wrongful Conviction Shenanigans

A horrendous Talmudic story tells of a wrongful conviction and its aftermath. Against the backdrop of the bitter civil conflict between the Phrarisees and the Sadducees,[1] Rabbi Yehuda ben Tabbai, who was President of the Sanhedrin, looked to score a political point by sentencing a conspiring false witness from the rivaling faction to death. It turns out, however, that he was mistaken, and his Sanhedrin counterpart, chief justice Shimon ben Shatah, quoted the appropriate rule:

Conspiring witnesses are not executed unless they are both found to be conspirators; if only one is found to be a conspirator, he is not executed. And they are not flogged if they are liable to such a penalty, unless they are both found to be conspirators. And if they testified falsely that someone owed money, they do not pay money unless they are both found to be conspirators.

Hagiga 16:2

But it was too late; the witness had already been executed. Rabbi Yehuda admitted his mistake and would never again rule on a legal point except in the presence of Shimon ben Shatah. Some sources claim that he consequently yielded his Presidency of the Sanhedrin. And his remorse was grave:

All of Yehuda ben Tabbai’s days, he would prostrate himself on the grave of that executed individual, to request forgiveness, and his voice was heard weeping. The people thought that it was the voice of that executed person, rising from his grave. Yehuda ben Tabbai said to them: It is my voice, and you shall know that it is so, for tomorrow, [i.e., sometime in the future,] I will die, and my voice will no longer be heard.

Hagiga 16:2

Looks like folks on the Oklahoma Court of Criminal Appeals [2] could take a page off Yehuda ben Tabbai’s book. My colleague Roy Peled just sent me the astonishing news that Richard Glossip–yes, the petitioner in Glossip v. Gross whose petition against the use of midazolam was rejected by the Supreme Court–has just had his execution halted. The CNN story exposed me to something I had not realized when reading the SCOTUS case: Glossip is widely believed to be innocent and Oklahoma’s Attorney General, who reviewed the case, does not stand behind the conviction. Here’s more on this (the italics are mine):

The latest round of litigation was brought to the Supreme Court by Glossip, with the support of the Oklahoma Attorney’s General office, who asked for his May 18 execution to be set aside.

The emergency hold on his execution will stay in place while the justices consider his request that they formally take up his case.

Glossip has maintained his innocence, having been convicted in 1998 of capital murder for ordering the killing of his boss.

A review launched by Oklahoma Republican attorney general found that prosecutors had failed to disclose evidence to Glossip that they were obligated to produce and that the evidence showed that the prosecutors’ key witness – the supposed accomplice of Glossip’s who committed the murder – had given false testimony.

Despite Oklahoma’s assertions that it could no longer stand by Glossip’s conviction, the Oklahoma Court of Criminal Appeal declined Glossip’s request that his execution be halted.

In their filings with the US Supreme Court, Glossip’s attorneys argued that – in addition to the obviously irreparable harm he would suffer if the execution moves forward – Oklahoma “will also suffer harm from its Department of Corrections executing a person whom the State has concluded should never have been convicted of murder, let alone sentenced to die, in the first place.”

Query: how is it possible that, despite the state’s inability to stand by the conviction, Oklahoma’s supreme appellate instance thinks that executing Glossip is fine?

Answer (via the Associated Press): Glossip’s case “has been thoroughly investigated and reviewed,” with Glossip given “unprecedented access” to prosecutors’ files, “Yet he has not provided this court with sufficient information that would convince this court to overturn the jury’s determination that he is guilty of first-degree murder and should be sentenced to death,” according to the ruling written by Judge David Lewis.

So much to be amazed at here, not the least of which is that the issue of Glossip’s actual innocence didn’t quite come up in Glossip v. Gross. There, just a brief time after midazolam played a horrendous part in the botched execution of Clayton Lockett, Justice Alito saw no problem with continuing to use it in Oklahoma executions, because Glossip couldn’t show that Oklahoma had a better option that midazolam (what kind of an argument is that? Is he a chemist? And anyway, do you know what’s better than midazolam? Death penalty abolition, that’s what). But at no point did the decision venture into actual innocence territory, which makes me wonder: would SCOTUS be less tolerant of midazolam if they were aware that Oklahoma’s top prosecutor is unwilling to stand by Glossip’s conviction? Not that questions of humane execution should be decided on the basis of innocence or guilt, but looking at this from the perspective of death penalty supporters who believe it is administered fairly, wouldn’t a credible wrongful conviction claim give you pause? Not even a bit?

Then there’s Oklahoma’s Criminal Court of Appeals, which seems unperturbed by a conviction that the state itself finds worrisome enough to disavow. Is finality really that important?

Let’s keep tabs on this case as it progresses.

[1] At some point I’ll write more about this bitter conflict – I’m reading Flavius Josephus’ commentary on the last days of Judah, and finding it an astute, sobering analysis of social movements, civil conflict, mainstream/radicalism discord, and the destructive force of church/state disputes.

[2] Oklahoma is unique in that its Court of Last Resort is split into two courts: the Oklahoma Supreme Court handles civil appeals, and the Oklahoma Court of Appeals handles appeals from the District Courts. For more, see here.

An All-Male Jury for a Groper and the G2i Problem

The Gemara relates: Rav bar Sherevya had a trial pending before Rav Pappa. Rav Pappa seated him and also seated his litigant counterpart, who was an am ha’aretz (a simple man, not a rabbi). An agent of the court came and kicked and stood the am ha’aretz on his feet to show deference to the Torah scholars there, and Rav Pappa did not say to him: Sit. The Gemara asks: How did Rav Pappa act in that manner by not instructing the am ha’aretz to sit again? But aren’t the claims of the am ha’aretz suppressed by Rav Pappa’s perceived preferential treatment of Rav bar Sherevya? The Gemara responds: Rav Pappa said to himself that the litigant will not perceive bias, as he says: The judge seated me; it is the agent of the court who is displeased with me and compelled me to stand.

Shevuot 30b

Understandable outrage is brewing among many folks around me: At a San Francisco trial of a man accused of stalking and groping women, all the jurors are male. How could this happen? And is it lawful? Let’s go over some terminology:

  • Population: everyone who lives in the county.
  • Sampling frame: the group of people from which one can draw a sample. For our purposes, the folks whom the law deems eligible to serve on juries in the county.
  • Venire: Everyone who received summons to appear for jury selection (the selection process itself is called “voir dire.”)
  • Panel: The people who are eventually seated on a particular jury.

The constitution requires that the jury be drawn from a “fair cross-section” of the population: in other words, that the jury pool–the overall sampling frame from which people are summoned for the venire–be reflective of the population. If some recognizable minority group is systematically disqualified from serving, the selection method is unconstitutional. In the landmark case Taylor v. Louisiana, the Supreme Court invalidated a jury selection scheme by which women were not summoned at all to the jury pool unless they explicitly chose to opt in. Similarly, schemes like Texas’ “key man” system, where there’s some official who gets to pick and choose who’s on the jury (and thus, for example, underrepresents Mexican-Americans) have been invalidated.

Having a sufficiently diverse jury pool, however, does not guarantee the empaneling of a diverse jury. Consider the following example: you have 100 pebbles, 50 of which are gray and 50 of which are purple.

The statistical odds of drawing a purple pebble are 0.5, which means that, in a random selection of 12 pebbles, the stats predict you have great odds of having a mix of gray and purple pebbles. But you can easily imagine many random drawings that will only include gray pebbles.

This is exactly what happened here, except for an important fact: the twelve jury members were not drawn at random. Annie Vainshtein and Nora Mishanec reported for the Chron:

During jury selection, some women said they could not impartially weigh the evidence that would be presented at trial due to personal experiences with sexual assault or harassment, or negative feelings toward Hobbs’ attorney, which prompted Superior Court Judge Harry Dorfman to dismiss them.

Others from the pool were unable to serve on the jury for different reasons; one woman said she had booked an upcoming cruise. Several jurors, one of whom was male, were dismissed after expressing opinions including that “sexual predators” should be segregated from society, and even face the death penalty. 

By the end of jury selection, the only woman selected was an alternate juror, who will hear all of the evidence but vote on the verdict only if needed.

Here’s the thing: robust social science research tells us that, when looking at groups of people in the aggregate, people’s life experiences and worldviews, which are often a function of their demographics, impact how they will assess evidence and judge a case. Which is why, even without resorting to the services of expensive trial consultants, prosecutors assume that people of color will be favorable to the defense, and defense attorneys assume that white men will be more punitive. The name of the game in voir dire then becomes getting rid of as many people whom you suspect will be unfavorable to your side. The problem is that, even though we can make these generalizations regarding groups, we have a deep social distaste about making them regarding individuals: people generally recoil from being told that they must think a certain way because of who they are, even though in the aggregate we know such statements to be true. This is why one can’t mount a for-cause challenge for disqualifying a woman, any woman, from the trial of an alleged stalker/groper just on the basis of her sex/gender. In science, it’s known as the group-to-individual (G2i) problem, and it affects various areas of legal decisionmaking.

Over the years, parties have tried to skirt this problem by using peremptory challenges to get rid of demographics they suspected of being unfavorable to them; the advantage of this strategy was that peremptories didn’t require an explanation. But the Batson doctrine allows the opposite party to challenge such use of peremptory challenges when they reveal a pattern of discrimination against a suspect racial or gendered group. It used to be the case that all the prosecution had to do was provide a race neutral explanation for their challenges (which, admittedly, would be difficult if there was evidence to refute this.) Now, California’s new peremptory challenge laws, enacted through AB 3070, make it a lot more difficult to get away with this sort of thing, because the prosecution’s explanation has to be reasonable, and it also cannot correlate with a seemingly race-neutral explanation that strongly correlates with race, gender, or any other suspect category.

But this is not what happened here! The women were dismissed using for-cause challenges because they directly opined that they would not be able to impartially weigh the evidence. This I find dubious (though not impossible) and it leaves me with serious discomfort. To drive home the problem, consider the following analogy: assume a white police officer is on trial for shooting and killing an unarmed black man. Imagine that, at jury selection, every single black prospective juror says that they would not be able to impartially weigh the evidence and, consequently, we end up with an all-white jury. Does this pass the “fair cross section” test? Yes–there were people of various races in the jury pool. Does this pass the Batson test? Sure! No peremptory challenges were used; everyone who was struck was struck for cause. Are you comfortable with the outcome?

How could this have been fixed? First, I think that prospective jurors can and should trust their ability to make good decisions with the life experience that they have. Like 50% of the people on the planet, I have been sexually harassed, catcalled, groped, pestered for sex, and other fine experiences. Does that mean I would not be able to seriously consider the possibility that a person who did this to others was severely mentally ill, or that there was an eyewitness identification problem? I worry that the emphasis we put on group identity in contemporary discourse has locked people into beliefs that they are immutable members of whatever demographic they belong to and there’s nothing more to them, and that is impoverishing and disappointing. Second, I think the onus here was on the prosecution to ask the prospective jurors questions that would probe the extent of the bias. For example, I think a fair question would have been, “would your experience with harassment lead you to find someone guilty even if there was defense evidence that the police got the wrong person, or even if there was persuasive psychiatric evidence that the defendant didn’t know what he was doing?”

If such a stunning number of women find themselves unable to fairly adjudicate a sexual harassment case, then the root of the problem here is not the jury selection process itself. It is the fact that harassment experiences in public space are so common and far more malignant than people think. In her book License to Harass, my colleague Laura Beth Nielsen exposes the unbearable lightness of offensive speech in public space and the many insidious ways in which it affects people’s everyday lives and decisions. It turns out that even behaviors that might not be a big deal on a one-off basis can add up to the point that people are so fed up with them that they don’t feel they can be objective on a jury.

If that’s what happened here, it’s a damn shame. Because the irony is that the very fact that there are many other people like this guy (who maybe just yell obscenities, rather than grope, and thus completely escape public censure) is what makes it impossible to adjudicate this guy by a true jury of his peers, which should include women.

How to Address Pseudo-Police Lethal Force?

There’s understandable community upheaval about a recent tragedy that rocked downtown San Francisco: A security guard at a downtown Walgreens store shot and killed Banko Brown and, the D.A. decided, will not be facing criminal charges for homicide. In this CBS-5 story, I explain what is happening to the extent I can, not having seen the evidence.

Why is the D.A. not pressing charges? The D.A.’s office has issued a statement according to which, having viewed the store’s video footage of the incident, they find that “[t]he evidence clearly shows that the suspect believed he was in mortal danger and acted in self-defense” and that, while Brown’s killing was a “tragedy,” “[they] cannot bring forward charges when there is credible evidence of reasonable self-defense. Doing so would be unethical and create false hope for a successful prosecution.”

How do they establish if someone acted in reasonable self defense? According to California’s model jury instructions (CALCRIM), a defendant prevails on self defense if they used force against another person while (1) reasonably believing that they, or someone else, “was in imminent danger of suffering bodily injury,” (2) reasonably believing “that the immediate use of force was necessary to defend against that danger,” and (3) “used no more force than was reasonably necessary to defend against that danger.” Note that it’s not enough that someone subjectively believes they are in danger; you prevail on this defense if a reasonable person in your shoes would’ve felt the same. The question of proportional force is also one on which there could be disagreement.

Hold on, why is this even a self defense issue and not a lethal force issue? The rules on lethal force apply only to government agents: federal and local police. The Fourth Amendment offers people protection from unreasonable search and seizure by the government. This is not the case here. The Walgreens security guard was, indeed, armed and working, but he was working for a private company. That’s why the D.A.’s office is viewing this incident through the lens of self defense, which applies to any altercation between two private people.

Shouldn’t we hold security guards and other pseudo-police officers, like private patrols, to a higher standard? I think that’s an excellent question, especially with the proliferation of private policing of all sorts. This is also far from the first time that someone was shot to death by private security personnel (see here, here, here, and here, to name just a few.) My friend Sarah Fielding, now the managing attorney at Legal Services of Northern California, once wrote a fantastic paper about neighborhoods who crowdfund for private security, and is interviewed in this fantastic Al Jazeera piece, where she and others express concerns that more exclusive, wealthy neighborhoods essentially just “send in a check” to fund their own justice, which disproportionally targets outsiders. All of these are serious problems that raise grave concerns. But the Fourth Amendment only applies to government agents and there’s precious little we can do about that.

If this is truly nothing more than a conflict between two private people, why all the political upheaval? Obviously, despite the fact that the shooter was not a police officer, the nature of this incident makes people see it through the lens of community outrage about police overreach. I’m seeing echoes of this even in Aaron Peskin’s reported entreat that the D.A. reconsider. People are falling into the predictable camps: pro-law-and-order, dismayed-of-downtown-chaos folks who support the D.A. and explain how sick they are of the robberies and petty thefts that have scared away many major retailers from the downtown areas, support the decision not to prosecute and see it as a victory for public safety. On the other hand, abolish-dismantle-repeal folks who, in accordance with the usual progressive punitivism protocol, think that we should not harshly enforce the law except against those we dislike (cops, guards, right wingers), see this as further evidence that Jenkins is making charging decisions that further oppress the oppressed. We don’t have the evidence, and so we are projecting our overall worldviews about the underlying problems of poverty, suffering, law enforcement, and dilapidation, onto this incident. This is where people’s strong views come from. The lesser the evidence, the more room there is for our worldviews to inform our imaginations.

We know there was only one gun at the scene–the guard’s. In light of this, isn’t it obvious that the security guard committed unjustified homicide? Folks, I don’t know. And neither do you, because we haven’t seen the video footage that the D.A. used to make the determination. For all we know, it might’ve seemed to the guard as if the victim was armed. Or not. We simply can’t know the answer to this without seeing the video.

Fine, then why won’t the D.A. show us the video, so we can be the judge of that? That’s a fair question. The understandable logic is: if it’s really that cut and dry that the security guard was in reasonable fear of his life, why is the D.A.’s office being so secretive about it? Because the public has deep interest in these issues, and in seeing justice done, California law was recently amended to require prosecutorial offices to share footage of lethal police shootings with the public within 45 days. But again, this doesn’t mean a general requirement to share investigative material with the public in any case that involves two private people, as the case is here. And, to be fair to the D.A., I can see some good reasons not to share the footage. We know from prior cases involving video footage of violence, sometimes lethal, that even when people have access to the evidence, their interpretations of what they see depend on their worldview. Fourteen years ago, I saw the cellphone footage of the killing of Oscar Grant and thought to myself, “I’m watching an execution, and there’s no way anyone could watch this video and think otherwise.” And, lo and behold, twelve Los Angeles residents disagreed with me. The D.A. might not want to get into these kinds of controversies if the law doesn’t require them to, nor do they want to incite confrontations and violence against the security guard. Still, it’s hard not to walk away from this with a bad feeling about the lack of transparency.

Then why not prosecute, and let a jury decide if it was self defense or not? Without seeing the video, it’s impossible to answer this question, but it’s definitely a fair one. I will say that the burden of bringing a case to trial is much lower than the burden required for conviction: all the prosecution needs is probable cause, as opposed to the much higher burden of beyond reasonable doubt. The idea is that you go to trial with a minimum of probable cause (the threshold the judge requires at a preliminary hearing) and continue developing the evidence as you go along. But in cases that are very public and sensitive, prosecutors sometimes hold themselves to a higher standard (e.g. Muller’s prosecutions of Manafort et al.) We should also keep in mind that prosecutors have two kinds of considerations that go into charging decisions: instrumental considerations–i.e., will this case end in a conviction and thus be a worthy expenditure of state effort and resources–and expressive considerations, i.e., what do my constituents want and expect. I think Jenkins is as aware of what her constituents want as Boudin was aware of his, and charging decisions will differ accordingly.