Your Own Backyard and the Contamination Risks of Police/Media Symbiosis

On Friday, May 24, 1996, Kristin Smart, a freshman at Cal Poly, attended an off-campus party. By around 2am, Kristin was so drunk that she could not walk unsupported and needed help getting back home. A few friends escorted her part of the way, and one student who was walking with them, Paul Flores, offered to take her to her dorm. From the condition of her dorm room the following morning, it was evident that she had never gotten back, and she has not been seen ever since, nor has her body been found.

After a missing-person report was filed with the campus police on May 28, the San Luis Obispo Sheriff took over the investigation, conducting an extensive search for Kristin, but she was never found. From the very early stages of the investigation, Paul Flores, a poor student on the verge of expulsion who had been reported for stalking by various women, was regarded the prime suspect. Flores initially claimed to have parted with Smart outside her dorm building; at his 1997 interrogation he took the Fifth. At the time, Smart’s family filed a wrongful death lawsuit against him, and the suit has been stayed by judges ever since.

Over the years, a revolving door of Sheriffs took over the investigation, executing numerous search warrants, but there were long stretches in which the investigation lulled. Throughout the years, numerous private parties and entities (including a man from North Carolina and a local newspaper publisher) attempted to revive the investigation, occasionally sticking flyers near Paul Flores’ house. His neighbors were all aware that he was the suspect in an unsolved murder, and described him as an awkward man who kept to himself except when drunk (which was often), when he became belligerent and physical toward women.

On September 29, 2019, a recording engineer and singer-songwriter named Chris Lambert, who grew up seeing billboards with Kristin Smart’s image on them, decided to delve into the case and started a podcast called Your Own Backyard. The first episode features a conversation between Lambert and the Smart family, in which they give him their blessing for his project. In Episode 2, broadcast on October 6, he identifies Flores as the only suspect in the case. The first ten episodes of the podcast covered the events before and after Smart’s disappearance, and offered some additional information: Flores’ involvement in several violent rapes and sexual assaults in the years since the murder, neighbors’ reports of his parents’ suspected involvement in burying and/or moving the body, and incriminating statements Flores was said to have made to fellow skaters at the skate park. Among the most striking testimonies Lambert was that of a coworker of Paul’s mother, Susan Flores, recalling that the mother had complained one night about not sleeping well because her her husband, Ruben Flores, had gotten up and left their home after receiving a call. Even more striking was the second claim: a former tenant in Susan Flores’ home heard an alarm sound at 4:20 a.m. daily — possibly a wakeup alarm Smart set since she used to report to her job as a lifeguard at the Cal Poly pool at 5 a.m, suggesting that Smart, or her belongings, were buried in the mother’s backyard at least for that time.

In February 2020–a few days after Lambert broadcasted an interview with the Sheriff–the authorities executed search warrants at four locations in California and Washington State, including at Paul Flores’ home, and recovered various “items of interest.”

On November 25, 2020, Lambert broadcasted an episode titled “The 16-Hour Gap,” in which he examines, in great detail, Flores’ movements during the weekend around Smart’s murder. The episode stops shy of making speculations, but does present facts that suggest a body being moved using a truck that had its truck bed replaced.

In March 2021, investigators used cadaver dogs and ground-penetrating radar to search Ruben Flores’s back yard in Arroyo Grande, finding some indications of human DNA too old and corrupted to test. A month later, on April 13, 2021, Paul and Reuben Flores were both arrested; the son was charged with murder and the father of being an accessory after the fact. Lambert reported on these developments in two episodes released on the same day (July 6, 2021), titled The Beginning of the End 1 and 2.

The son and father were tried jointly in Monterey County (there was a change-of-venue motion) with two sets of juries, which facilitated the introduction of out-of-court statements and other evidence that would be admissible only against one, but not the other (this solves the codefendant confession problem posed by the Confrontation Clause and obviates the need to sever trials.) Lambert, who attended the trial but obviously could not broadcast from within the court, continued to make and broadcast podcast episodes about the trial throughout its 10 weeks, which along with some concluding interviews with the prosecutors, some of the jurors, and the Smart family, add up to 17 additional episodes. Flores was convicted and, in Marc 2023, sentenced to 25-to-life; his father was acquitted.

The trial revealed the extent to which the police and Lambert collaborated in the last, fruitful investigation. Lambert was on location when pivotal events, such as the execution of search warrants, occurred; he could not have known about these had he not been notified by the police. Moreover, the probable cause needed for executing those warrants came from testimony gathered by Lambert, not by the police.

The latest news are that, in late October 2024, Flores filed an appeal. KSBY reports that the appeal is based, at least in part, on jury contamination issues. Juror 237, the brief argues, had several anxiety attacks during the trial, for which she blamed the defense attorney, and even revealed to the bailiff “that her neutrality had begun to waver.” The reporting now describes the juror as number 273, but it seems like they are referring to the same person; the brief further indicates that:

[J]uror No. 273 admitted she knew people who listened to a viral podcast detailing the case, but that she discouraged discussion with those people about the matter. The defense counsel claimed the juror’s comment indicated that she had discussed her involvement in Flores’ trial and requested her removal for a fourth time. However, the brief states the trial court denied the request, saying that “it would be strange if no one knew why” juror No. 273 had missed an extensive amount of work due to the trial.

These allegations raise concerns about jury contamination, which are rooted in the fact that closing arguments–and some of the questions during witness examination–mentioned “the podcaster.” I worry very much that Lambert’s thorough, hard work might become the victim of its own success, and that the concerns about jury contamination could support this appeal.

The most painful part of this affair is that, in the years following Smart’s disappearance, Paul Flores turned out to be a terrifyingly violent man, who has been investigated for dozens of rapes, with three incidents–one in Redondo Beach, two in Los Angeles–almost leading to prosecution, but ending with nothing for reasons that are vaguely given in this LA Times article and that I simply cannot comprehend. The DNA found in the rape survivors matches his. In a 2020 raid of his home, police found a computer file named “Practice,” which contained video evidence of numerous instances in which Flores raped and sodomized women, many of them clearly appear unconscious. These videos, and plenty of evidence about his previous efforts at intoxicating women and then raping them could be offered at any sexual assault case against him as an exception to the evidentiary rule against former criminal behavior, because the incidents are so similar that they might as well be his calling card. If released following a successful appeal, and absent a merited and justified prosecution for the unrelated rapes, Flores, who is now in his late forties, would still be capable of violently assaulting women. This is exactly the opposite of what Lambert, and everyone who cooperated with his project, would want as an outcome.

Immersion: Three Cautionary Tales of Podcasts and the Criminal Process, Part I: Introduction

I love podcasts. I think a lot of people do, for reasons that have to do both with succumbing to the cultural moment we are in and feeding the parts of our souls that yearn to get away from said moment. They offer a refreshing contrast to the binge/stream quality of Prime, Netflix, et al, to the immediacy of the multisensory assault on our imagination and emotional independence. Listening to a crime podcast does not result in the cognitive hangover that I get from watching a three-part crime documentary. In many ways, it is a medium those of us who were radio-struck grew up with; every summer day, in the early afternoon, I used to listen to classic children’s literature, read on the radio by Israel’s best storytellers. That’s how I was introduced, for example, to The Hound of the Baskervilles, and fell in love with Sherlock Holmes. In that respect, experiencing a story by hearing it is not new. Nor is podcasting itself new–the pioneering examples appeared in 2005. But there are some important things that make podcasting in the last decade or so somewhat different. For one thing, the possibility of producing a podcast democratizes content creation and sharing: podcast listeners become podcast producers, adding not only to the proliferation of the medium but also to the diverse perspectives represented. In presenting a personal perspective–speaking intimately, straight into the ear of a listener–podcasts have a self-reflexive, self-conscious element that radio shows never had. In the context of identities, and the role they play in media brand building, podcasts can be “an expression of cultural otherness – an outsider-ness – providing an expressive outlet for those unable to be heard, and a meaningful cultural nexus for those outside of mainstream radio listener communities.”

Ever since Serial, the first crime podcast–really, the first podcast ever, I think–to go viral debuted, I’ve noticed the vast popularity and influence of the medium. We know that consumption of podcasts and crime documentaries alike heightens fear of crime and produces crime-prevention behaviors, though many people believe that listening to these materials innoculates them against fear of crime. While people who listen to crime podcasts also watch crime documentaries–entertainment choice is more a function of genre than of medium – long-form investigative podcasts are especially immersive: they are aural, of course, which gets our neglected imagination the workout it so needs and craves, and the serial structure of the podcast gets you hooked and anxious for the next “fix”. In that respect, true-crime podcasts are a true medium-message marriage. As Paul Kaplan and Daniel LaChance explain in Crimesploitation, engaging with true-crime content is seductive because we get sucked into participating in morality tales, mocking the unfortunate, marveling at them, and at times rooting for them. Exploring that already immersive genre through an immersive medium is what makes these podcasts so powerful.

There’s plenty of research that critically examines how these podcasts frame crime stories, characters, offenders, exonerees, and victims, with attention to race, gender, and other rubrics. Some of this research criticizes the medium for minimizing, or even sensationalizing, trauma; some of it shows that they tend to portray law enforcement in a negative light. My interest in this project is in examining the ways in which the medium engages with the official criminal process.

It’s hard to argue with the fact that podcasts have drawn public attention to cases widely perceived as miscarriages of justice, and that the vast public interest resulting from the podcast has propelled the criminal process forward by reopening cold cases and/or fueling arguments for postconviction review. It’s also hard to argue with the fact that, while quality varies considerably among podcasts, there are good people doing serious work, investing effort in obtaining primary sources, and doing dogged journalism the way old-school journalists would. What gets less attention, I think, is the question how case coverage by a podcast can affect ongoing police investigations and subsequent legal proceedings, and this is where I think there’s room for rethinking how we do things. It’s not going to be possible to regulate who gets into podcasting and how they do what they do; podcasters are private people with First Amendment rights. Moreover, the U.S. does not have a sub judice rule, which gives people a lot more freedom to comment on ongoing legal proceedings. Nevertheless, at least shining a light on the possible problems that can ensue from the presence of a popular podcast in the legal arena might be valuable in that it might help the true crime community articulate some sort of minimal “best practices”.

The heart of the problem lies in the fundamental mismatch between the journalistic project and the investigative/adjudicative one, which has five different aspects: the goal of finding out what happened vs. the goal of collecting evidence; the goal of dogged pursuit vs. the goal of acting within constitutional restraints; “taking sides” and speculating as a narrative choice vs. as a legal obligation; outreach and accessibility as an asset vs. as a problem; and the construction of finality as the arrival at factual vs. legal truth.

I’m going to go about this in several installments. The first order of business is to relate the story of three extremely popular podcasts and the legal aftermath of the cases they examined: Sarah Koenig’s Serial and Adnan Syed’s postconviction review of his conviction for the murder of Hae Min Lee; Voices for Justice and Sarah Turney’s investigation of the disappearance of her sister, Alissa Turney, of which Sarah accused her father, convicted explosives hoarder Michael Turney; and Your Own Backyard, Chris Lambert’s investigative podcast of the disappearance of Kristin Smart and the subsequent trial of Paul and Reuben Flores for her murder. I’ve already written my thoughts about the latest legal developments in the Syed trial, and have yet to comment on the other two. In all three cases, the ensuing problems were not an issue of unprofessional journalism or ineptitude; all three works are examples of detailed, responsible hard work by podcasters, in one case the victim and suspect’s family member and in another a podcaster working closely with the victim’s family. In all three cases, the legally requisite disclaimers were made. However, I argue that all three podcasts were victims of their own success because of the aforementioned fundamental mismatches between the journalistic project and the adjudicative one.

After discussing all three cases, I want to address the aspects of the mismatch one by one, explaining the ways in which podcasting is compatible and incompatible with the legal process–at both of the latter’s phases, but more so at the adjudicative phase than the investigative one.

Based on the issues I generalize from the podcast, I plan to try and propose an ethical code for true crime podcasters, as well as some best practices for police officers and lawyers operating alongside podcasters in the criminal law field. I suspect some of the incompatibility between journalism and law is unavoidable and will continue to plague cases highlighted by podcasts. I also want to talk a bit about what these podcasts do to cases that are *not* covered by podcasts.

Peculiar Murders: b.Sanhedrin 77

PROFESSOR CALLAHAN:Ms. Woods, would you rather have a client who committed a crime malum in se or malum prohibitum?
ELLE: Neither.
CALLAHAN: And why is that?
ELLE: I would rather have a client who’s innocent.
CALLAHAN: Dare to dream, Ms. Woods. Ms. Kensington, which would you prefer?
VIVIAN: Malum prohibitum. Because then the client would have committed a regulatory infraction as opposed to a dangerous crime.
CALLAHAN: Well done, Ms. Kensington. You’ve obviously done your homework. Now let us look at malum prohibitum a little more closely. It has been said…
He sees Elle’s raised hand.
CALLAHAN: Yes, Ms. Woods?
ELLE: I changed my mind. I’d pick the dangerous one ’cause I’m not afraid of a challenge. –Legally Blonde

One of the mainstay features of the first year of law school is an assortment of bizarre hypotheticals about unusual murders. The reason law professors make up these strange scenarios is to train students in understanding principles of action, omission, and especially indirect causality–an unsavory but effective way to develop lawyerly thinking. Much as I understood the pedagogical value of this stuff, I kind of recoiled from inculcating people with outlandish scenarios when the bread-and-butter cases they would encounter in practice called for more attention; this is partly why I taught substantive criminal law very differently in 2005-2006 and much later, in 2012. But Talmudic sages live for this stuff, because they feel an obligation to build a towering shrine of logic for every word in the Torah and in the Mishna, and the latter source holds that a murderer is to be decapitated. So, here come mountains of expounding on who counts as a murderer and who does not.

At common law and most U.S. jurisdictions, a person is culpable of homicide by act or omission (the omission must come with a duty to act; there is no inherent duty to save every person on the planet, only those whose dangerous situation you created or to whom you owe special care by contract, statute, or relationship). For one’s act or omission (A) to cause another’s death (B), A has to happen before B, and it must also be established that: had A not occurred, B would not have occurred, and there is some proximity in time and circumstances between the two.

As you’ll see from the following examples, the Talmudic causality logic is pretty straightforward, and very similar to the common law rule. A person is culpable of murder if he strikes the victim with a stone or with iron (any size is lethal, says Shmuel), or holds a victim underwater or in a fire (unless the victim can extricate himself but for some reason does not). Siccing a dog on a victim is murder, but according to some, doing the same with a snake is not (as the snake has a mind of its own). If A pushes B under water, but C holds B down, C is responsible for the murder. It even might be possible that A is not responsible, if his contribution ws not the lethal one.

What if A exposes B to the elements, and B dies of natural consequences (e.g., confined to a hot place and dies of heat, or tied up and dies of starvation)? The causation here is indirect, as the immediate cause of death will appear to be “natural”, but of course there is criminal accountability here, as it is the action of the murderer that creates the conditions for the natural cause of death. It is, however, crucial to figure out whether exposing B to the dangerous situation guaranteed the lethal outcome. According to Rava, for example, tying a person in front of a lion is not murder (the lion might not be hungry), but in front of mosquitoes is (they will inevitably bite). According to Rav Ashi, even the mosquitoes have a choice.

A dispute between Rava and Rav Zeira involves a situation in which A overturns a vat on B, and the latter dies of suffocation. The redaction is unclear about who thought what. Some believe Rava would acquit, because he would also exempt A from tying up B who dies of starvation. Others believe Zeira would acquit, because he woudl exempt A from putting B in a sealed marble house unless he lit a lamp emitting poisonous fumes in it (an issue of proximate cause).

A few more scenarios follow, which are trying to get at problems of indirect causality (what today’s criminal law scholars would call “lack of proximate cause” but, at least to me, the logic does not track well, and is certainly less persuasive than the previous round:

  • A pushes B into a pit with a ladder. Later, C removes the ladder (or even A removes the ladder himself). The sages acquit A, because at least initially, B could have used the ladder to escape.
  • A shoots an arrow at B, who holds a shield. If, after the arrow was shot but before it reaches its target, C removes the shield (or even A somehow traverses the time/space continuum and removes the shield), A is to be acquitted, as when he shot the arrow B was still shielded.
  • A shoots an arrow at B, who holds medicinal herbs that can heal the wound. If C snatches the herbs from B (or even if A snatches them) before he can heal, A is exempt, as when he shot the arrow B could have saved himself.
  • The latter scenario, says Rav Ashi, holds true even if B didn’t hold the herbs, but they were available at the market.

The page ends with some examples that have to do with dangerous items that rebound:

  • A throws a stone to kill B. The stone rebounds off a wall and kills C; A is accountable (this is known in modern criminal law as “transferred intent.”
  • Same story if A, B, and C play ball, which rebounds and hits D. If they intended to hit D, they are culpable (as a silly aside, if they did not intend to, they can go to exile, for which the term is “golin”, and the association with a goal is, at least for me, inevitable).
  • If A throws a ball that hits B within four cubits (אַמּוֹת) of A’s location, A is not culpable, as it was not his intent to throw the ball such a short distance–though other dispute this and say that intent governs the outcome, regardless of distance.
  • The outcome of rebounding and diverting objects has to do with the expected physical outcome of the action. If A diverts water from its course and the flow kills B, A is liable if he exercised enough force, or diverted the water, with sufficient pressure to kill. Similarly, if one throws an object up, the object is bound to come down, but if it takes some unexpected turn to the side and kills someone, the thrower is not liable.

This concludes page 77, which carries both me and you through the end of Tuesday, by which time my busy solo parenting will come to an end and we can resume on Wednesday with page 78 right on schedule with the rest of the Jewish world. More basic homicide law to come, so stay tuned. Happy rosh hodesh (beginning of the Jewish month) and Shabbat Shalom!

The Limits of Propriety: b.Sanhedrin 75-76

Our new sugiyah, וְאֵלּוּ הֵן הַנִּשְׂרָפִין (“and these are to be burned”), is a compendium of substantive criminal law rulings debating the definition of offenses punishable by burning and by beheading. The first page and a half, to which we turn here, addresses people committing various forms of incest and thus liable to be burned.

We’re not going to go into all the details, but we’ll discuss two principles of statutory interpretation employed by the sages to figure out which familial relationships pass the test of propriety and which do not.

Logical Inferences from Other Contexts: Dun Mina – דּוּן מִינַּהּ

This Talmudic rule has to do with situations in which the appropriate rule for a situation that appears in Context A of the Talmud is derived via analogy from a situation that appears in Context B. Oftentimes, this has to do with a similar turn of phrase. For example, in our issue, the appearance of the term ״זִמָּה״ (lewdness) in different rules leads the sages to infer that if one sexual liaison is forbidden, so is the other. Thing is, these sorts of prohibitions are very common in the biblical and mishnaic text, and they appear in a variety of contexts.

Let’s assume that we need to figure out what the rule is in case 1, which appears in the Talmud in context A. Case 1 shares some unique linguistic feature with case 2, which appears in context B–and we know what the rule in case 2 is. Because of the similarities, we assume that the same rule applies to case 2. But it turns out that there are all kinds of details and adjacent issues in context A that relate to case 1. Should these be resolved according to context A, in which our case is embedded, or in context B, from which we learned the rule? There are two approaches:

  1. Dun Minah u-Minah (״דּוּן מִינַּהּ וּמִינַּהּ״) is a situation where not only the rule in case 1, but all the relevant details, should be derived from context B, because that’s where we learned the rule (by analogy from case 2).
  2. Dun Minah ve-Okay be-Atrah (״דּוּן מִינַּהּ וְאוֹקֵי בְאַתְרַהּ״) is a situation where we learn the rule in case 1 from case 2, but the extant details are deduced from context A.

As above, so below

The page deals with lots of relatives from earlier generations and from later generations. In several of these scenarios, we are told that the rule going upward in the family tree must mirror the rule going downward; e.g., the prohibition on getting involved with, say, one’s great-granddaughter implies a prohibition on getting involved with, say, one’s great-grandmother.

***

As an aside, the page also admonishes people who sabotage their daughters’ lives by marrying them off inappropriately. A baraita says, ״אַל תְּחַלֵּל אֶת בִּתְּךָ לְהַזְנוֹתָהּ״ (do not prostitute your daughter), and the sages think that an inappropriate marriage can set the stage for this lamentable situation. Rabbi Eliezer thinks that a man who marries his daughter to an old man is profaning her; Rabbi Akiva thinks that it is also inadvisable to delay the marriage of a grown daughter. Rav Yehuda adds the scenario of marrying a young woman to a young boy. They all agree that the righteous way to prevent unhappiness and tragedy is to marry daughters to appropriately-aged men, and at the appropriate time.

Lots more going on here, but much of it is pedantic, lewd, or both, and I’m eager to move along to the interesting matter of causality in murder, which awaits us on page 77.

Reversal of Fortune in Adnan Syed Case and the New Media Issue

Yesterday, Ivan Bates, the Maryland State Attorney, published a report of the office’s investigation into the handling of Adnan Syed’s case. You can read the executive summary here. As someone deeply interested in the promise and pitfalls of new media, especially true crime podcasting, for the criminal process, I read it with great interest.

The Biography channel offers a timeline of the case, of which I’m providing a short summary here. Syed and Hae Min Lee, the murder victim, were a couple in high school, and they broke up in December 1998. Soon after, in January 1999, Lee went on a first date with a coworker from LensCrafters. Lee was last seen on January 13, 1999, leaving school at 2:15pm in her Nissan Sentra to pick up a cousin and head to LensCrafters; she never made either appointment. Her body was found on February 9, 1999, in Leakin Park.

What happened on [the day of the murder] depends on who you talk to. As described by Syed to Serial, he goes to his photography and English classes and then calls his friend Jay Wilds, offering to lend him his car during his lunch period. Wilds then drops Syed back off at school, where he has a free period and then arrives late to his psychology class—it started at 12:50 p.m., but he entered at 1:27 p.m., as his teacher notes.

After class, he goes to the Woodlawn Public Library to check his email and chats with friend Asia McClain. Then he goes to track practice. Wilds picks him up, and the two go to a friend’s house. It’s while he’s there that Officer Scott Adcock calls Syed asking if he knew where Lee was. The student told the official that “he was suppose[d] to get a ride home from the victim, but he got detained at school and felt that she just got tired of waiting and left,” according to the 2019 appeal. Syed then picks up food on his way to meet his dad at the mosque for evening prayers, Serial reported.

Meanwhile, Wilds’ version of the day changed throughout his interviews and testimony. In his testimony at the second trial, he says that he and Syed drove to Security Square Mall and claims that Syed reportedly told him he was going to kill Lee. That afternoon, he says that Syed asked him to pick him up at Best Buy, where Syed shows him Lee’s body in the trunk of her car. They leave the car at a park-and-ride lot. That night they bury Lee’s body in Leakin Park and leave her car in a residential parking lot.

Following up on two anonymous phone calls pointing to Syed as a possible suspect, and after finding Lee’s car, on February 28, 1999, Syed was arrested and charged as an adult. Shortly after the arrest, McClain, Syed’s alibi witness, wrote a letter to him detailing their library conversation. Syed was tried twice: the first trial ended in a mistrial on December 15, 1999, and after the second, on February 25, 2000, he was convicted and sentenced to life plus 30 years. A month after the verdict, McClain wrote an affidavit at the request of family friend and attorney Rabia Chaudry. Syed’s appeal was denied on March 19, 2003, and his habeas corpus petition was denied on December 30, 2013.

Like many other people, I became interested in the case by listening to the first season of Serial, which debuted on October 3, 2014. While the podcast was being broadcast, Syed had a pending appeal of the denial of habeas, and he managed to get the habeas case reopened in November 2015. The main arguments made at the hearing echoed the weak points of the case as examined in Serial: McClain’s alibi, cellphone tower discrepancies, and allegations of ineffective assistance of counsel and discovery violations from the prosecution. After the hearing, Syed was granted a new trial in 2016; the new trial was then denied in 2019, a decision echoed by the Supreme Court.

In September 2022, then-Maryland State Prosecutor Marilyn Mosby informed the court that the state had lost faith in Syed’s conviction in light of new evidence and violations. A Baltimore City judge vacated the conviction, and a month later, all charges against Syed were dropped. However, on March 28, 2023, a Maryland appellate court reinstated the conviction, as the Lee family’s right to attend the hearing in person was violated, and ordered the court to hold a new hearing. Syed petitioned the Maryland Supreme Court to review the reversal, and on August 30, 2024, the Court upheld the reinstated conviction.

The latest news are that the prosecutor’s office has reviewed Mosby’s handling of the case and has restored its confidence in the original conviction, withdrawing Mosby’s motion to vacate the conviction. The highlights of the decision are as follows:

  • The alleged prosecutorial misconduct in hiding handwritten evidence of alternative suspects was unfounded, as “(1) the notes do not point to any alternative suspects; (2) the individuals that the “SRT” believed to be the alternative suspects were known to the defense; and (3) the notes were likely disclosed to the defense before trial.”
  • The ineffective assistance of counsel accusation against Gutierrez, who represented Syed in the original trial, was unfounded. Contrary to the prosecution’s prior assertion, that Guierrez did not cross-examine the State’s cell phone expert on a disclaimer found in the phone records, the proceeding transcripts show that the State’s cell phone expert was never asked a single question on direct examination – and did not rely in any way – on the cell phone records at issue, but rather had conducted independent testing at 13 separate locations to determine which cell towers were in the range of these locations, and only relied on his notes.
  • One of the main arguments undergirding Mosby’s motion to vacate was the absence of Syed’s DNA on shoes found in Lee’s car, but the shoes were never proven to be Lee’s, and DNA found on the soles could have come from anywhere.

It also turns out that Mosby’s representation to the Court that the office was actively looking for new suspects was false.

I don’t know whether Syed is guilty or innocent of the murder, but I think it’s hard to argue that the reopening of the case in 2015, and certainly Mosby’s investigative energy that culminated in the withdrawal of prosecutorial support of the conviction, was not at least partly attributable to the momentum from the widely acclaimed podcast. FWIW, I thought Serial, which I reviewed at the time, was balanced in raising arguments on both sides of the case; it was the second podcast on the case, Syed family friend Choudry’s Undisclosed, that explicitly sided with Syed. Koenig’s agnosticism about the case was, to my mind, one of its main strengths, and I don’t think there was anything inherently unethical about producing and broadcasting the show while an appeal was hanging.

I do think, as I explain in Rise of the Innocence Podcast, that our recurrence to true crime as a form of entertainment, has resulted in new media reexamining convictions being elevated to the rank of postconviction review. There isn’t a code of ethics for podcasters; anyone, regardless of expertise or moral commitment, can call themselves an “investigative reporter,” and it’s hard to argue, in the Year of Our Lord 5785, that any work of nonfiction–including our daily newspapers–can be said to be 100% objective. Reportage always has a slant, an angle, a frame, and this will apply to the choices made about what to broadcast as well as what not to broadcast. And what worries me is that this can lead to two opposite reactions, neither of which fully satisfies our thinking on the subject.

The first, and it’s not just a trap for credulous people–these things are serious, absorbing, and detail-oriented–it’s very easy to uncritically sway with the intentions, trends, and slants of an engaging, even riveting, podcast. Not everyone who listens to podcasts has the expertise, or even relevant knowledge, to question how the facts are presented, because the facts themselves come from the podcast. For every case covered by a podcast, there are thousands of cases just as deserving of review and revision that don’t get selected, maybe because they don’t involve whatever big political question is salient in the culture at that time, maybe because the talking heads are not interesting enough or their voices are not radiophonic enough, maybe because the evidence is too complicated to unpack in a podcast, maybe for practical reasons of convenience and accessibility. The very fact that a podcast exists does not stand alone in the universe. What is and is not reviewed and covered is hard to address when all you can listen to is what’s on offer, not what is missing.

The second, which I think is just as serious a problem, is that when podcasts are proven to have improperly contaminated the legal process, people could lose faith in the power of the media altogether and revert to the misapprehension that the legal system makes no mistakes and that public interest in, and review of, possible wrongful convictions is a losing proposition. I have been quite worried about this regarding Paul Flores’ appeal of his conviction for the murder of Kristin Smart, whose body was never found. A fundamental factor in reopening the investigation against Flores–always the main suspect but never with enough evidence–was Chris Lambert’s award-winning podcast Your Own Backyard. Lambert dug up heaps of evidence that the police had never found, and at some point during the investigation, it became evident to me as a listener (though Lambert never explicitly said it) that the police were collaborating with Lambert, giving and receiving tips and information, and that the podcast was largely responsible for the reopening of the case. What makes me queasy is that the podcast presents strong evidence that Flores–even if not guilty of Smart’s murder, which I find very unlikely but I’m not a juror-is an absolute scumbag, who violently raped numerous women. If Flores ends up winning this appeal and walking free because an appellate court decides that Lambert’s popular podcast contaminated the police investigation–and I think the defense can mount, and in fact is mounting, a serious case of bias and jury contamination–it’ll set free a terrifyingly dangerous and violent man, and all of Lambert’s work will have made the world a worse place. It may also discourage other journalists from undertaking assiduous, labor-intensive media projects like Lambert’s podcast.

The nimbleness of podcasters–the fact that they can reach people and dig up evidence in ways in which the government, limited by the Constitution, cannot–is also the weakness of podcasts. I wish there was a way to require every person with a microphone to undergo a crash course in criminal procedure and evidence, so that they understand better how their reportage efforts dovetail or conflict with official police investigations, and how to wield their power in responsible ways.


Standing Up to Villains: b.Sanhedrin 73-75

We’re still running a few days ahead of the universal schedule given that I have a few days of solo parenting and soccer league chaperoning ahead of me, and I don’t want any of you to fall behind. I have to say, reading and fully understanding all the twists and turns in each and every talmud page is a lot of work, and it’s amply clear to me what keeps all those Ultra-Orthodox yeshiva bochers busy all day long. I also have newfound appreciation for Orthodox podcasters who deliver fifteen-minute daf commentaries. Listening to the podcasts is like watching paint dry–nay, like listening to paint dry–but the person pre-digests the page for you so you don’t have to and there is real intellectual labor that goes into the product. Our project, though, is different–we’re following the things that are interesting, educational, and relevant to fostering a culture of logic and debate, and setting aside things that are better off tucked away in the Sixth century where they belong. There’s a little bit of both in today’s portion, but on the upside, we’re finishing the Rebellious Son sugiyah today–our second full, completed sugiyah! I even have a sticker for you, but you’ll have to follow along till the end of the post.

In keeping with the Minority Report, karmic-preserving preemptive killing theme from yesterday, the mishna that the sages are commenting on specifies that there are a few criminals for whom we “do the favor” of killing them before they complete their crime, so that they die as (still) righteous people:

מַתְנִי׳ וְאֵלּוּ הֵן שֶׁמַּצִּילִין אוֹתָן בְּנַפְשָׁן: הָרוֹדֵף אַחַר חֲבֵירוֹ לְהׇרְגוֹ, וְאַחַר הַזָּכָר, וְאַחַר הַנַּעֲרָה הַמְאוֹרָסָה. אֲבָל הָרוֹדֵף אַחַר בְּהֵמָה, וְהַמְחַלֵּל אֶת הַשַּׁבָּת, וְעוֹבֵד עֲבוֹדָה זָרָה – אֵין מַצִּילִין אוֹתָן בְּנַפְשָׁן

You may kills those who pursue others to murder or rape them, but not for those who chase animals, violate the Sabbath, or worship idols. But why? I’m not entirely clear whether the gemara is invested in the “defense of others” affirmative defense, which allows you to kill A to save B from death or from rape, or whether this is another iteration of the preemptive karma-saving principle from b.Sanhedrin 72, where you kill A preemptively to save his soul from dying a killer or a rapist. Either way, the example the sages give is what you would do for a friend who is drowning, dragged by an animal, or mugged by criminals; there’s an obligation to rescue in such situations; this is the precursor to the Good Samaritan story, if you will, and to many Good Samaritan laws in modern jurisdictions.

If we buy the straightforward idea that the permission to kill is in order to save the victim, that explains why the gemara requires the rescuer to even hire help to do the rescuing. But that doesn’t explain why, in the next verse, someone proposes that the permission to kill is not given when rescuing, say, a widow from a High Priest (which is not a mortal sin but a mere prohibition). Is it because the latter scenario is not a threat to the widow? Or is it because the High Priest’s soul doesn’t need karmic saving by killing? In any case, you’ll be relieved to know that the sages specify that you must rescue from rape not only men, but also women (lest you think, they helpfully explain, that raping women is “the natural way” and thus not a dire victimization scenario. Ugh.) You’d think that, given that the rescue obligation exists with regard to both male and female victims, the misnah would not need to specify both cases; however, given that the intent is to prohibit killing people who, say, merely worship idols to preemptively save their karma, they do need to specify the cases in which they do grant permission.

I also find it notable that Rabbi Yehuda requires using force to save the girl even if she says, “leave [my attacker] be,” because she’s likely saying that שֶׁלֹּא יַהַרְגֶנָּה, so that he doesn’t kill her–they recognize various scenarios that victims might experience: trying to fight back, or fearing for one’s life so much that you don’t dare fight back. And it’s even more notable that, at least in the case of this page, all of these sentiments seem legitimate to the sages. Still, we’ll leave some of their less enlightened commentary behind, and move on.

Another issue has to do with the proportionality of force. Abaye presents the possibility that the victim can be saved through merely injuring, rather than killing the victim. And Rabbi Yonatan ben Shaul even pushes things further: if such a rescue is possible, and the rescuer nonetheless uses excessive force and kills the attacker, the rescuer is liable for murder. This idea is captured in modern criminal law theory as imperfect self defense.

Another interesting idea is the question of a serious charge subsuming a less serious one. If the pursuer, who is punishable by death, also breaks some dishes in his pursuit, they don’t require him to pay the fine, because the murder or rape far eclipse the monetary value. You’ll be happy to know that, if the pursued party breaks some dishes of the pursuer in fleeing for their life, they are not liable–though if they break dishes of a third party they do need to pay, which seems a bit petty under the circumstances, n’est ces pas?

The last idea I want to discuss has to do with the term יֵהָרֵג וְאַל יַעֲבוֹר (“he shall be killed and not transgress”), which is applied here to some biblical prohibitions but not to others. In modern colloquial Hebrew, this turn of phrase is used to specify laws that prohibit very serious crimes, and the intent is similar here, though there’s a semantic twist that seems important: the idea is that the transgressor himself, on some karmic level, would prefer to be killed than to suffer the disgrace of the transgression (of committing a murder or a rape). This ties some loose ends to the notion of preemptive punishment.

The imagined world of transgressors in this section is interesting to me. It reminds me of the tragic, tortured origin stories that Marvel Comics villains have so often; many of these tropes imply that the villainy stems from some sort of tortured death wish or a desire to get caught–there’s almost relief when they get shipped to the Arkham Institute for the Criminally Insane or somesuch. Is this a deep recognition that “hurt people hurt people”? Or that, ultimately, even those who experience the might of a punitive system desire it in some way?

Well done, folks! We’ve just finished the sugiyah of the rebellious son. We learned how laws that cannot be abolished can be interpreted to within an inch of their existence to practically sabotage their enforceability, and also how various theories of punishment, assumptions about compassion and relationships, and obligations to save others play into rabbinic legal logic.

Whenever my son’s soccer or gymnastics class is over, he gets a sticker, which I think is a nice way to celebrate accomplishments, so from now on, whenever we finish a sugiyah, you all get a sticker!

Punishing Future Crimes: b.Sanhedrin 72

The concept of the movie Minority Report (2002) involves a futuristic police force that can predict future crimes and intervene, as well as preemptively punish the to-be-offenders. One of my favorite lines, which you’ll hear in this trailer, is “I’m placing you under arrest for the future murder of Sarah Marks.”

I bring this up because Thursday’s daf (still trying to stay ahead of the game because of the busy weekend ahead) deals with the deeper philosophical questions undergirding such a harsh punishment for teenagers. The mishna says:

מַתְנִי׳ בֵּן סוֹרֵר וּמוֹרֶה נִידּוֹן עַל שֵׁם סוֹפוֹ. יָמוּת זַכַּאי וְאַל יָמוּת חַיָּיב, שֶׁמִּיתָתָן שֶׁל רְשָׁעִים – הֲנָאָה לָהֶן וַהֲנָאָה לָעוֹלָם.

The idea is that the son’s behavior predicts future wrongdoing, and it’s a karmic benefit, of sorts, for the son to die before the more serious crimes are bound to occur. Rabbi Yosei predicts:

הִגִּיעָה תּוֹרָה לְסוֹף דַּעְתּוֹ שֶׁל בֵּן סוֹרֵר וּמוֹרֶה, שֶׁסּוֹף מְגַמֵּר נִכְסֵי אָבִיו וּמְבַקֵּשׁ לִמּוּדוֹ וְאֵינוֹ מוֹצֵא, וְיוֹצֵא לְפָרָשַׁת דְּרָכִים וּמְלַסְטֵם אֶת הַבְּרִיּוֹת.

We already know, he explains, that this kid is a wrong ‘un, and will eventually eat up his father’s assets, forsake his schooling, and end up a highway bandit.

In the context of teens, the incapacitative punishment rationale might seem extreme. Indeed, the last two decades have seen advances in neuroimaging and developmental psychology that suggest that the prefrontal cortex, which is responsible for restraint, self control, perspective taking, and other salutary aspects of cognitive and emotional maturity, continues developing well into a person’s mid-20s. These findings have contributed, in the United States, to a more enlightened view on juvenile punishment, such as the abolition of the death penalty and narrowing the framework of life without parole–with the understanding that juveniles have the capacity to change. Still, the idea of incapacitation and that “people don’t change” has a lot of popular and policymaking purchase, and the sages are no different.

The issue of preemptive punishment of rebellious sons serves as a gateway for the rest of the daf, which addresses other predictive punishments, especially that of burglars. At issue is the Talmudic self-defense regime. Generally speaking, common law recognizes three aspects of self-defense: (1) stand your ground (permitting any person facing a violent attack to defend themselves), (2) castle doctrine (limiting the immunity from prosecution to people in their own home), and (3) duty to retreat (requiring the person to leave the situation unless there is no other choice). Most of the burglar discussion that follows engages with something akin to the castle doctrine.

According to the Mishna, burglars, like rebellious sons, are preemptively punished–namely for the possibility that the homeowner will kill them to defend his property. The gemara predicts the encounter will play out in this way: the burglar, predicting that the homeowner will resist the burglary, will decide to preemptively kill the homeowner. But if the burglar gets out safely with vessels, there’s some controversy over whether he is liable for the theft: according to Rav, presumably the deterrent effect is unnecessary, since the person was willing to risk death when he came in, and the vessels are still legally owned by the homeowner.

An intervening factor is the question whether, in killing the burglar, the homeowner would be justified or not (such as if it is a father killing a son). If not, says Rav, then even if the burglar breaks something in the house, he is not liable for it; but Rava and the the other sages disagree and would charge the burglar for the destruction. You’d think the majority opinion here is obvious–you break it, you pay for it–but what they want to highlight is that the burglar is liable even if the damage was unintentional.

The next issue has to do with the proper punishment when two transgressions occur: a theft and a Shabbat violation. Since, for the latter, one is to die by stoning, what happens if one steals a purse during Shabbat? According to Rav Bivai, picking up the purse happened before the Shabbat violation (as only carrying the purse into the public domain would be a violation of Shabbat) and thus the person must pay for the theft (presumably before being stoned). But if the person dragged the purse without picking it up, then the violation and the Shabbat violation occur simultaneously, and then the person must only be stoned. Still, the gemara says, the burglar must return the purse, and if he destroys it, he must compensate for it.

There’s a weird anecdote about the controversy between Rava and Rav: once, Rava’s rams were stolen by burglars. When they came back to return them (nice burglars!), Rava said, “keep them–according to Rav you have acquired them by stealing them.” I’m assuming that Rava is being cynical here and trying to use this scenario to show the absurdity of Rav’s position, but I also worry that the irony will be lost on the burglars and they’ll just keep the rams.

The rabbis now turn to figure out when the homeowner may kill the burglar. The baraita says: ״אֵין לוֹ דָּמִים. אִם זָרְחָה הַשֶּׁמֶשׁ עָלָיו״ (“if the sun shone on him, no blood shall be shed on his account.” The sages think that this intends to elucidate that, [only] if it’s as clear as sunlight that the burglar intends to kill you, you may kill him first. Unfortunately, there’s also a contradictory baraita: ״אִם זָרְחָה הַשֶּׁמֶשׁ עָלָיו דָּמִים לוֹ״ (“if the sun shone on him, blood shall be shed on his account”), and the rabbis resolve this by saying that if it is clear that the burglar comes in peace, the homeowner must refrain from killing him. But this leaves a contradiction: what happens if the homeowner is unsure of the burglar’s intentions? The rabbis resolve this by assuming that the first case involves a father burglarizing his son’s residence: the father has compassion for the son, and thus the son might safely assume that his father would not kill him, and should therefore refrain from killing the father. The second case involves a son burglarizing the father’s residence, where the father has no guarantee of the son’s nonviolence and thus more likely to kill him.

This sounds nuts, because paradoxically this bit gives the father more leeway for self-defense than the son. So, perhaps to alleviate the tension, Rav interjects and says that he would kill anyone who broke into his house except for Rav Hanina, because it’s well known that Hanina is a righteous man and would mean him no harm. The others raise their eyebrows: if Hanina is such a righteous man, why would he break into Rav’s house? Rav explains: even if he did, he would have mercy on me like a father has on his son.

What about a burglar caught on Shabbat? That depends on which of the contradicting baraitas you prefer. If you prioritize the self-defense of the homeowner, it can be exercised on a weekday as well as on Shabbat. If you prioritize the burglar’s safety, Rav Sheshet explains that the burglar must be saved if he is critically injured during the crime.

As to who has standing to kill in self-defense, the rabbis interpret the baraita to apply only to the homeowner himself (whose property is at risk from the burglar), not to third parties. But if the burglar is likened to a רוֹדֵף (pursuer), whom anyone can kill to save the pursued party, why limit the right to self-defense? Incidentally, modern criminal law typically includes defense of others as well as self-defense, but this is more complicated, from a philosophical standpoint, than it appears. Anyway, the bible’s use of passive voice in the context of a murderer, מוֹת יוּמַת (“he shall be put to death”) is implied to apply here too, in terms of a universal permission and a universal mode of execution. But other sages worry that the law of murderers does not apply here, as it appears in proximity to the law of vendettas, and as we’ve seen in a prior verse, having two cases together implies that they are not aiming to elucidate a general principle but rather to specify the law as to those two cases.

When describing the burglary scenario, the biblical text uses the term מַחְתֶּרֶת (actually entering the property). While the sages believe that burglars are liable regardless of whether they are found in the property or on the roof, in the backyard, etc., the idea is that an act of breaking in obviates the homeowner’s need to forewarn the burglar: מַחְתַּרְתּוֹ זוֹ הִיא הַתְרָאָתוֹ, the break-in itself constitutes the warning.

We end with a few final insights about pursuers and self-defense against them:

If the pursuer is a minor, it might be possible to rescue the pursued party without killing him; nevertheless, Rav Huna believes the killing is permitted, because he disputes the aforementioned need for forewarning.

If a pregnant woman’s life is threatened by her fetus (the pursuer, in this case), it is okay to save her by killing the fetus, unless the head is already out–even though the baby is considered a live person, what is really pursuing the woman is misfortune from the heavens, rather than the newborn (I can think of many discomfiting permutations of this logic).

A third party who sees hot pursuit may try to dissuade the pursuer from killing the pursued, but it is not necessary (because forewarning is not required–or, at least, not required when it appears that the person is acting with intent). The only time the forewarning is required is when the third party cannot rescue the pursued party because he is standing on the other side of a river.

Glossip Conviction Vacated: Death Penalty Irony Lost on Everyone

This morning the Supreme Court vacated the conviction of Richard Glossip and ordered a new trial for him. Read all about it here. A short excerpt:

The ruling is a major win for Glossip, whose 1998 conviction for arranging the murder of Barry Van Treese a year earlier has been called into question by him and, critically, the state attorney general after new evidence emerged in recent years.

The ruling represents an extraordinary twist in the legal saga surrounding Glossip, who has been scheduled for execution nine times and has eaten his last meal three times only to have his execution stayed.

“We conclude that the prosecution violated its constitutional obligation to correct false testimony,” Justice Sonia Sotomayor wrote for the majority.

At the center of the appeal are notes taken by prosecutors involved in Glossip’s trial about Justin Sneed, the man who killed Van Treese with a baseball bat in a hotel. Even though both sides agree Sneed actually killed Van Treese, Glossip was charged with orchestrating the murder.

Glossip’s conviction rested on Sneed’s testimony, but years after Glossip’s conviction, the state disclosed evidence that Sneed was treated for a serious psychiatric condition. The notes indicate that prosecutors knew about Sneed’s diagnosis and treatment at the time of Glossip’s trial and, according to Glossip’s supporters, hid that information from his defense.

“Had the prosecution corrected Sneed on the stand, his credibility plainly would have suffered. That correction would have revealed to the jury not just that Sneed was untrustworthy (as amicus points out, the jury already knew he repeatedly lied to the police), but also that Sneed was willing to lie to them under oath,” Sotomayor wrote. “Such a revelation would be significant in any case, and was especially so here where Sneed was already ‘nobody’s idea of a strong witness.’”

Just a short while ago, I published an article in the Green Bag in which I wrote this about the case:

In 2015, the Supreme Court rejected Glossip’s petition against the use of midazolam in his execution, just a brief time after the same drug played a horrendous part in the botched execution of Clayton Lockett. In line with the aforementioned trend of technical litigation, the decision revolved around whether Glossip had shown that Oklahoma had better execution methods than midazolam.

Anyone reading the decision could be forgiven for having no idea that Glossip was widely believed to be innocent, and had been for years, and that Oklahoma’s Attorney General, who reviewed his case, does not stand behind the conviction. Nevertheless, the Oklahoma Court of Criminal Appeals would not halt Glossip’s execution. Judge David Lewis wrote that the case “has been thoroughly investigated and reviewed,” with Glossip given “unprecedented access” to prosecutors’ files, “[y]et 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.” It took yet another petition to the U.S. Supreme Court to halt the execution.

I’m sure the irony of the person on whom they authorized the expedited killing method turning out to have been innocent this whole time is completely lost on everyone, but I wanted to make sure it would not be lost on you this morning.

Fleeing Justice: b.Sanhedrin 71

In keeping with the general theme of this sugiyah, today’s page features four Gemaraic takes on Mishnaic rules designed to narrow the unpalatable rebellious son rule as much as possible. The trend remains the same: the Mishna narrows the rule in the Torah, and the Gemarah narrows it further.

The first rule has to do with a son who steals:

מַתְנִי׳ גָּנַב מִשֶּׁל אָבִיו וְאָכַל בִּרְשׁוּת אָבִיו, מִשֶּׁל אֲחֵרִים וְאָכַל בִּרְשׁוּת אֲחֵרִים, מִשֶּׁל אֲחֵרִים וְאָכַל בִּרְשׁוּת אָבִיו – אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה עַד שֶׁיִּגְנוֹב מִשֶּׁל אָבִיו וְיֹאכַל בִּרְשׁוּת אֲחֵרִים. רַבִּי יוֹסֵי בְּרַבִּי יְהוּדָה אוֹמֵר: עַד שֶׁיִּגְנוֹב מִשֶּׁל אָבִיו וּמִשֶּׁל אִמּוֹ.

The gemara explains the two relevant factors: the difficult of going through with the theft and the extent to which fearing apprehension will deter the son from further crime. This, by the way, is straight out of the playbook espoused today by situational crime prevention experts. In their work on routine activity theory, Cohen and Felson say that the likelihood that crime will be committed is a function of the convergence in time and place of three factors: likely offenders, suitable targets, and the absence of capable guardians against crime. Assuming that our kid is a bad ‘un, what remains is to make the target less accessible and the guardian more potent. Accordingly, stealing from your father is easy, but eating on your father’s property puts you in fear of your dad catching you and will thus discourage you from reoffending. Stealing from others is difficult, but if you eat it on your father’s property, you still could be frightened into going straight. Stealing from others is hard to do, and thus daunting. So, it is only the son who steals from his father and eats it elsewhere who counts are rebellious.

A further limitation requires stealing from both parents. Presumably, whatever the mother has belongs to the father (ugh), so the rebellious son gets dinged for stealing from a meal prepared to both of them (to purchase himself the aforementioned cheap meat and wine), or from stealing from property designated as belonging to the mother only.

The second rule requires both parents to be on board with declaring their son a rebellious one:

מַתְנִי׳ הָיָה אָבִיו רוֹצֶה וְאִמּוֹ אֵינָהּ רוֹצֶה, אָבִיו אֵינוֹ רוֹצֶה וְאִמּוֹ רוֹצָה – אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה עַד שֶׁיְּהוּ שְׁנֵיהֶם רוֹצִין. רַבִּי יְהוּדָה אוֹמֵר: אִם לֹא הָיְתָה אִמּוֹ רְאוּיָה לְאָבִיו, אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה.

The gemara goes further than that: they start off by trying, for size, the idea that if the parents aren’t a good match from a halakhic perspective then they can’t be on board with each other. Then again, one might have parents who are not married to each other and nevertheless both on board with declaring him rebellious. So, the gemara argues that the parents have to be on par with each other, so that their uniform declaration ״אֵינֶנּוּ שֹׁמֵעַ בְּקֹלֵנוּ״ (“he doesn’t listen to us”) sounds homogenous. So, they have to have a similar voice, visage, and height מִדְּקוֹל בָּעֵינַן שָׁוִין, מַרְאֶה וְקוֹמָה נָמֵי בָּעֵינַן שָׁוִין.

If you think, “this is ridiculous! They’re just finding any excuse to ensure that no one gets labeled rebellious,” you’re absolutely right, and they are aware of it and say so explicitly: בֵּן סוֹרֵר וּמוֹרֶה לֹא הָיָה וְלֹא עָתִיד לִהְיוֹת – a rebellious son has never existed and will never exist. This rule, they say, exists just for the sake of learning it–same as the Draconian rule about destroying idolatrous cities. The funny thing is that one rabbi, Rabbi Yonatan, is not on board with the rest, and says, “I saw a rebellious son’s grave once.” Then, when they all exclaim that an idolatrous city also cannot exist, he pipes up again saying, “I saw one once.” Rabbi Yonatan reminds me of the sole “non-individual” in this immortal Life of Brian scene:

The third rule creatively interprets the biblical text to exclude sons of people with various disabilities:

מַתְנִי׳ הָיָה אֶחָד מֵהֶם גִּידֵּם, אוֹ חִיגֵּר, אוֹ אִלֵּם, אוֹ סוֹמֵא, אוֹ חֵרֵשׁ – אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה, שֶׁנֶּאֱמַר: ״וְתָפְשׂוּ בוֹ אָבִיו וְאִמּוֹ״ – וְלֹא גִּדְמִין, ״וְהוֹצִיאוּ אֹתוֹ״ – וְלֹא חִגְּרִין, ״וְאָמְרוּ״ – וְלֹא אִלְּמִין, ״בְּנֵנוּ זֶה״ – וְלֹא סוֹמִין, ״אֵינֶנּוּ שֹׁמֵעַ בְּקֹלֵנוּ״ – וְלֹא חֵרְשִׁין. .

Let’s recap: since the biblical rule requires the parents to (1) catch the son, (2) take him out, (3) speak up and say (4) “this is our son… (5) he doesn’t listen to us” they must have all their limbs in good functioning order, they must be able to speak, see, and hear. If this strikes you as silly, remember the end goal: to make sure the rule is unenforceable.

In the extremely unlikely event that some unlucky rebellious kid does face the court, the mishna specifies the procedure to follow:

מַתְרִין בּוֹ בִּפְנֵי שְׁלֹשָׁה, וּמַלְקִין אוֹתוֹ. חָזַר וְקִלְקֵל – נִדּוֹן בְּעֶשְׂרִים וּשְׁלֹשָׁה, וְאֵינוֹ נִסְקָל עַד שֶׁיְּהוּ שָׁם שְׁלֹשָׁה הָרִאשׁוֹנִים, שֶׁנֶּאֱמַר: ״בְּנֵנוּ זֶה״ – זֶהוּ שֶׁלָּקָה בִּפְנֵיכֶם.

The kid gets warned before two people, then flogged before three (which is a legal court). The sages deduce this flogging process–akin to the 1980s practice of administering a “short sharp shock” or what today’s probarion officers call “flash incarceration” to scare people straight–from a similar procedure prescribed in the bible for defamers. If the kid recidivates, he is to face justice before 23 judges, including the former three, and identified again by the parents.

The fourth rule has to do with a kid who flees his trial for rebelliousness before reaching puberty :

מַתְנִי׳ בָּרַח עַד שֶׁלֹּא נִגְמַר דִּינוֹ, וְאַחַר כָּךְ הִקִּיף זָקָן הַתַּחְתּוֹן – פָּטוּר. וְאִם מִשֶּׁנִּגְמַר דִּינוֹ בָּרַח, וְאַחַר כָּךְ הִקִּיף זָקָן הַתַּחְתּוֹן – חַיָּיב.

In the two prior pages, you’ll recall, the sages tried to limit the application of the rebellious son doctrine to teenagers within a rather narrow timeline of their maturation process. The situation covered here is of a kid who was still within that range but not yet found guilty and managed to run away. If that kid is found afterwards, when they are beyond the allowed age range, he will have successfully escaped the law. However, if there’s a verdict already and then the kid runs, he will face justice after he is apprehended. The analogy proposed by Rabbi Hanina is of a gentile who curses God and later converts to Judaism. הוֹאִיל וְנִשְׁתַּנָּה דִּינוֹ, נִשְׁתַּנֵּית מִיתָתוֹ (as his legal situation has changed, his fate changes as well). The analogy is not perfect, but the idea is that once the verdict is pronounced, the rebellious son is already a dead man and thus cannot escape his fate.

This principle reminds me a lot of the distinctions made between substantive and procedural new law for the purpose of retroactivity. If, for example, a new law exempts a category of people from punishment (e.g., no more death penalty for juveniles), it acts retroactively. If the change is merely procedural (e.g., new wrinkle to jury selection), it only operates prospectively. And if the case is final, generally speaking, new rules will not apply nor will they be announced.

On Stuffing Your Face: b.Sanhedrin 70

Today the sages continue with their project of defining the rebellious son as narrowly as possible. Part of the biblical definition of a rebellious son includes the description זוֹלֵל וְסֹבֵא, which means excessively stuffing one’s face with food. The goal of today’s page is to provide the most outlandishly extreme benchmarks for eating, which made me think of a book I read last week: Jason Fagone’s excellent (and marvelously titled) Horsemen of the Esophagus.

Jason, currently an investigative reporter with the San Francisco Chronicle, is someone I like, admire, and respect a lot from back in the days that we were both at the front lines of the COVID-19-in-prison crisis. He was part of the team that broke the story about the San Quentin outbreak and was reporting heartwrenching stories that shocked and surprised even those of us who were on the phone every day with the people inside and their families. I therefore value not only his turn of phrase, but also his vast empathy and curiosity. And both of those qualities are in full display even in this earlier work. There would be nothing easier than to present competitive eaters as freakish and grotesque, or as dupes of crass marketing ploys, but Jason takes them and their project seriously, on their own terms; they are aware of the financial side of the enterprise and the health risks, but they treat what they do seriously, consider themselves athletes, and have a considerable part of their identities wrapped up in these competitions.

Some of the descriptions of food in this daf reminded me of Jason’s book, as will become immediately apparent. The starting point is the Mishna, which says:

מֵאֵימָתַי חַיָּיב? מִשֶּׁיֹּאכַל תַּרְטֵימָר בָּשָׂר, וְיִשְׁתֶּה חֲצִי לוֹג יַיִן הָאִיטַלְקִי. רַבִּי יוֹסֵי אוֹמֵר: מָנֶה בָּשָׂר, וְלוֹג יַיִן. אָכַל בַּחֲבוּרַת מִצְוָה, אָכַל בְּעִיבּוּר הַחֹדֶשׁ, אָכַל מַעֲשֵׂר שֵׁנִי בִּירוּשָׁלַיִם, אָכַל נְבֵילוֹת וּטְרֵיפוֹת שְׁקָצִים וּרְמָשִׂים (אָכַל טֶבֶל וּמַעֲשֵׂר רִאשׁוֹן שֶׁלֹּא נִטְּלָה תְּרוּמָתוֹ וּמַעֲשֵׂר שֵׁנִי וְהֶקְדֵּשׁ שֶׁלֹּא נִפְדּוּ). אָכַל דָּבָר שֶׁהוּא מִצְוָה, וְדָבָר שֶׁהוּא עֲבֵירָה, אָכַל כׇּל מַאֲכָל וְלֹא אָכַל בָּשָׂר, שָׁתָה כׇּל מַשְׁקֶה וְלֹא שָׁתָה יַיִן – אֵינוֹ נַעֲשֶׂה בֵּן סוֹרֵר וּמוֹרֶה עַד שֶׁיֹּאכַל בָּשָׂר וְיִשְׁתֶּה יַיִן, שֶׁנֶּאֱמַר: ״זוֹלֵל וְסֹבֵא״. וְאַף עַל פִּי שֶׁאֵין רְאָיָה לַדָּבָר, זֵכֶר לַדָּבָר שֶׁנֶּאֱמַר: ״אַל תְּהִי בְסֹבְאֵי יָיִן בְּזֹלְלֵי בָשָׂר לָמוֹ״.

So according to the Mishna, to be a rebellious son you have to be a glutton in all the following ways: (1) eat both meat and wine, to the tune of (2) a tharteimar (?) of meat and (3) half a log of Italian (!) wine, (4) eat non-kosher things, (5) not eat in a group and (5) not eat something that is a mitzvah to eat. That doesn’t leave you with a lot of transgressive meals, so to rise to the level of a rebellious son it has to be a truly outrageous, over-the-top meal indeed. Can the Gemara sages top that?

How much meat and wine? Rabbi Zeira doesn’t know what a “tharteimar” is, but believes that since the wine amount is double what you expect someone to consume, it’s the same re the meat portion, and so a “tharteimar” is “half a maneh”.

What cost of meat and wine? According to Rav Huna, inexpensive stuff (paraphrasing Woody Allen–the food was so bad and the portions so big).

How should the meat and wine be prepared? Rav Hanan cites Rav Huna: raw meat and “live” (unstrained? undiluted?) wine. Others disagree and think eating these things is actually fine. Ravina proposes a compromise: medium-rare meat and improperly diluted wine. Rabba & Rav Yosef: eating salted meat is fine, as is drinking wine straight from the press (essentially grape juice). This last comment leads to a long segue about the kosher qualities of salted meat, how long is should be salted for, and how long the wine should ferment for (three days, says a baraita, which I think should surprise some friends in Napa and Sonoma).

The concern with the rawness of the meat and wine has to do with what can and cannot be eaten on Tish’a be-Av, the memorial day for the destruction of the temple. But that discussion is a good springboard for a general round of commentary about the virtues of drinking in moderation. The various rabbis provide some zingers, with which you can charm everyone at your next pub crawl, champagne tasting, or AA meeting:

אָמַר רַב חָנָן: לֹא נִבְרָא יַיִן בָּעוֹלָם אֶלָּא לְנַחֵם אֲבֵלִים, וּלְשַׁלֵּם שָׂכָר לָרְשָׁעִים, שֶׁנֶּאֱמַר: ״תְּנוּ שֵׁכָר לְאוֹבֵד וְיַיִן לְמָרֵי נָפֶשׁ״.

Wine is for comforting mourners and paying the wicked (so that they rejoice in this world but not the next).

אָמַר רַבִּי יִצְחָק: מַאי דִּכְתִיב ״אַל תֵּרֶא יַיִן כִּי יִתְאַדָּם״? אַל תֵּרֶא יַיִן שֶׁמַּאֲדִים פְּנֵיהֶם שֶׁל רְשָׁעִים בָּעוֹלָם הַזֶּה, וּמַלְבִּין פְּנֵיהֶם לָעוֹלָם הַבָּא. רָבָא אָמַר: ״אַל תֵּרֶא יַיִן כִּי יִתְאַדָּם״ – אַל תֵּרֶא יַיִן שֶׁאַחֲרִיתוֹ דָּם.

Wine reddens the faces of the wicked and whitens it (with shame) for the next world.

רַב כָּהֲנָא רָמֵי: כְּתִיב ״תִּירָשׁ״ וְקָרֵינַן ״תִּירוֹשׁ״. זָכָה – נַעֲשֶׂה רֹאשׁ, לֹא זָכָה – נַעֲשֶׂה רָשׁ.

The term for sweet juice, tirosh, is a play on rosh (head) and rash (poor).

רָבָא רָמֵי: כְּתִיב ״יְשַׁמַּח״ וְקָרֵינַן ״יְשַׂמַּח״. זָכָה – מְשַׂמְּחוֹ, לֹא זָכָה – מְשַׁמְּמֵהוּ. וְהַיְינוּ דְּאָמַר רָבָא: חַמְרָא וְרֵיחָנֵי פַּקַּחִין.

The term “yesamah” (will gladden) can go either way: either you do become glad (mesamho), or you become desolate (meshamemehu)

אָמַר רַב עַמְרָם בְּרֵיהּ דְּרַבִּי שִׁמְעוֹן בַּר אַבָּא, אָמַר רַבִּי חֲנִינָא: מַאי דִּכְתִיב ״לְמִי אוֹי לְמִי אֲבוֹי לְמִי מְדָנִים לְמִי שִׂיחַ לְמִי פְּצָעִים חִנָּם לְמִי חַכְלִלוּת עֵינָיִם (וְגוֹ׳) לַמְאַחֲרִים עַל הַיָּיִן לַבָּאִים לַחְקֹר מִמְסָךְ״? כִּי אֲתָא רַב דִּימִי אֲמַר: אָמְרִי בְּמַעְרְבָא, הַאי קְרָא מַאן דְּדָרֵישׁ לֵיהּ מֵרֵישֵׁיהּ לְסֵיפֵיהּ – מִדְּרִישׁ, וּמִסֵּיפֵיהּ לְרֵישֵׁיהּ – מִדְּרִישׁ.

Wine is associated with fighting and injuries and red eyes.

דָּרֵישׁ עוֹבֵר גָּלִילָאָה: שְׁלֹשׁ עֶשְׂרֵה וָוִין נֶאֱמַר בַּיַּיִן: ״וַיָּחֶל נֹחַ אִישׁ הָאֲדָמָה, וַיִּטַּע כָּרֶם, וַיֵּשְׁתְּ מִן הַיַּיִן, וַיִּשְׁכָּר, וַיִּתְגַּל בְּתוֹךְ אׇהֳלוֹ, וַיַּרְא חָם אֲבִי כְנַעַן אֵת עֶרְוַת אָבִיו, וַיַּגֵּד לִשְׁנֵי אֶחָיו בַּחוּץ, וַיִּקַּח שֵׁם וָיֶפֶת אֶת הַשִּׂמְלָה, וַיָּשִׂימוּ עַל שְׁכֶם שְׁנֵיהֶם, וַיֵּלְכוּ אֲחֹרַנִּית, וַיְכַסּוּ אֵת עֶרְוַת אֲבִיהֶם וּפְנֵיהֶם וְגוֹ׳״, ״וַיִּיקֶץ נֹחַ מִיֵּינוֹ, וַיֵּדַע אֵת אֲשֶׁר עָשָׂה לוֹ בְּנוֹ הַקָּטָן״.

One example of the harms of drinking too much is Noah, whose nakedness was witnessed by his youngest child after he blacked out in his tent. This, by the way, leads to a side discussion about what, precisely, the youngest child did, which we’ll leave out of this. But at least Rabbi Zakai–and possibly also Rabbi Meir connects Noah’s misfortune to the banishment of Adam from Heaven, which he blames on wine (a dispute erupts on whether the infamous tree in Eden was a vine).

שֶׁאֵין לְךָ דָּבָר שֶׁמֵּבִיא יְלָלָה לְאָדָם אֶלָּא יַיִן.

Wine brings about wailing.

In what company? Rebellious sons eat in the company of empty nothings (סְרִיקִין). According to the sages, even if there are some worthy companions, if they are gathered for idle purposes, the rebellious son is still liable.

What’s the timing of the meal? During the full moon, there’s a celebratory meal (to which you’re supposed to arrive at daybreak) with only grains and legumes. But if the rebellious son eats meat and wine there, he’s at least participating in the ritual, so it doesn’t count. Similarly, if the meal is a second tithe in Jerusalem, it’s fine.

What sort of meat? Chicken is fine, according to Rava; insects and creepers are not. But Rava speaks of diet generally, rather than on the excessive addition of bad foods. Transgressive food in itself does not render one a rebellious son, because the essence of the offense is disobeying one’s parents, rather than God.

Meat- and wine-analogues? The rabbis argue that it has to be actual meat and actual wine. Drinking other intoxicating things, like honey and milk, doesn’t count. Also, eating other filling things, like dried figs, does not count.

So, you see, these are very specific, peculiar ways to binge and overindulge; your regular bingeing and overindulgence do not land you in biblical trouble. We will continue to see these narrow interpretations in the next few days.