The Order of Things: b.Sanhedrin 49

My grad school journey was saturated with Foucault, who found his way to my dissertation as well. Criminologists tend to read Discipline and Punish, a book that identifies prison with modernity and with a shift in punishment from body to soul and from a central display of regal power to diffuse loci of power, and ultimately to having people exercise power upon themselves (which is why it is an important part of the setup for my book manuscript Behind Ancient Bars). Other books I got to pick up from the shelf quite often were Madness and Civilization, and History of Sexuality. Thing is, if I could help it, I tried to avoid The Order of Things as much as I could. Which is lamentable, because in many ways The Order of Things uncovers the mechanism that makes many of Foucault’s other works tick. He examines how different sciences and disciplines view things; in other words, the book is preoccupied with the creation of knowledge, which is a central factor in Foucault’s knowledge/power spiral.

The reason I bring up The Order of Things is that Sanhedrin 49b is very preoccupied with the production of lists and mnemonics. It is, in other words, a list of lists; a talmudic order of things, if you will. The excuse for this meta conversation is the issue of execution methods. The mishna lists four methods, but Rabbi Shim’on disputes the order:

מַתְנִי׳ אַרְבַּע מִיתוֹת נִמְסְרוּ לְבֵית דִּין: סְקִילָה, שְׂרֵיפָה, הֶרֶג, וָחֶנֶק. רַבִּי שִׁמְעוֹן אוֹמֵר: שְׂרֵיפָה, סְקִילָה, חֶנֶק, וָהֶרֶג. זוֹ מִצְוַת הַנִּסְקָלִין.

MISHNA:Four types of the death penalty were given over to the court, with which those who committed certain transgressions are executed. They are, in descending order of severity: Stoning, burning, killing by decapitation, and strangulation. Rabbi Shimon says: They are, in descending order of severity: Burning, stoning, strangulation, and killing. This execution, described in the previous chapter, is referring to the mitzva of those who are stoned, i.e., to the process of execution by stoning.

Which raises an interpretive question: When the halakha provides a list, does the order of the things on the list matter? Rava quotes Rav S’hora, who quotes Rav Huna as saying that, usually, the order is not important, but there are a few exceptions, where the order is crucial:

  1. The investigatory list of substances to be applied to a stain found on a woman’s clothing, to investigate whether it is menstrual blood (and thus impure) is a sequence (think: chemistry test);
  2. The aforementioned list of execution methods (deduced from the fact that there was a dispute, meaning that the parties to the dispute thought the order mattered);
  3. The items on the order of service for Yom Kippur;
  4. The order of the daily offering at the temple;
  5. The sequence of events necessary for releasing a woman from the obligation to marry her late husband’s brother;
  6. The order in which the temple priests put on their ritual garments.

Here, the sages return to the question of the order of executions, which will be discussed in the next page. But for now, let’s focus on the issue of putting things in order. One possibility with lists is that sometimes the order matters; one must put on their undergarments before their clothes and their outerwear. Another, as in the case of the tested stain, is that there is scientific logic in moving from step to step. And another is ritualistic: a ritual has flow, and there are usually good reasons for why certain prayers, songs, and actions were strung together into a religious service. But the statements that, other than these exceptional matters, things do not usually follow an order, make sense when one considers how often they are strung together into a mnemonic–not because the order matters, but because it is an easier way to memorize.

This reminded me of Foucault’s oft-quoted opening to The Order of Things, in which he quotes Borges, who seeks to show the arbitrariness of listmaking and categorization:

This book first arose out of a passage in Borges, out of the laughter that shattered, as I read the passage, all the familiar landmarks of my thought — our thought, the thought that bears the stamp of our age and our geography — breaking up all the ordered surfaces and all the planes with which we are accustomed to tame the wild profusion of existing things, and continuing long afterwards to disturb and threaten with collapse our age-old distinction between the Same and the Other. This passage quotes a “certain Chinese encyclopedia” in which it is written that “animals are divided into: (a) belonging to the Emperor, (b) embalmed, (c) tame, (d) sucking pigs, (e) sirens, (f) fabulous, (g) stray dogs, (h) included in the present classification, (i) frenzied, (j) innumerable, (k) drawn with a very fine camelhair brush, (1) et cetera, (m) having just broken the water pitcher, (n) that from a long way off” look like flies”. In the wonderment of this taxonomy, the thing we apprehend in one great leap, the thing that, by means of the fable, is demonstrated as the exotic charm of another system of thought, is the limitation of our own, the stark impossibility of thinking that.

As we’ll find out tomorrow, the sages are in a rush to show that there is much more method than that to their madness; we’ll embark on a series of classifications that could evoke in us modern readers “the stark impossibility of thinking that“, and yet they are hell-bent on coming up with a rationale for the classification of execution methods.

Interrogation Dilemma: Criminal (UK)

While out of the country, I got to while away the copious leisure time I didn’t have watching a fascinating international production: a Netflix series called Criminal. Four countries – the UK, Germany, Spain, and France – participated, each producing three episodes. The setting is very bare-bones: all four series utilize the same interrogation room with a one-way mirror in it. We see the interrogation of one witness or suspect, privy to what happens in the interrogation room as well as to what occurs behind the scenes. Some differences in procedure and legal culture are evident, but for the most part, it is a psychological drama.

In one of the Season 2 UK episodes, we see an interview with a woman named Julia, the ex-wife of a convicted murderer. Her ex-husband, who was a tutor for international students, apparently was involved with a young man from a foreign country and killed him. It now turns out that a second young international student is missing, and the team wants to figure out whether this young man met the same fate as the murder victim.

Julia has come to the interview on her own accord and appears very eager to help the interrogation: she is horrified by her husband’s deeds. It is a Sunday, and the team on the ground is sparse – just the interviewer and one more detective behind the mirror. But suddenly, the detective’s ears perk up: Julia has mentioned a few details about the peculiar method of the killings that were never released to the public; they were only included in the pathologist’s report, which she hasn’t seen. So how does she know?

The detective who is conducting the interview is, as of yet, unaware of this momentous fact. But the people behind the scenes are checking to make sure. The detective calls up the rest of the unit and, one by one, they arrive. They all seem to agree that, as long as the interviewer is unaware that Julia is incriminating herself, there’s no need to formally warn or charge her with a crime. It is only after the amicable interview is over and Julia exits the room that the commanding officer of the team approaches her, warns her, and places her under arrest. The following morning, she is interrogated under caution, and eventually provides more incriminating statements.

What if this had happened in the U.S.? That depends on whether the detectives were required to provide Julia with her Miranda warnings. It’s pretty easy to determine that, at the outset of the first interview, Julia is not in custody; she has come of her own free will to the station, she is collaborating, etc. As we know, Miranda warnings must only be provided to people under custodial interrogation; no custody, no Miranda requirement.

The more complicated question is whether the interrogating team’s awareness of the incriminating questions changes the nature of the interview into a custodial interrogation. By the time the team behind the mirror ascertains that only the killer could know the information Julia provided, it should be reasonably clear to them that she’s not going anywhere; she is the killer and, to top that, has framed her husband for the first murder. Does this change the constitutional status of the interrogation? Is Julia, at that point, in custody?

The definition of custody is: an arrest or its functional equivalent–a situation in which a reasonable person would feel that their freedom is considerably limited. Custody case law uses the suspect’s point of view: in at least one case, the suspect’s age is a relevant consideration as to whether they were in custody or not. Given that the actual interrogator in the room gives no indication that anything has changed (and is unaware of that herself), Julia doesn’t have any reasonable grounds to assume that her situation has changed. According to this view (and I suspect this is how many U.S. lawyers and legal scholars would see this), the warnings were unnecessary–which also means that the statements given during the second interrogation, in which she is given the warnings, are also admissible.

This does, however, raise the problem. If we say that Julia was not in custody during the first interview, we signal to detectives that there is an incentive for inviting people in as friendly witnesses and refraining from alerting them that their situation has changed. This is a fair argument in support of the idea that, once the interrogating team has become aware of the fact that the person is a suspect, rather than a neutral witness, they must give the person the warnings.

But that’s not the end of the story, because even according to this second view, while the first set of statements might not come in, the second one might. If the passage of time, the new warnings, and perhaps the added comment that the prior statements are inadmissible, count as curative methods, it’s quite possible that the statements from the second round will be admissible even if the first ones are not.

The Shroud Industrial Complex: b.Sanhedrin 48

One of the ugliest sides of capital punishment litigation in the United States is the extent to which economic considerations drive the arguments that can be made in court. As Ryan Newby and I explained in 2013, Eighth Amendment litigation has devolved from lofty issues of human rights into technical issues regarding methods of execution. The reason for this is chillingly prosaic: other countries do not export us the lethal drugs because they know what we use them for. Therefore, U.S.-based companies have to develop domestic alternatives: drugs crafted not to heal and save, but to kill–without a solid protocol for testing them. After the Supreme Court, faced with the inability to import drugs needed for a three-drug execution protocol, approved the use of a single injection of sodium thiopental in Baze v. Rees (2008), disconcerted pharmaceutical companies began refusing to supply states with the drug. Oklahoma replaced the general anesthetic with an untested off-label use of midazolam, keeping the drug’s origin secret, a procedure that was approved in Glossip v. Gross (2015).

The question raised in b.Sanhedrin 48 is, therefore, a perennial one: can the manufacturer of funerary items–in the Talmudic case, a weaver of shrouds[1]–benefit from them? In other words, if someone works for a shroud factory and produces cloth–even if the cloth ends up not being used as a shroud–can it be sold for profit? Abaye says no; Rava says yes. The rest of the page elucidates their reasons. After attempting analogies to the case of animal sacrifice, they focus their dispute on five issues, for which they create a mnemonic: כִּפָּה, נַפְשֵׁיהּ, דַּחֲצִיבָא, בְּקִבְרֵיהּ דְּיַתִּיר מֵאֲבֻהּ, בְּכִיסָא דְּאוּמָּנָא. (scarf, monument, excavation, money left over from dead ancestors, the craftsman’s pouch.)

Scarf. Can a scarf prepared for the wrapping of ritual objects (a Torah scroll or tefillin) be used for wrapping everyday objects, e.g., coins? The dispute is over whether the mere designation of the object for a sacred purpose–absent any actual ritual use–rules out any profane purposes. Abaye believes the designation is enough; Rav Hisda, who agrees with Rava’s perspective, believes that actual wrapping rules out profane use.

Monument. Can a monument erected as a memorial be used for ordinary purposes, e.g., housing the living? According to Abaye’s view, even if the monument was originally created to house the living, and later additions were there to honor the dead, it consecrates the whole monument and it cannot be used for nonsacred purposes – and this is true even if the dead body is later removed. In other words, it is the designation of the monument that matters. By contrast, Rafram bar Pappa, speaking for Rav Hisda, believes that removing the part of the monument that was designated a memorial for the dead person suffices for clearing the building for nonsacred purposes.

Excavation: A excavates a grave for his father, but ends up burying him in a different grave. Can the dug grave be used for A’s own burial? The gemara says no – מִשּׁוּם כְּבוֹד אָבִיו (due to honor owed to the father.) Raban Shim’on ben Gamliel adds that this is true even if A hadn’t completed the digging of the grave–even אַף הַחוֹצֵב אֲבָנִים לְאָבִיו, he who merely excavates some stones for the burial, cannot have those very stones used for his own burial. Rava would say that the mere designation of the dig for A’s father’s grave does not rule it out for A’s grave (and, respectively, the mere designation of yarn for shrouds does not rule it out for making cloth that can be sold for profit)–and might therefore claim that using the grave for the burial of a nonviable embryo and then for the burial of a person is fine. Abaye, by contrast, would argue that even a nonviable newborn counts as a dead body, whose burial is deserving of respect and treated as consecrating the grave (this is an interesting commentary about the connection, or disconnection, between viability and respect).

Money left over from dead ancestors: Rava attemps to allow the shroud to be used for profit by drawing an analogy to the use of money. According to mishna Shekalim 2:5, money left over from a deceased person passes on to the heirs. But this proof is deemed unpersuasive, as the purpose and timing of collection make a difference: money collected during the deceased’s lifetime is legitimate secular inheritance. By contrast, money left over from a burial collection must be spent on other burials.

This explanation, too, provokes a debate: according to Rava’s school of thought, money raised for burying unspecified people must be used for that purpose alone. Money raised for burying a particular person, however, is given to the heirs (think about a GoFundMe, or other charity fundraising, for a particular person’s funeral expenses; it is logical to pass the surplus on to the family.) But according to Abaye’s school of thought, the latter fund must either be used for improving the particular grave of the deceased or left alone (“until Elijah comes”, which is the safest way to use it according to Rabbi Meir). There are more twists and turns to this, pertaining to the degree to which an item that is used in conjunction with a burial (non-shroud cloth that falls into a grave) becomes consecrated to the dead – but let’s move on to the fifth analogy:

The craftsman’s pouch. Can one use a dedicated pouch for tefillin (phylacteries, which are used in prayer) to keep one’s money? Once the pouch has been used for the tefillin, it is no longer good for money. But if one orders a tefillin pouch from a craftsman, indicating that one intends to use it for a ritual purpose, and then ends up never using it for that purpose, one is allowed to use it instead for carrying money.

This last analogy might be seen as inappropriate in the context of the shroud. If mere designation is not enough, but rather use, when will we ever see shrouds designated for the dead but not already used for them? It turns out, as Rava explains, that in a place called Harpania the people are so poor that they cannot prepare the shrouds for themselves ahead of time, and thus the shrouds are made after the person is already deceased. The conclusion of the issue is that the law follows Rava’s logic: mere designation for the dead is not enough – actual use consecrates the shrouds, and until it occurs, the cloth can be used for mundane purposes.

The discussion now turns to the inheritance of the condemned. This, too, hits close to home for me; I have horrific memories of people wrangling with CDCR over the personal effects left by their incarcerated relatives who died of COVID-19. According to a baraita, הֲרוּגֵי מַלְכוּת – נִכְסֵיהֶן לַמֶּלֶךְ, הֲרוּגֵי בֵּית דִּין – נִכְסֵיהֶן לַיּוֹרְשִׁין – meaning that those executed by the king leave their property to the king, whereas those executed by the court leave their property to their heirs. This issue evokes the story of King Ahab inherinting Naboth’s vineyard. Ahab’s wife, wicked queen Jezebel, wanted to help her husband inherit the vineyard and thus lodged a false complaint according to which Naboth “cursed God and King.” After he was executed, Ahab took possession of the vineyard, for which he was admonished. The sages dig into the story: Rabbi Yehuda argue that Ahab was Naboth’s relative, and thus might have inherited the vineyard as a relative rather than as a king. Others argue that Naboth’s sons were to inherit, But Rabbi Yehuda retorts that Ahab had the sons killed as well so that he would inherit (the rabbis reply that those were potential sons, not actual sons).

This leads the sages to another problem: accusing Naboth of cursing God would have been enough for execution. Why, then, did Jezebel procure false testimony that he cursed the king as well? The reply is – לְאַפּוֹשֵׁי רִיתְחָא, to infuriate the judges against Naboth and ensure the sentence.

The supporters of the idea that the condemned’s property goes to the king rely on another biblical story as well, that of Joab’s flight from David when accused of supporting David’s son Adoniyah. Joab, the biblical story tells, held on to the horns of the altar, refusing to come out – was that, the sages ask, because he didn’t want his property to go to the king? Not necessarily, argue the supporters of Rabbi Yehuda’s perspective: he might have just wanted חַיֵּי שָׁעָה, to spare his own life for a while. Rabbi Yehuda then explains that, when Joab was ordered to leave the sanctuary, he said that the curses that David cursed him would boomerang back onto his executioners–and offers proof from biblical phrases that, indeed, each king of Solomon’s dynasty suffered from these curses. The talmud offers us this wisdom, therefore: תְּהֵא לוּטָא, וְלָא תְּהֵא לָאטָא – be the object of a curse rather than the curser, as the curse eventually returns to its provenance. What goes around comes around.

[1] Traditional Jewish burial does not involve coffins; the deceased body is wrapped in shrouds and taken to the grave on a stretcher.

Mourning and Deservedness: b.Sanhedrin 47

We are still on the topic of burial for people who were executed, which hits close to home in these months of grief and mourning–for people who have a grave to weep on, and for those who are waiting to see if their loved ones return home alive or dead. On Saturday, we saw Yarden Bibas return home from almost 500 days in Hamas captivity; his wife Shiri and two kids Ariel (5) and Kfir (1) are still in captivity and there are grave fears for their lives. While in captivity, Yarden was told by his captors that his family members were dead, but there has been so much deceit about these matters that we do not know for sure. But we fear and tremble. Throughout the last couple of weeks, parents and siblings and spouses of people who are feared to be dead, or confirmed dead, have talked about how meaningful it would be to have a grave. And I can say that, as our mourning for my dad continues, his grave, in the beautiful secular cemetery Menuha Nekhona in Kiriat Tivon is a focal point for many family members.

The casualties of the massacre and war, and the hostages, are deeply mourned; so was my father, whose funeral was attended by hundreds of people. But yesterday’s daf, which made me think of the opera Dead Man Walking, raised a lot of questions about the propriety and spiritual meaning of public mourning for people who perhaps didn’t earn love and grief because of horrific crimes they committed. The way this is formulated by the sages in Sanhedrin 47 is this: What, and who, do we observer burial rituals and eulogies for? Is it to prevent a desecration of the dead (which has meaning for family members and friends), or to absolve their wrongdoing (which is an individual morality issue)?

The sages proceed to examine this question through a series of biblical quotes, most of which support the idea that funerary rites are for the living, rather than for the dead. One notable example is this one:

תָּא שְׁמַע: הֱלִינוֹ לִכְבוֹדוֹ, לְשַׁמֵּעַ עָלָיו עֲיָירוֹת, לְהָבִיא לוֹ מְקוֹנְנוֹת, לְהָבִיא לוֹ אָרוֹן וְתַכְרִיכִין – אֵינוֹ עוֹבֵר עָלָיו, שֶׁכׇּל הָעוֹשֶׂה אֵינוֹ אֶלָּא לִכְבוֹדוֹ שֶׁל מֵת. הָכִי קָאָמַר: כׇּל הָעוֹשֶׂה לִכְבוֹדוֹ שֶׁל חַי, אֵין בּוֹ בִּזָּיוֹן לַמֵּת.

The Gemara suggests: Come and hear a proof from a baraita: If one left his deceased relative unburied overnight for the sake of his honor, for example, in order to assemble the people from the neighboring towns for the funeral, or to bring him professional lamenters, or to bring him a coffin or shrouds, he does not transgress the prohibition of “his body shall not remain all night,” as anyone who acts in such a manner does so only for the sake of honoring the dead. This indicates that the eulogy and other funeral rites are performed to honor the deceased. The Gemara rejects this argument: This is what the baraitais saying: Anyone who acts in such a manner for the sake of honoring the living does not transgress the prohibition, as there is no degradation of the dead.

This scenario involves a relative of a dead man who leaves him unburied overnight in order to organize a respectable funeral that requires out-of-town guests, lamenters, or supplies. To the extent that the funeral organizer is doing so in order to provide the proper funerary experience for the people left behind, the delay in burial is permissible.

The Talmud then goes into a somewhat creepy ghost story. The issue is: should people be buried according to their righteousness?

לֹא הָיוּ קוֹבְרִין כּוּ׳. וְכׇל כָּךְ לָמָּה? לְפִי שֶׁאֵין קוֹבְרִין רָשָׁע אֵצֶל צַדִּיק, דְּאָמַר רַבִּי אַחָא בַּר חֲנִינָא: מִנַּיִן שֶׁאֵין קוֹבְרִין רָשָׁע אֵצֶל צַדִּיק? שֶׁנֶּאֱמַר: ״וַיְהִי הֵם קֹבְרִים אִישׁ וְהִנֵּה רָאוּ אֶת הַגְּדוּד וַיַּשְׁלִיכוּ אֶת הָאִישׁ בְּקֶבֶר אֱלִישָׁע וַיִּגַּע הָאִישׁ בְּעַצְמוֹת אֱלִישָׁע וַיְחִי וַיָּקׇם עַל רַגְלָיו״.

§ The mishna teaches that they would not bury the executed transgressor in his ancestral burial plot, but rather in one of two special graveyards set aside for those executed by the court. The Gemara explains: And why is all this necessary? It is necessary because a wicked man is not buried next to a righteous man. As Rav Aḥa bar Ḥanina says: From where is it derived that a wicked man is not buried next to a righteous man? As it is stated: “And it came to pass, as they were burying a man, that behold, they spied a raiding party; and they cast the man into the tomb of Elisha; and as the man came there, he touched the bones of Elisha, and he revived and stood up on his feet” (II Kings 13:21). The man, who was not righteous, was miraculously resurrected so that he would not remain buried alongside Elisha.

אֲמַר לֵיהּ רַב פָּפָּא: וְדִילְמָא לְאִיקְּיוֹמֵי ״וִיהִי נָא פִּי שְׁנַיִם בְּרוּחֲךָ אֵלָי״? אֲמַר לֵיהּ: אִי הָכִי, הַיְינוּ דְּתַנְיָא: עַל רַגְלָיו עָמַד, וּלְבֵיתוֹ לֹא הָלַךְ.

Rav Pappa said to Rav Aḥa bar Ḥanina: What proof is there from here? Perhaps the man was resurrected in order to fulfill Elisha’s request of Elijah: “I pray you, let a double portion of your spirit be upon me” (II Kings 2:9), as now Elisha resurrected two people, the son of the Shunammite woman and this man, as opposed to Elijah, who had resurrected only one person? Rav Aḥa bar Ḥanina said to Rav Pappa: If so, there is a difficulty, as is this a reasonable explanation in light of what is taught in a baraita: The words “and stood up on his feet” indicate that he arose, but he did not go to his home. The man did not in fact live again but for a moment, indicating that he was resurrected not in order to fulfill Elisha’s request for a double portion of Elijah’s spirit, but in order to prevent the disgrace of having a wicked man buried next to Elisha.

אֶלָּא ״וִיהִי נָא פִּי שְׁנַיִם״, הֵיכִי מַשְׁכַּחַתְּ לַהּ דְּאַחֲיֵיא? אֲמַר לֵיהּ רַבִּי יוֹחָנָן: שֶׁרִיפֵּא צָרַעַת נַעֲמָן, שֶׁהִיא שְׁקוּלָה כְּמֵת, דִּכְתִיב ״אַל נָא תְהִי כַּמֵּת״.

The Gemara asks: But if so, with regard to the verse: “I pray you, let a double portion of your spirit be upon me,” where do you find that Elisha resurrected a second person? Rabbi Yoḥanan said to him: That request was fulfilled when he cured Naaman’s leprosy (see II Kings, chapter 5), an affliction that is considered to be equivalent to death, as it is written with regard to Miriam’s leprosy: “Let her not be as one dead” (Numbers 12:12).

וּכְשֵׁם שֶׁאֵין קוֹבְרִין רָשָׁע אֵצֶל צַדִּיק, כָּךְ אֵין קוֹבְרִין רָשָׁע חָמוּר אֵצֶל רָשָׁע קַל. וְלִיתְקוֹן אַרְבַּע קְבָרוֹת! שְׁנֵי קְבָרוֹת גְּמָרָא גְּמִירִי לַהּ.

The mishna teaches that two graveyards were established for the burial of those executed by the court, one for those who were killed by decapitation or strangulation, and one for those who were stoned or burned. The Gemara explains: Just as a wicked man is not buried next to a righteous man, so too an extremely wicked man, i.e., one who committed a grave offense is not buried next to a less wicked man, i.e., one who committed a less severe offense. The Gemara challenges: If so, let them establish four different graveyards, one for each of the different modes of judicial execution. The Gemara answers. It is learned as a tradition that there are two graveyards for those executed by the court, and no more.

This is pretty wild: it is suggested here that burying wicked people alongside righteous people may result in the unintended consequence of those wicked people being resurrected. Moreover, wicked people should not be mixed up with less wicked people in death (as in life). And all this raises another question: does a person who was killed for wrongdoing receive atonement in death? Abaye says no: the dead person did not repent.

אֲמַר לֵיהּ אַבָּיֵי: מִי סָבְרַתְּ מֵת מִתּוֹךְ רִשְׁעוֹ הָוְיָא לֵיהּ כַּפָּרָה? מֵת מִתּוֹךְ רִשְׁעוֹ לָא הָוְיָא לֵיהּ כַּפָּרָה, דְּתָנֵי רַב שְׁמַעְיָה: יָכוֹל אֲפִילּוּ פֵּירְשׁוּ אֲבוֹתָיו מִדַּרְכֵי צִיבּוּר יִטַּמֵּא? תַּלְמוּד לוֹמַר ״בְּעַמָּיו״ – בְּעוֹשֶׂה מַעֲשֵׂה עַמָּיו.

Abaye said to Rav Yosef: Do you maintain that one who dies in his state of wickedness without repenting achieves atonement? This is not the case, as one who dies in his state of wickedness without repenting does not achieve atonement, as Rav Shemaya taught in a baraita: The verse states with regard to the priests: “There shall none be defiled for the dead among his people, but for his kin that is near to him, for his mother, and for his father” (Leviticus 21:1–2). One might have thought that even if his father had become an apostate and separated himself from the ways of the community, his son the priest shall become ritually impure in order to bury him. Therefore, the verse states: “Among his people,” which teaches that a priest may become ritually impure only for one who performs the actions of his people, that is, one who conducts himself as a Jew. This indicates that one who dies in his wickedness without repenting does not achieve atonement.

Rava, by contrast, thinks that those who were executed, and thus did not die a natural death, did not have an opportunity to repent independently of the sentence, and thus do receive atonement.

אֲמַר לֵיהּ רָבָא: מִי קָא מְדַמֵּית נֶהֱרָג מִתּוֹךְ רִשְׁעוֹ לְמֵת מִתּוֹךְ רִשְׁעוֹ? מֵת מִתּוֹךְ רִשְׁעוֹ, כֵּיוָן דְּכִי אוֹרְחֵיהּ קָמָיֵית – לָא הָוְיָא לֵיהּ כַּפָּרָה. נֶהֱרָג מִתּוֹךְ רִשְׁעוֹ, כֵּיוָן דְּלָאו כִּי אוֹרְחֵיהּ מָיֵית – הָוְיָא לֵיהּ כַּפָּרָה.

Rava said to Abaye: Are you comparing one who was killed in his state of wickedness to one who died in his state of wickedness? An unrepentant sinner who died in his state of wickedness does not achieve atonement, since he died a natural death and there was nothing to bring about his atonement. But a transgressor who was killed in his state of wickedness achieves atonement, even without repentance, since he did not die a natural death, but rather he was executed.

And if so, let’s return to the insights from the previous page: we allowed for the possibility that relatives might experience private grief after an execution, regardless of public rituals; but if, indeed, the wicked who are executed receive atonement after death, that paves the way to public mourning as well.

The conversation then turns to the question of honoring the dead and buried: when, and under which circumstances, can a dug grave be reused after the body in it is moved for some reason. These are the sorts of questions that we have to address today when dealing with antiquities. The Israel Antiquities Authority gets called in every time a relic is found close to a highway, as they must guarantee respect for possible human remains. The taboo around disrespecting burial sites is at the heart of Stephen King’s terrifying Pet Sematary, reinforcing the perennial disturbing nature of the situations in which the boundary between the dead and the living becomes too thin for comfort.

When the Going Gets Rough, the Punishment Gets Rough: b.Sanhedrin 46

Today’s daf continues to address stoning issues, opening with a series of exercises in talmudic logic, which are jarring because of the crass material they are applied to. The mishna posits that people who are stoned to death are hung later, and we are offered two different treatments of this rule. Rabbi Eliezer’s logic: a verse calls for hanging those who curse God (Deuteronomy 21:23) and, since the punishment for blasphemy is stoning, it follows that those who are stoned are later hung. Other rabbis’ logic: The blasphemer denies the principle of belief, and as such is hung, but people who have not denied the principle of belief are not hung after their execution.

This disagreement is an opportunity for understanding logical principles: The rabbis used a principle called כְּלָלֵי וּפְרָטֵי, generalization and distinction, whereas Rabbi Eliezer relied on the principle of רִיבּוּיֵי וּמִיעוּטֵי, amplifications and restrictions. For the rabbis, the issue of denying the principle is a detail that requires limiting the rule to that specific transgression; for Rabbi Eliezer, however, the distance between the generalization and the detail means that the detail does not apply and therefore all those who are stoned should be hung.

This is followed by other demonstrations of similar interpretive principles on the same issue. For example, the words ״וְתָלִיתָ אֹתוֹ״ (and you shall hang him) is taken by sages to mean that hanging is only for men (him, not her), and by Rabbi Eliezer to mean that the man is to be hung naked (just him, without his clothes). The rabbis agree with Rabbi Eliezer, but derive the idea that women should not be hung from the verse ״וְכִי יִהְיֶה בְאִישׁ חֵטְא״ (and if a man, as opposed to a woman has committed a sin). This leads the sages to debate whether the hanging-after-stoning procedure befits the scenario of a rebellious child (בֵּן סוֹרֵר וּמוֹרֶה).

It’s worth pausing briefly to explain that the issue of the rebellious child, and the atrocious capital punishment the bible has in store for him, is something that bothered generations of biblical exegetes, to the point that it’s been interpreted in absurdly restrictive ways to ensure that no one walks away from reading biblical verse thinking that children should be put to death. So the sages’ conversation about this is purely theoretical, an exercise in logic, even though the raw material they use is beyond disturbing (one has to wonder whether these conversations actually took place, and if so, if they troubled any of the speakers and listeners).

Anyway, back to the rebellious child’s hanging-after-stoning. According to Reish Lakish, that the verse uses the term אִישׁ (man) means that children are to be excluded. But Rabbi Eliezer thinks that the mention of the word חֵטְא (sin) implies that the rebellious child was to be included in the hanged-after-stoning category.

At this point, the page moves on to the question whether a court may pronounce two death sentences on the same day. The sages discuss a supposed historical precedent in which Shimon ben Shatah ordered the hanging of eighty women on the same day, and Rav Hisda explains it away hypertechnically: all the women were executed in the same manner, and thus it was one death sentence (but for multiple people). A more precise restatement of Rav Hisda’s principle is that the announcement of multiple executions is permissible only when the transgression, as well as the mode of execution, are the same (but, remember, for multiple people). This principle, they explain, applies even to people mixed up in the same transgression: adulterers, violators of purity laws, transgressors and perjured witnesses who testified for them.

To the extent that there’s anything to this beyond logic games, I can think of two ideas. The first that announcing capital punishment is something that should be seriously considered, and that the court must focus on each case individually–which means that, even in the context of the same scheme, people’s situation should be individually addressed. The second has to do with the interplay between different people mixed up in the same scheme, whose culpability might not be equal. It is only in cases that seem identical in terms of transgression and punishment that the sages may consider them on the same day (this reminds me a lot of David Sudnow’s “Normal Crimes,” and how quick we are to dispose of cases that appear to be the same and do not present any unusual features).

In any case, here the case shifts to something else: the fact that courts might issue harsh sentences beyond those prescribed in the Torah:

תַּנְיָא, רַבִּי אֱלִיעֶזֶר בֶּן יַעֲקֹב אוֹמֵר: שָׁמַעְתִּי שֶׁבֵּית דִּין מַכִּין וְעוֹנְשִׁין שֶׁלֹּא מִן הַתּוֹרָה, וְלֹא לַעֲבוֹר עַל דִּבְרֵי תוֹרָה, אֶלָּא כְּדֵי לַעֲשׂוֹת סְיָיג לַתּוֹרָה.

It is taught in a baraita: Rabbi Eliezer ben Ya’akov says: I heard that the court may administer lashes and capital punishment, even when not required by Torah law. And they may not administer these punishments with the intention of violating the statement of the Torah, i.e., to disregard the punishment stated in the Torah and administer another punishment; rather, they may administer these punishments to erect a fence around the Torah, so that people will fear sinning.

And we’re given two examples:

וּמַעֲשֶׂה בְּאֶחָד שֶׁרָכַב עַל סוּס בְּשַׁבָּת בִּימֵי יְוָנִים, וֶהֱבִיאוּהוּ לְבֵית דִּין וּסְקָלוּהוּ, לֹא מִפְּנֵי שֶׁרָאוּי לְכָךְ, אֶלָּא שֶׁהַשָּׁעָה צְרִיכָה לְכָךְ.

And an incident occurred involving one who rode a horse on Shabbat during the days of the Greeks, and they brought him to court and stoned him, not because he deserved that punishment, as riding a horse on Shabbat is forbidden only by rabbinic decree, but because the hour required it, as people had become lax in their observance of Shabbat and therefore it became necessary to impose the severe punishment for a relatively minor offense.

Riding a horse on Shabbat became a serious business because it occurred “in the days of the Greeks,” meaning, during the Hellenistic culture wars, which were characterized by religious oppression and ferocious inner strife between adherents and assimilationists.

The other example involves a man who slept with his wife under a fig tree and was flogged, again, לֹא מִפְּנֵי שֶׁרָאוּי לְכָךְ, אֶלָּא שֶׁהַשָּׁעָה צְרִיכָה לְכָךְ: presumably, modesty has become lax and people needed a reminder. The minor transgression reminds me of Durkheim’s “society of saints” example in The Division of Labor in Society:

Imagine a society of saints, a perfect cloister of exemplary individuals. Crimes, [commonly] so called, will there be unknown; but faults which appear venial to the layman will create there the same scandal that the ordinary offense does in ordinary consciousness. If then, this society has the power to judge and punish, it will define these acts as criminal and will treat them as such.

Durkheim and the talmudic sages are aware of the power of enforcement in awakening the collective conscience: any society will have a certain amount of punishment and deviation, because it serves an important social role. When norms become lax, or when there’s an important reason to issue a stern reminder, relatively minor transgressors will be made into examples.

But maybe, following Durkheim, there’s another important role that our Shabbat horseback rider plays–one that the sages did not intend. Durkheim uses the example of the execution of Socrates:

According to Athenian law, Socrates was a criminal and his condemnation was just. However, his crime – his independence of thought – was useful not only for humanity but for his country. It served to prepare a way for a new morality and a new faith, which the Athenians then needed because the traditions by which they had hitherto lived no longer corresponded to the conditions of their existence. Socrates’ case is not an isolated one, for it recurs periodically in history. (1895/1982: 102)

Could it be that our horseback rider is reminding his astonished community that, in Hellenistic times, it is perhaps less important to insist on dogged pursuit of the rules and more important to survive? And could it be that the couple making love under the fig tree are reminding their community that outdoor lovemaking can be great fun and is not a big deal? These are possibilities that the talmudic sages are, understandably, not too interested in pursuing.

The remainder of today’s page deals with the question of burying those who were executed. If, and how, to mourn the condemned is a matter discussed in detail, with the logical effort directed at distinguishing undue honors from keeping propriety and dignity after death. The most poignant part of this discussion is:

וְלֹא הָיוּ מִתְאַבְּלִין, אֲבָל אוֹנְנִין, שֶׁאֵין אֲנִינוּת אֶלָּא בַּלֵּב.

And the relatives of the executed man would not mourn him with the observance of the usual mourning rites, so that his unmourned death would atone for his transgression; but they would grieve over his passing, since grief is felt only in the heart.

This reminded me of the beautiful aria sung by the mother of the condemned in Jake Heggie’s beautiful aria Dead Man Walking:

Tomorrow’s page continues the question of mourning the condemned.

Gender Differences in Punishment: b.Sanhedrin 45

Today’s daf starts with things that are quite difficult to talk about: stoning procedures. I’m not going to flinch away from this, though, because to this day, about half of U.S. states have elaborate execution protocols that might masquerade as being more humane, but actually hide a multitude of botched executions. We have to openly discuss state-sanctioned death, no matter how much we now medicalize executions and tuck them behind closed doors, they are part and parcel of our legal system at present. While the talmudic discussion feels cold and crass, it’s important to remember that it was theoretical: not only did they have no power to execute people, and they were reminiscing, but it is also highly unlikely that executions were very common during the Sanhedrin time. So much of this is speculation about execution proceedings that might harken to biblical times.

Anyway, the amoraic discussion starts with a quote from a mishna, according to which the proceedings for preparing condemned men and women for stoning differ: either the woman is a bit more covered up than the man or the man is completely naked and the woman is not. From here on, the sages matter-of-factly turn to examining the differences in procedure. Their point of departure is Leviticus 24:14, the provenance of the whole stoning debacle, where the text refers to a male transgressor and does not, seemingly, allow for the stoning of a female transgressor. This, however, contrasts with the text in Deuteronomy 17:5, which refers to both genders as candidates for stoning: “And you shall bring forth that man or that woman… and stone them with stones until they die.” And if this wasn’t distressing enough, here’s where things take an even uglier turn.

לְמֵימְרָא דְּרַבָּנַן חָיְישִׁי לְהִרְהוּרָא, וְרַבִּי יְהוּדָה לָא חָיֵישׁ לְהִרְהוּרָא? וְהָא אִיפְּכָא שְׁמַעְנָא לְהוּ, דִּתְנַן: הַכֹּהֵן אוֹחֵז בִּבְגָדֶיהָ – אִם נִקְרְעוּ נִקְרְעוּ, וְאִם נִפְרְמוּ נִפְרְמוּ, עַד שֶׁמְּגַלֶּה אֶת לִבָּהּ וְסוֹתֵר אֶת שְׂעָרָהּ. רַבִּי יְהוּדָה אוֹמֵר: אִם הָיָה לִבָּהּ נָאֶה לֹא הָיָה מְגַלֵּהוּ, וְאִם הָיָה שְׂעָרָהּ נָאֶה לֹא הָיָה סוֹתְרוֹ.

The Gemara asks: Is this to say that the Rabbis are concerned that the sight of a naked woman will arouse sexual thoughts among the onlookers, and Rabbi Yehuda is not concerned about such sexual thoughts? But didn’t we hear them say just the opposite, as we learned in a mishna (Sota 7a) with regard to a sota, a woman suspected of adultery by her husband, and who was made to undergo the ordeal of the bitter waters: And the priest grabs hold of her clothing and pulls it, without concern about what happens to it. If the clothes are torn, they are torn; if the stitches come apart, they come apart. And he pulls her clothing until he reveals her heart, i.e., her chest. And then he unbraids her hair. Rabbi Yehuda says: If her heart was attractive he would not reveal it, and if her hair was attractive he would not unbraid it. This seems to indicate that it is Rabbi Yehuda who is concerned about the sexual thoughts of the onlookers.

The concern, you see, is that onlookers might find the spectacle of a naked woman, even as she is on the verge of execution, sexually arousing. And the gemara seems to think this was Rabbi Yehuda’s concern in finding that women should be stoned fully clothed: analogizing from another biblical punishment, the forcing of bitter waters on an adulterous woman, they seem to think that the humiliation is part of the spectacle and want to prevent it becoming a sideshow. But wait, there’s more:

אָמַר רַבָּה: הָתָם הַיְינוּ טַעְמָא, שֶׁמָּא תֵּצֵא מִבֵּית דִּין זַכָּאָה וְיִתְגָּרוּ בָּהּ פִּירְחֵי כְּהוּנָּה. הָכָא הָא מִקַּטְלָא. וְכִי תֵּימָא: אָתֵי לְאִיתְגָּרוֹיֵי בְּאַחְרָנְיָיתָא? אָמַר רַבָּה: גְּמִירִי, אֵין יֵצֶר הָרָע שׁוֹלֵט אֶלָּא בְּמִי שֶׁעֵינָיו רוֹאוֹת.

Rabba said: There, in the case of a sota, this is the reason that Rabbi Yehuda says that the priest does not reveal the woman’s chest or unbraid her hair: Perhaps the sotawill leave the court having been proven innocent, and the young priests in the Temple who saw her partially naked will become provoked by the sight of her. Here, in the case of a woman who is stoned, she is killed by being stoned, and there is no concern about the onlookers’ becoming provoked after her death. The Gemara comments: And if you would say that the fact that she is killed is irrelevant to their having sexual thoughts because the onlookers will be provoked with regard to other women, this is not a concern, as Rabba says: It is learned as a tradition that the evil inclination controls only that which one’s eyes see.

Rabba is distinguishing between the bitter waters issue and the stoning issue, arguing that the latter spectacle is unlikely to sexually provoke men after death in the same way that the bitter waters spectacle for adulteresses is. Indeed, in trying to resolve the contradiction, Rava explains that in the case of the adulteress, part of the sentence includes chastening and disgrace, whereas for a stoned woman, the stoning in itself is the disgrace:

דְּרַבָּנַן אַדְּרַבָּנַן נָמֵי לָא קַשְׁיָא. אָמַר קְרָא: ״וְנִוַּסְּרוּ כׇּל הַנָּשִׁים וְלֹא תַעֲשֶׂינָה כְּזִמַּתְכֶנָה״. הָכָא, אֵין לְךָ יִיסּוּר גָּדוֹל מִזֶּה.

Rava continues: The contradiction between one ruling of the Rabbis and the other ruling of the Rabbis is not difficult either. With regard to a sota, the verse states that other women should be warned: “Thus will I cause lewdness to cease out of the land, that all women may be chastened not to do like your lewdness” (Ezekiel 23:48). In order to serve as an example and warning to other women, a woman suspected of adultery must undergo public disgrace, and therefore the concern about the sexual thoughts that her partially naked body might arouse is disregarded. Here, with regard to stoning, you have no chastening greater than seeing this stoning itself.

Lest you might think that these concerns about the public spectacle of executing women is unique to the gemara, the issue of gender in corporal punishment is present in all cultures. When Malcolm Feeley and I worked on our social history project, we were investigating a phenomenon that Malcolm, along with Deborah Little, uncovered when they studied sentencing in the Old Bailey: the gradual disappearance of the female offender. They discovered that, over the course of the long Nineteenth century, the numbers women, who used to be about half (sometimes more) of the convicts in court, begin to considerably dwindle. This cannot be explained away solely through the disappearance of offenses typically enforced against women (witchcraft, infanticide, adultery, etc.), by the return of men from war, or by the presence of more dominant male accomplices. When I joined the project, we expanded the historical inquiry to cover other countries: France, the Netherlands, Belgium, Germany. We found the same things, even as different regions differed in terms of local wars (that would remove the men from the list of potential offenders/defendants).

We came to the conclusion that the disappearance of female offenders was probably a combination of two shifts. The first was a decline in women’s opportunities to commit crime due to a change in patriarchal style, from public to private. While patriarchal regimes are present since antiquity (as today’s daf proves), women were very much part of the life of the market, the public square, etc. We have Medieval and Renaissance and Early Modern accounts of women as business proprietors, mixed in with the underworld. But the industrial revolution ushers a domestication of middle-class women and a gender segregation of working-class woman into gendered factories and into domestic service in households, which would reduce their opportunities for mixing up in scenarios that involve property crime, etc. The second factor in the decline, we hypothesized, was a decline in public willingness to drag women into the limelight of the criminal process, except in some sensationalized cases. Our colleague Lucia Zedner believes that some of this reflects a “bad-to-mad” shift, where women’s transgressions are medicalized and pathologized rather than medicalized. And our colleague Nicola Lacey documents the increasingly disempowered description of women offenders in period literature. There seems to be an idea that echoes the talmudic sages’ concerns – a notion that it is somehow unchivalrous to publicly criminalize and punish women, which is echoed by criminological theories from the 1950s and 1960s.. But then, Rav Nachman quotes Rabba bar Avuh as stating that minimizing the suffering of condemned women is more of a universal principle, stemming from our care for one another:

וְכִי תֵּימָא: לֶיעְבֵּיד בַּהּ תַּרְתֵּי? אָמַר רַב נַחְמָן אָמַר רַבָּה בַּר אֲבוּהּ: אָמַר קְרָא ״וְאָהַבְתָּ לְרֵעֲךָ כָּמוֹךָ״ – בְּרוֹר לוֹ מִיתָה יָפָה.

And if you would say that two forms of chastening, both stoning and humiliation, should be done to her, Rav Naḥman says that Rabba bar Avuh says: The verse states: “You shall love your neighbor as yourself” (Leviticus 19:18), teaching that even with regard to a condemned prisoner, select a good, i.e., a compassionate, death for him. Therefore, when putting a woman to death by stoning, she should not be humiliated in the process.

But what counts as “a beautiful death” is malleable, and might encompass some gender differences–particularly about the question whether the priority is to minimize public humiliation (e.g., a dignified death) or corporal sufering (e.g., a painless death). And isn’t this exactly the sort of thing that animates our endless litigation and public debate about what can strip death of its “cruel and unusual” features, supposedly making it “kind and usual”?

לֵימָא: דְּרַב נַחְמָן תַּנָּאֵי הִיא? לָא, דְּכוּלֵּי עָלְמָא אִית לְהוּ דְּרַב נַחְמָן, וְהָכָא בְּהָא קָמִיפַּלְגִי: מָר סָבַר בִּזְיוֹנֵי דְאִינִישׁ עֲדִיף לֵיהּ טְפֵי מִנְּיָחָא דְגוּפֵיהּ, וּמָר סָבַר נְיָחָא דְגוּפֵיהּ עֲדִיף מִבִּזְיוֹנֵיהּ.

The Gemara suggests: Let us say that whether one rules in accordance with the statement of Rav Naḥman is a dispute between tanna’im, and according to Rabbi Yehuda there is no mitzva to select a compassionate death. The Gemara refutes this: No, it may be that everyone agrees with the opinion of Rav Naḥman, and here they disagree about this: One Sage, i.e., the Rabbis, holds: Minimizing one’s degradation is better for him than seeing to his physical comfort, i.e., than minimizing his physical pain. Therefore, the Rabbis view the more compassionate death as one without degradation, even if wearing clothes will increase the pain of the one being executed, as the clothes will absorb the blow and prolong his death. And one Sage, Rabbi Yehuda, holds that one’s physical comfort is better for him than minimizing his degradation, and therefore the one being executed prefers to be stoned unclothed, without any chance of the clothing prolonging his death, even though this increases his degradation.

The gemara then proceeds to discuss stoning procedures designed to minimize suffering and raise accountability, e.g., requiring the incriminating witnesses to cast the first stone and thus take responsibility for the outcome of their actions. But the notion that humanizing death is a consequence of loving another as one own can be difficult to swallow. And yet, ever since capital punishment litigation eroded to a point of having protracted, sanitized discussions of whether to use one injection or three, this or that chemical, aren’t we essentially engaging in the same exercise to this day? The fact that the death penalty is on its last legs in the U.S. (I still think so, even with the current administration) makes its last bites especially vicious.

Idaho vs. Bryan Kohberger: Motions to Suppress

I just found the footage of oral arguments in Idaho in the matter of Bryan Kohberger’s motion to suppress the evidence against him. Most of the hearing was sealed, but the public portion begins at 5:20:

The first issue, the IGG identification suppression, seems to me dead on arrival. The defense argues that a warrant was needed to obtain the DNA evidence from the knife, move the DNA snippet to the lab, transfer it to the FBI, and search the trash. CA v. Greenwood disposes of all these issues quite neatly: anything you discharge is fair game. The defense complains about the absence of transparency regarding the chain of evidence, but that’s a confrontation issue, not an admissibility issue.

The second issue, the Franks motion, is worth explaining. A Franks motion seeks to suppress evidence obtained pursuant to a warrant that was itself obtained through false information. The defense argues that the one eyewitness who saw the perpetrator gave a statement that included admissions of confusion and sleepiness, which were removed from the affidavit. The defense also argues that the identification of the car was presented as more definite than what it actually was (including some uncertainty on the part of the FBI regarding the estimated year of the car). The prosecution responded that the level of detail the defense expected was not necessary for a determination of probable cause.

Recanting Witnesses: b. Sanhedrin 44

Most of today’s daf addresses the stoning of Achan during the conquer of the city of Ai, with the sages debating the gravity of his sins, the collective punishment, and the method of execution. This digression is apropos the previous page’s focus on execution procedures. At the end of the page, though, the sages return to matters of postconviction review. What happens if a person declares, on the verge of being executed, that he is innocent?

As habeas corpus connoisseurs know, a claim of actual innocence, even when accompanied by proof, is not immediate grounds for reversal. In Herrera v. Collins, Chief Justice Rehnquist wrote a blood-curdling majority opinion according to which executing a man who makes a claim of innocence based on new evidence does not violate the Eighth Amendment unless some constitutional violation is stated. The only thing actual innocence can do for you is excuse your procedural default, your failure to raise proper arguments in previous hearings (in other words, actual innocence overcomes the Cause and Prejudice threshold test for even entering the habeas process.) In Schlup v. Delo, a man pursued habeas relief for his conviction of the death of a fellow inmate on the word of two corrections officers who had witnessed the murder. But on habeas, Schlup wanted to introduce a videotape from a surveillance camera showing him at a different location in the prison at the time of the murder. Because the videotape evidence had not been presented at trial, ordinarily Schlup would have been barred from presenting it on habeas; but because of his persuasive claim of actual innocence, this initial barrier was removed.

How would someone arguing actual innocence fare before the Sanhedrin? Not that great, as it turns out:

תָּנוּ רַבָּנַן: מַעֲשֶׂה בְּאָדָם אֶחָד שֶׁיָּצָא לֵיהָרֵג. אָמַר: אִם יֵשׁ בִּי עָוֹן זֶה, לֹא תְּהֵא מִיתָתִי כַּפָּרָה לְכׇל עֲוֹנוֹתַי. וְאִם אֵין בִּי עָוֹן זֶה, תְּהֵא מִיתָתִי כַּפָּרָה לְכׇל עֲוֹנוֹתַי, וּבֵית דִּין וְכׇל יִשְׂרָאֵל מְנוּקִּין, וְהָעֵדִים לֹא תְּהֵא לָהֶם מְחִילָה לְעוֹלָם. וּכְשֶׁשָּׁמְעוּ חֲכָמִים בַּדָּבָר, אָמְרוּ: לְהַחְזִירוֹ אִי אֶפְשָׁר, שֶׁכְּבָר נִגְזְרָה גְּזֵירָה. אֶלָּא יֵהָרֵג, וִיהֵא קוֹלָר תָּלוּי בְּצַוַּאר עֵדִים.

The Sages taught: An incident occurred involving a person who was being taken out to be executed after having been convicted by the court. He said: If I committed this sin for which I am being executed, let my death not be an atonement for all my sins; but if I did not commit this sin for which I am being put to death, let my death be an atonement for all my sins. And the court that convicted me and all the people of Israel are clear of responsibility, but the witnesses who testified falsely against me will never be forgiven. And when the Sages heard this, they said: It is impossible to bring him back to court and reconsider the verdict, as the decree has already been decreed. Rather, he shall be executed, and the chain of responsibility for his wrongful execution hangs around the necks of the witnesses.

This chilling story involves a man who claims, albeit without evidence, that he is innocent. He’s given up hope of justice emerging for him at the last minute, and expresses his willingness to face death for other sins he might have committed, but launches a last-words accusation against the witnesses who perjuted themselves to incriminate him. The man from the story is echoed, almost word for word, by Herrera, who before his 1993 execution said: “I am innocent, innocent, innocent. And something very wrong is happening tonight.”

Chief Justice Rehnquist would have found some likeminded friends among the Bavli sages. The gemara continues to ask whether it isn’t obvious that a claim of innocence without proof could not lead to a reversal of judgment. But the sages continue to state that, even in the face of witnesses recanting testimony, the execution decree stands:

פְּשִׁיטָא, כֹּל כְּמִינֵּיהּ? לָא צְרִיכָא דְּקָא הָדְרִי בְּהוּ סָהֲדִי.

The Gemara asks: Isn’t it obvious that he should be executed? Is it in his power to have his sentence overturned just because he says he is innocent? The Gemara answers: No, it is necessary to state that the condemned man is executed even when the witnesses retracted their testimony.

The reason for this is a classic appeal to finality:

וְכִי הָדְרִי בְּהוּ, מַאי הָוֵי? כֵּיוָן שֶׁהִגִּיד, שׁוּב אֵינוֹ חוֹזֵר וּמַגִּיד! לָא צְרִיכָא, דְּאַף עַל גַּב דְּקָא יָהֲבִי טַעְמָא לְמִילְּתַיְיהוּ, כִּי הָהוּא מַעֲשֶׂה דְּבַעְיָא מֹכְסָא.

The Gemara asks: Even if the witnesses retracted their testimony, what of it? It is still clear that the condemned man is to be executed, as the halakha is that once a witness has stated his testimony, he may not then state a revision of that testimony. In other words, a witness’s retraction of his testimony has no validity. The Gemara answers: No, it is necessary to state that the condemned man is executed even when the witnesses retracted their testimony and gave an explanation for having lied in their initial statement. This is like that incident involving Ba’aya the tax collector, where it was discovered that witnesses had falsely accused the son of Rabbi Shimon ben Shataḥ in revenge for the son’s having sentenced to death for sorcery the witnesses’ relatives.

Why would the Talmud not make room for recanting witnesses to disavow their perjured testimony in time? One can glean two reasons. First, there is the matter of incentivizing witnesses to tell the truth; providing incriminating testimony has consequences in the real world, which people don’t like to face. In the second season of the podcast Proof, Jacinda Davis and Susan Simpson interview the people who testified against Jake Silva at his trial for the murder of Renée Ramos. It’s clear from the interviews that these witnesses, teenagers themselves at the time, were pressured by the police, and didn’t quite know what they were talking about. Yet when prodded to consider the consequences of their testimony–two likely wrongful convictions, Ty murdered behind bars, Jake incarcerated for decades and savagely attacked by another prisoner–they are embarrassed and evasive, as if they don’t want to confront the consequences. Having the consequences play out is harsh, to say the least, and it is a lesson for everyone else to do the right thing.

The second reason has to do with undermining the credibility of the witnesses. The gemara takes the trouble to state that the sentence still stands even after the witnesses provide an explanation for their perjury. This is a tough pill to swallow, and it is a grim reminder of the injustice of the Troy Davis case, in which seven of the nine prosecution witnesses recanted, citing police coercion. But when one now says that they lied before, without cross examination or a court proceeding to examine their veracity, what can we say about their credibility now in light of their lack of credibility then? Where one stands on these matters might correlate quite a bit with one’s position on the spectrum between Packer’s Due Process and Crime Control models. Due Process fans will urge to halt the execution, reopen the proceeding, hear the recanting witnesses, and see what’s what. Crime Control fans will urge an end, at some point, to the proceedings, so that closure can begin. Most of us are somewhere along that spectrum.

Postconviction Finality and Innocence Claims: b.Sanhedrin 43

Today’s daf continues the conversation about capital punishment via stoning. There are several things of interest, including a blood-curdling description of arguments between Jesus’ disciples and the Sanhedrin regarding their execution (I can see this stuff being used to corroborate the blood libel stuff from Matthew). But there’s also an interesting dispute about finality of postconviction review.

When Herbert Packer wrote The Limits of the Criminal Sanction, the Warren Court was hard at work reforming and federalizing constitutional protections for suspects and defendants by incorporating the Bill of Rights against the states. Witnessing this revolution, Packer contrasted two theoretical models: the Crime Control model, which prioritized efficiency and case management, and the Due Process model, which prioritized quality control and the prevention of mistakes. The latter represented the historical processes that Packer saw unfold during the incorporation process.

One important aspect of the contrast was the changing approach to finality. The Crime Control model operates under the assumption that the police and prosecution probably got it right (Packer calls this “the presumption of guilt”) and thus no corrective postconviction processes will be necessary. The Due Process model, by contrast, aims at providing opportunities to reverse wrongful convictions, opening up appellate and habeas corpus proceedings. Indeed, during the 1960s, the federal habeas corpus writ was widely expanded to accommodate reviews of state criminal convictions. But the post-Warren courts, informed by a Crime Control logic, proceeded to narrow the reach of habeas, by limiting the sort of cases that could be subject to review, the kinds of arguments one could make, and the retroactive application of new rules (here’s a good history of the whole thing.)

The balance between finality and truth is a tough one to strike. On one hand, the collective nightmare of the criminal process is a wrongful conviction, and the worst of the worst is the execution of an innocent person. On the other hand, endlessly dragging the criminal process is torturous to everyone, including the victims, when the delays are just an exploitation of the system. So how do we know when to set the limit?

The first issue that comes up is the question of argument. What happens if one of the Sanhedrin students wants to make an exculpatory argument but cannot?

בְּעָא מִינֵּיהּ רַב אַחָא בַּר הוּנָא מֵרַב שֵׁשֶׁת: אָמַר אֶחָד מִן הַתַּלְמִידִים ״יֵשׁ לִי לְלַמֵּד עָלָיו זְכוּת״, וְנִשְׁתַּתֵּק, מַהוּ? מְנַפַּח רַב שֵׁשֶׁת בִּידֵיהּ. נִשְׁתַּתֵּק? אֲפִילּוּ אֶחָד בְּסוֹף הָעוֹלָם נָמֵי! הָתָם לָא קָאָמַר, הָכָא קָאָמַר. מַאי?

§ Rav Aḥa bar Huna asked Rav Sheshet: If one of the students sitting before the judges said: I can teach a reason to acquit him, and he became mute and cannot explain himself, what is the halakha in such a case? Does the court take heed of his words, or do they disregard him? Rav Sheshet waved his hands in scorn and said: If the student became mute, the court certainly does not pay attention to him, as were the court to concern themselves with what he said, they would have to be concerned even that perhaps there is someone at the end of the world who can propose an argument in the condemned man’s favor. The Gemara rejects this argument: The cases are not similar. There, no one said that he had a reason to acquit the condemned man. Here, the student already said that he had a reason to acquit the condemned man. The question, therefore, is appropriate. What is the halakha in such a case?

In other words, if we were to pay attention to every claim: “The condemned man is innocent!” without any reasoning, we would never be able to execute anyone, as we would have to account for the possibility that others–maybe even at the end of the world–want to cry out about innocence without explaining. The sages try to draw an analogy to a situation in which the student wanted to make exculpatory arguments and then died:

תָּא שְׁמַע, דְּאָמַר רַבִּי יוֹסֵי בַּר חֲנִינָא: אֶחָד מִן הַתַּלְמִידִים שֶׁזִּיכָּה וָמֵת, רוֹאִין אוֹתוֹ כְּאִילּוּ חַי וְעוֹמֵד בִּמְקוֹמוֹ. זִיכָּה – אִין, לֹא זִיכָּה – לָא.

The Gemara suggests: Come and hear an answer: As Rabbi Yosei bar Ḥanina says: In a case where there was one of the students who argued to acquit the defendant and then died, the court views him as if he were alive and standing in his place and voting to acquit the defendant. The implication is that if he argued to acquit the defendant and explained his reasoning, yes, the court counts his vote as if he were still alive. But if he did not actually argue to acquit the defendant, but only said that he wished to propose such an argument, his vote is not counted as though he were still alive.

Here, too, the logic is that a mere exclamation without reasoning does not count as a vote to acquit; but if the exculpatory arguments were made prior to the student’s death, we have an indication as to their merit and take them into account. One might think about the many delayed habeas cases in which people who were sitting on exculpatory evidence retired or died–including, for example, someone else confessing to the crime. The sages are conflicted about what to do in this scenario.

זִיכָּה – פְּשִׁיטָא לִי; אָמַר – תִּיבְּעֵי לָךְ.

The Gemara rejects this proof: If the student argued to acquit the defendant, it is obvious to me that he should be counted among those favoring acquittal. But if he only says that he wishes to propose such an argument, let the dilemma be raised whether or not he should be regarded as having presented a convincing argument in favor of acquittal. The question is left unresolved.

Another possible analogy has to do with situations in which the condemned man himself wishes to present exculpatory evidence, and here we see the sages erring on the Due Process side, by allowing the defendant several rounds of appeal, even if the arguments he makes on his own behalf are not very strong:

אֲפִילּוּ הוּא כּוּ׳. וַאֲפִילּוּ פַּעַם רִאשׁוֹנָה וּשְׁנִיָּה? וְהָתַנְיָא: פַּעַם רִאשׁוֹנָה וּשְׁנִיָּה, בֵּין שֶׁיֵּשׁ מַמָּשׁ בִּדְבָרָיו בֵּין שֶׁאֵין מַמָּשׁ בִּדְבָרָיו – מַחְזִירִין אוֹתוֹ. מִכָּאן וָאֵילָךְ, אִם יֵשׁ מַמָּשׁ בִּדְבָרָיו – מַחְזִירִין אוֹתוֹ, אֵין מַמָּשׁ בִּדְבָרָיו – אֵין מַחְזִירִין אוֹתוֹ.

The mishna teaches: And even if he, the condemned man himself, says: I can teach a reason to acquit myself, he is returned to the courthouse even four or five times, provided that there is substance to his words. The Gemara asks: And is the halakha that there must be substance to his words even the first and second time that the condemned man says that he can teach a reason to acquit himself? But isn’t it taught in a baraita: The first and second times that he says that he can teach a reason to acquit himself, they return him to the courthouse and consider whether there is substance to his statement or there is no substance to his statement. From this point forward, if there is substance to his statement they return him to the courthouse, but if there is no substance to his statement, they do not return him. This appears to contradict the mishna.

It looks like the first appeal/review is granted to the condemned person regardless of the strength of his arguments. But from the second appeal onward, the gemara details a process for investigating the merit of the person’s claims:

אָמַר רַב פָּפָּא: תַּרְגּוּמַהּ מִפַּעַם שְׁנִיָּה וְאֵילָךְ.

Rav Pappa said: Explain that the mishna’s ruling applies only from after the second time forward, that from that point on we examine whether there is substance to his words.

מְנָא יָדְעִי? אָמַר אַבָּיֵי: דְּמָסְרִינַן לֵיהּ זוּגָא דְּרַבָּנַן. אִי אִיכָּא מַמָּשׁ בִּדְבָרָיו – אִין, אִי לָא – לָא.

The Gemara asks: How do we know whether or not there is substance to his words? Abaye said: If the condemned man has already been returned twice to the courthouse, we send a pair of rabbis with him to evaluate his claim. If they find that there is substance to his statement, yes, he is returned once again to the courthouse; if not, he is not returned.

But if that’s the case, why not conduct an investigation on the merits to begin with? The gemara demonstrates some psychological finesse here: the first appeal, at least, could be a desperate act, rather than a reasoned argument for innocence, and there are good grounds to encourage empathy and propriety and signal to the public that the court is open to reconsider even if it turns out that the argument is meritless. But afterwards, merits have to be assessed so as not to waste the court’s time:

וְלִימְסַר לֵיהּ מֵעִיקָּרָא? אַגַּב דִּבְעִית, לָא מָצֵי אָמַר כֹּל מַאי דְּאִית לֵיהּ.

The Gemara asks: But why not send a pair of rabbis with him from the outset, even the first time, and have them make an initial assessment of his claim? The Gemara answers: Since a man facing execution is frightened by the thought of his impending death, he is not able to say all that he has to say, and perhaps out of fear he will be confused and not provide a substantial reason to overturn his verdict. Therefore, the first two times he is returned to the courthouse without an initial examination of his arguments. Once he has already been returned on two occasions, the court allows for no further delay, and they send two rabbis to evaluate his claim before returning him a third time.

The issue of the optics of justice also comes up in discussing the mishna regarding an announcement of executions. The mishna requires not only announcing the time and place of the stoning, but also the details of the offense, including the place and time, so that any people with information that can impeach the prosecution’s witnesses can come forward with exculpatory evidence:

מַתְנִי׳ מָצְאוּ לוֹ זְכוּת – פְּטָרוּהוּ, וְאִם לָאו – יוֹצֵא לִיסָּקֵל. וְכָרוֹז יוֹצֵא לְפָנָיו: ״אִישׁ פְּלוֹנִי בֶּן פְּלוֹנִי יוֹצֵא לִיסָּקֵל עַל שֶׁעָבַר עֲבֵירָה פְּלוֹנִית, וּפְלוֹנִי וּפְלוֹנִי עֵדָיו. כׇּל מִי שֶׁיּוֹדֵעַ לוֹ זְכוּת יָבֹא וִילַמֵּד עָלָיו״.

MISHNA: If, after the condemned man is returned to the courthouse, the judges find a reason to acquit him, they acquit him and release him immediately. But if they do not find a reason to acquit him, he goes out to be stoned. And a crier goes out before him and publicly proclaims: So-and-so, son of so-and-so, is going out to be stoned because he committed such and such a transgression. And so-and-so and so-and-so are his witnesses. Anyone who knows of a reason to acquit him should come forward and teach it on his behalf.

גְּמָ׳ אָמַר אַבָּיֵי: וְצָרִיךְ לְמֵימַר בְּיוֹם פְּלוֹנִי, וּבְשָׁעָה פְּלוֹנִית, וּבְמָקוֹם פְּלוֹנִי. דִּילְמָא אִיכָּא דְּיָדַעי וְאָתֵי וּמַזֵּים לְהוּ.

GEMARA:Abaye says: And the crier must also publicly proclaim that the transgression was committed on such and such a day, at such and such an hour, and at such and such a place, as perhaps there are those who know that the witnesses could not have been in that place at that time, and they will come forward and render the witnesses conspiring witnesses.

This is where we get into the fraught and painful matter of Jesus’ death sentence. Much of the antisemitic animus against Jews comes from the Gospel of St. Matthew, where Pontius Pilate, the Roman governor who ordered Jesus’ execution, essentially relies on the Sanhedrin’s judgment. The Talmud does not disabuse its readers of this version of the events. Jesus is presented as an inciter, but contrary to the New Testament view of a revolutionary, here he is presented as someone with strong connections with the Roman government, someone whom the Sanhedrin is somewhat wary of:

וְכָרוֹז יוֹצֵא לְפָנָיו. לְפָנָיו – אִין, מֵעִיקָּרָא – לָא. וְהָתַנְיָא: בְּעֶרֶב הַפֶּסַח תְּלָאוּהוּ לְיֵשׁוּ הַנּוֹצְרִי, וְהַכָּרוֹז יוֹצֵא לְפָנָיו אַרְבָּעִים יוֹם: ״יֵשׁוּ הַנּוֹצְרִי יוֹצֵא לִיסָּקֵל עַל שֶׁכִּישֵּׁף וְהֵסִית וְהִדִּיחַ אֶת יִשְׂרָאֵל. כׇּל מִי שֶׁיּוֹדֵעַ לוֹ זְכוּת יָבוֹא וִילַמֵּד עָלָיו״. וְלֹא מָצְאוּ לוֹ זְכוּת, וּתְלָאוּהוּ בְּעֶרֶב הַפֶּסַח.

The mishna teaches that a crier goes out before the condemned man. This indicates that it is only before him, i.e., while he is being led to his execution, that yes, the crier goes out, but from the outset, before the accused is convicted, he does not go out. The Gemara raises a difficulty: But isn’t it taught in a baraita: On Passover Eve they hung the corpse of Jesus the Nazarene after they killed him by way of stoning. And a crier went out before him for forty days, publicly proclaiming: Jesus the Nazarene is going out to be stoned because he practiced sorcery, incited people to idol worship, and led the Jewish people astray. Anyone who knows of a reason to acquit him should come forward and teach it on his behalf. And the court did not find a reason to acquit him, and so they stoned him and hung his corpse on Passover eve.

אָמַר עוּלָּא: וְתִסְבְּרָא? יֵשׁוּ הַנּוֹצְרִי בַּר הַפּוֹכֵי זְכוּת הוּא? מֵסִית הוּא, וְרַחֲמָנָא אָמַר: ״לֹא תַחְמֹל וְלֹא תְכַסֶּה עָלָיו!״ אֶלָּא שָׁאנֵי יֵשׁוּ, דְּקָרוֹב לְמַלְכוּת הֲוָה.

Ulla said: And how can you understand this proof? Was Jesus the Nazarene worthy of conducting a search for a reason to acquit him? He was an inciter to idol worship, and the Merciful One states with regard to an inciter to idol worship: “Neither shall you spare, neither shall you conceal him” (Deuteronomy 13:9). Rather, Jesus was different, as he had close ties with the government, and the gentile authorities were interested in his acquittal. Consequently, the court gave him every opportunity to clear himself, so that it could not be claimed that he was falsely convicted.

In other words, even though his crimes were severe, the Gemara states, every opportunity was awarded to try and acquit him so that no claims of wrongful conviction could be made later. Of course, we all know that these claims were not only made, but also bolstered by centuries of religious polemics, so the supposed effort at due process was ultimately unsuccessful. But disturbingly, these paragraphs suggest that the perception of Jesus’ supposed crimes was not only political, but also religious.

Even more disturbingly, the words מֵסִית הוּא (“he is an inciter”) can be interpreted in several different ways. The most benign one is that the evidence for his guilt was great. The less benign one was that his threat to the legitimacy of the Sanhedrin was so great that it could be thought appropriate to make an exception to the due process/postconviction rules. There is a whole mine of religious controversy that can emerge from all this, and the page goes on to describe the arguments between his students and the Sanhedrin in court. Tomorrow’s discussion continues on with all this, raising the question of confessions before executions.

Brian Kohberger Pretrial: Sealing Motions and Testing DNA

Over the weekend I got to listen to a Court TV Podcast episode in which journalist and lawyer Vinnie Pollitan discusses the upcoming trial of Brian Kohberger, who has been charged with the murder of four University of Idaho students–Kaylee Goncalves, Madison Mogen, Ethan Chapin and Xana Kernodle–at their off-campus home. Kohberger is a stranger to the victims and no direct evidence links him to the crime; one survivor has a description of a masked intruder, but it is rather generalized (she described his build and his eyebrows.)

You can watch, or listen to, the episode here:

One thing that is immediately evident is Pollitan’s ire at the court’s decision to seal the pretrial proceedings, which of course means we don’t know what is being argued in the motions. This is a rare proceeding nationwide, and in Idaho in particular; the United States often allows cameras in courtrooms and has no sub judice rule, which means that the media can and does report on court proceedings while they are ongoing. That this upsets journalists, who report on sensational, high-profile cases like this one, is obvious, but it seems that the court prefers this unusual step to having disclosures that could taint the jury pool (consider that the motion to change venue here was already approved, and the parties are banking on the ability of finding folks who have not heard of this case).

Meanwhile, the defense is hard at work trying to get the DNA evidence in this case suppressed. Its importance cannot be overrated given the paucity of physical or testimonial evidence. The only forensic link between the suspect and the crime scene was a tan leather knife sheath found at the scene, which, it is estimated, the perpetrator dropped while struggling with one of the victims. The knife itself has never been recovered, but the button snap of the sheath had a single source of male DNA on it.

The first investigative step was uploading the DNA from the sheath onto public genealogy sites, only some of which collaborate with law enforcement. The FBI built family trees of the genetic relatives to the suspect DNA and sent over a tip to investigate Kohberger. None of this, however, was mentioned in the affidavit for probable cause. Instead, the police based its probable cause on surveillance video showing a vehicle like the suspect’s close to the murder scene. An expert narrowed down the make, model, and approximate year of the vehicle, and campus police from a nearby university found such a vehicle was registered to Kohberger. DNA gathered from the Kohberger family home was found to be a familial match to the sheath DNA.

According to the affidavit, investigators homed in on Kohberger, at the time a Ph.D student in criminology at nearby Washington State University, by using surveillance video of a vehicle in the area around the time of the killings, physical descriptions of the suspect from a surviving witness and his cell phone location data. Further, detectives took DNA from the trash at the Kohberger family’s home in Pennsylvania and compared it to the DNA on the sheath, and identified “a male as not being excluded as the biological father of Suspect Profile,” according to the affidavit. Kohberger was then arrested on December 30, 2022.

The defense argues that the IGG (investigative genetic genealogy) evidence was insufficient for furnishing probable cause, and the prosecution responds that the IGG evidence is irrelevant, since the search warrant was sought and obtained on different grounds. I think the prosecution will have the upper hand here: the evidence will not be suppressed because the car identification is an independent source of evidence, which is an exception to the Fruit of the Poisonous Tree doctrine (see Murray v. U.S. for a similar example). Still, assuming only the genetic genealogical DNA evidence goes away and all they have is a vehicle and the suspect’s bushy eyebrows, it might arouse suspicion among the jury that they ended up with this defendant, a stranger to the victims and the area.