As I write this, hundreds of thousands of friends are protesting in Jerusalem, being beaten up by police thugs, as Israel’s theocratic, messianic government celebrates their massive success in eroding democracy. The first step was curtailing the type of discretion courts may apply when reviewing executive/administrative actions, by ruling out the use of “reasonability” as a standard. It should go without saying that whoever does not want their actions to be reviewed through a lens of reasonability is planning on doing unreasonable things, and given who is in government now and what their aims are–theocracy, annexation of Palestinian territories, etc.–it’s not a secret what these acts will be. After the new law passed, internal security minister Itamar Ben Gvir, a convicted terrorist who assaulted Palestinians and police officers and who never did a day of military service, tweeted, “the salad bar is open.” What more do you need to get a sense of where this is going?
I was going to write a long post, explaining the American implications, but Thomas Friedman did my job for me. Here he lists some ways in which the Israeli catastrophe can affect U.S. interests in the Middle East:
It should be obvious to every U.S. policymaker by now that Netanyahu’s cabinet, one that you described as one of the most “extreme” you’ve ever encountered, has its mind set on two dismantling projects.
One is to dismantle the power of the Supreme Court to rein in this government’s extreme agenda, and the other is to dismantle the Oslo peace process and its road map for a two-state solution, in order to pave the way for a unilateral Israeli annexation of the West Bank. Oslo has been a cornerstone of America’s Middle East policy since 1993.
These twin dismantlings are interconnected: the Jewish supremacists in Netanyahu’s cabinet need to get the Supreme Court out of the way in order to carry out their plans to annex the West Bank. Such a move could easily destabilize Jordan, as it would likely push more and more Palestinians there and change its fragile demographic balance. Jordan is the most important buffer state in the region for the U.S., which operates from Jordanian territory, in collaboration with Jordan, to deal with U.S. security threats from Syria and western Iraq, where ISIS forces continue to operate.
At the same time, Mr. President, you are wrestling with one of the biggest decisions ever involving U.S. strategy in the Middle East: whether to meet Saudi Arabia’s requests for a formal security guarantee from America, for a U.S.-overseen civilian nuclear program and for access to some of the most advanced U.S. arms. In return for this, Saudi Arabia would normalize its relations with Israel (provided that Israel makes some concessions to the Palestinians) and limit its collaboration with China.
It would be both difficult and unfortunate to get such a deal through Congress without strong support from Democrats in the Senate. As you know, Mr. President, Netanyahu and Saudi Crown Prince Mohammed bin Salman are two of the least popular world leaders among progressive Democrats, especially considering the way Netanyahu, over the past decade, moved to make support for Israel a Republican cause and spurned the embrace of secular American Jews for that of Christian evangelicals instead.
In short, winning enough support among Democrats to forge this complex deal with Saudi Arabia will be a huge lift on a good day; it will be even harder if Netanyahu neuters the Israeli Supreme Court — undermining our shared values of an independent judiciary — and moves ahead with plans to annex the West Bank. And without you as president, such a deal would be virtually impossible, because very few Democrats in the Senate would support it if it was pushed by a Republican president. In short, the window for this deal is small.
Moreover, in 2016 you and President Barack Obama signed a 10-year, $38 billion agreement to enhance Israel’s military. Are we supposed to just sit back and watch silently while that military — which we have made such a huge investment in to amplify our power projection in the Middle East — fractures over efforts to restrict the power of the Israeli Supreme Court? That would be a disaster for us and for Israel, which has real enemies like Iran and Hezbollah on its doorstep.
Also, we can already see that the extreme behavior of this Israeli government in expanding settlements in the West Bank is beginning to damage the historic relations forged by President Donald Trump between Israel and the U.A.E., Bahrain and Morocco with the Abraham Accords. All three Arab countries have been forced to cool their diplomatic ties with Israel.
Which leaves me to make a more minor comment, but important to me, anyway. I see a glaring failure on the part of U.S. Jewish authorities here. I suspect that Biden’s move to pick Friedman as his (able and well respected) messenger was calculated to reach the ears and minds of U.S. Jewry, especially those who are too apathetic or too hoodwinked by Netanyahu and Kohelet to reduce their ideological and financial support for this mess. It might have also been calculated for the benefit of the Jewish left (or, really, any left) that just waits to hear of more scandals to tarnish Israel completely, failing to distinguish between the government and its massive opposition.
This is not solely the audience’s fault: Before Friedman’s important reporting on this, U.S. coverage of recent Israel affairs tended to equate Israel’s 37th government with Israel itself. Generally speaking, U.S. media is very domestically focused compared to, well, every other country in the world, and on the rare occasions it reports on foreign affairs, it does so in an infantilizing and paternalistic way. To be fair, Netanyahu has been in government for so long that, for the ill-informed U.S. populace, it’s easy to identify him with the country he’s hijacked. Coverage of this mess has really diverged: U.S. newspapers extensively cover harm to Palestinian towns and villages (with good reason! Israeli media grossly and criminally downplays these horrors!) but remains mostly silent about the size and courage of the anti-government protest movement. To get a better idea of what is not being properly reported, imagine that half the U.S. had marched in the anti-Trump protests and risked serious violence by police and right-wing goons. The temperatures here are in the high 90s and, nonetheless, hundreds of thousands of people have walked by foot to Jerusalem, for days, to protest, and have taken over a park near the Knesset to continue their operations. Some have been injured, seriously even, by police water hoses and horses (poor, sensitive, gregarious creatures, again dragged into the depravity of homo sapiens.)
The outcome of all this is all too obvious to me, having lived in the United States for more than two decades. Pretty much every Israeli American has coped with hostile sentiments from both the right and the left. I won’t tire you with my “lived experience” of bigotry and ugliness, in some cases seriously career harming, because we don’t really need more earnest, whiny confessionals, nor will I get dragged into the tiresome and intractable problem of whether these noxious sentiments are antisemitic, anti-Zionist, or anti-Israeli (this is open to interpretation, and the sentiment is misguided and its expression sickening either way.) The bottom line is this: the more unconscionable governmental behavior takes place unchecked and unchallenged by Jewish authorities abroad, and the more Israeli consulates throughout the U.S. parrot it and defend it, the more justified and less objectionable these bigotries will be.
This has several corrosive implications. First, it means far fewer business opportunities, especially in tech, for Israeli companies. Second, it means that the unspoken but quite obvious sentiment that there seem to be “too many of us” in intelligentsia will strengthen and become spoken (back to the “quota system” in university admissions?) Third, it will unfairly and counterproductively target precisely the demographics that are doing what they can to oppose these travesties (this is why I’ve always thought BDS incredibly foolish when applied to academics and/or journalists. And yes, I’ve been on the receiving end of that nonsense as well.)
There are a few things Jewish leadership in the U.S. should be doing right now:
Speak out against all this. Yes, your congregation can and should have at least as much of an opinion about this as it does about Ukraine and Iran. You have a voice. Some of you have Biden’s ear. Sure, your lefty, scrappy, civil-rightsy temple/shul/congregation can marinate in the same advocacy that any progressive organization in the U.S. does–the usual DEI talking points and capitalizing on domestic controversies. Your duty is to expand your congregation’s parochial concerns and figure out how to talk to and about Israel.
Put your money where your mouth is. If you are funding think tanks like Kohelet, stop it immediately. Even Kohelet’s nauseating captains are horrified by the monster they helped create. Instead, put your money, openly and explicitly, in the service of the protest organizations. My friends are being brutalized by cops and fascist goons to cultivate a safe, democratic haven for you and yours. Help them.
Israel is not a fun summer camp for your kids. Stop sending them to Birthright which, at best, sickens them about the settler and antimiscegenation propaganda they are subjected to, and at worst, converts them to be Netanyahu supporters.
Dissent, even abroad, is patriotic. Join a local protest. I’ve seen people express precious qualms about how they don’t have a “right” or a “say” in Israel. And yet, when horrors happen elsewhere in the world you speak up and donate. What I keep hearing from my friends in Israel is how heartened they are when they see pictures from protests around the world.
Following the tragic passing of my father, I spent a lot of time thinking about mourning rituals, and particularly about the invaluable work of Menuha Nekhona (“A Righteous Rest”), the all-volunteer organization that runs the secular-civil cemetery in my parents’ town. I was so impressed with them that I started drafting a book proposal about secular burials in Israel, but a few days later found out that someone has already written a book about alternatives to religiously sanctioned deaths: Zohar Gazit’s A Struggle to the Death (Tel Aviv: Resling, 2016) (Hebrew.) The original title, “Osim et HaMavet” (“making death”) is a double entendre: it’s a figure of speech meaning “haranguing someone” and also, in this context, implies the creative remaking of a hegemonic ritual in a way that fits the needs and concerns of deeply underserved populations.
Gazit’s book, which is based on his doctoral dissertation, examines three alternative death initiatives: in addition to Menuha Nekhona, he looks at Path to Life, an organization devoted to the healing and welfare of family survivors of suicide and to the destigmatizing of these deaths, and at Lilach, an organization promoting death with dignity (passive euthanasia) for terminally ill patients. Gazit’s theoretical framework heavily relies on Bordieu’s “field” concept (what sociological work doesn’t?) and shows the complicated relationship that each of these organizations has with the death “field.” All three of these organizations struggle against the hegemonic death rituals and perceptions in Israeli society: the religious concept of suicide (and any other actively chosen form of death, including some forms of euthanasia) as defying halakhic rules; the aggressive and greedy religious monopoly on burials in Israel, run by Orthodox Hevre Kadisha organizations who perform alienated, antiquated rituals, discriminate in plot allocations, and humiliate the dead and their loved ones; and the Israeli hierarchy of death, which glorifies military casualties and features a constant contest among other groups about their relative prestige, access to services, and differential stigma.
Gazit’s analysis is incisive and sensitive. His ethnography (participation in meetings and rituals, plenty of interviews, clever media analysis) shows internal conflicts and contradictions within the organizations he examines. What they want to highlight, and who they want to associate themselves with, is a delicate and carefully strategic dance of courting legitimacy and support. For example, Path to Life activists fiercely oppose efforts to downgrade the status of soldiers who committed suicide beneath that of supposedly legitimate military casualties; at the same time, they assiduously avoid even the semblance of supporting suicide as a legitimate option. They also contest professional opinions that discourage open talk of suicide as potential encouragement, arguing that open conversation can invite attention, help, and saving lives. Similarly, Lilach activists try to disengage from suicide organizations and stick to passive euthanasia, so as not to invite displeasure. And Menuha Nekhona have faced a complicated relationship with the very few people in Israel who sought cremation, an option associated with deeply negative stigma in Israel due to the legacy of the holocaust; at the same time, they’ve had to partner sometimes with Hevre Kadisha for burial services, among other surprising disclosures in procuring coffins: traditional Jewish burials are in shrouds, with no coffin, but bodies flown in from abroad arrive in coffins and Hevre Kadisha sell these to Menuha Nekhona.
Gazit’s book is full of fascinating information for anyone interested in social movements, sociology of religion, political theory, and constitutional law. I learned a lot. There is plenty I’m interested in that I didn’t find in the book (such as the negotiations of individual burial styles, headstones, and maintenance), but there’s only so much one can include in one work. My only quibble–a minor one, and by no means limited to Gazit’s book–is that he repeatedly relies on the terms “good death” and “bad death” for, respectively, the hegemonically sanctioned death and the alternatives. I know these are both well-established sociological terms of art and Gazit is correctly using them. But terms of art in sociological theory can sometimes sound jargony and, in this case, given that these organizations fight deep injustices, come off a bit precious and more than a bit jarring in their aesthetic and moral removal. I would have preferred “hegemonic” and “alternative.”
This minor issue aside, Gazit’s book is an important and worthy addition to other texts investigating national-religious hegemonies in Israel and those who try to contest them, such as Daphne Barak-Erez’s Outlawed Pigs and Michal Kravel-Tovi’s When the State Winks. I’ll end with my favorite passage (in my own translation from Hebrew):
All three organizations have emblazoned death on their flag, but they carry a message of life. Better, safer, richer, more mindful life, achieved through dealing with the “bad death.” From an event that happens to us, death is shaped as an event that we are active in. Passive social isolation, leaving decisionmaking to the medical establishment and later to Hevre Kadisha with no input from the individual and their loved ones, are replaced by decisions, choices, and action. Addressing “bad death” is framed as an empowering resource in the activists’ lives–an expression of courage, principled stance, and a struggle against injustice.
In May 2016, Mirwat Abu Jaleel, an Arab-Israeli woman, was horrifically stabbed to death eleven times in her bedroom in her home in Shefar’am. Her oldest son, Nasrat, told the police that he woke up hearing a struggle. As he exited his room, he saw his neighbor, Ashraf Tahimer, running toward him in the hallway, holding a knife in one hand and making a fist in the other. Ashraf hit Nasrat in the mouth, breaking one of his teeth, and fled the home through a window downstairs. Mirwat’s younger children told the police that they saw Ashraf enter the home through the same downstairs window, take a knife from a kitchen drawer, remove his shoes, and ascend the stairs to Mirwat’s bedroom. The police did not find Ashraf at home–he had fled–but the next day he surrendered. At his interrogation, Ashraf denied having had anything to do with the murder. Nevertheless, when the police searched the crime scene, they found Ashraf’s shoes in the kitchen. The court did not believe Ashraf but found the prosecution witnesses, Nasrat and the other kids, credible, and convicted him of murder.
Today I attended the oral argument in Ashraf’s appeal at the Israel Supreme Court. My long-time friend and colleague Hagit Lernau, a longtime senior veteran of the National Public Defender’s office and now a criminology professor at Haifa University, argued the case for the defense (she’s pictured above in her robe, getting ready for court) and so I tagged along to help her prepare and see the argument. The hearing proved to be a disquieting inquiry into questions of truth, credibility, biases, and heuristics. It’s as gripping and horrifying as a classic detective novel, and offers important lessons to anyone investigating and adjudicating crime.
Ashraf does not make for a particularly cuddly appellant. He has a long history of petty crime and heavy drug use. He is also quite impulsive and found it difficult to sit quietly during the hearing. He was also disliked in the neighborhood because of his lifestyle. But, as he repeatedly told the police and the factfinding court, he had no reason to kill Mirwat. They had a good neighborly relationship and, while she did not approve of his lifestyle, she was always kind and welcoming to his son. Indeed, he had serious disincentives: killing Mirwat would create a deadly conflict between his family and the Abu Jaleels, putting his children in danger of retaliation (indeed, following Ashraf’s arrest the Tahimer home was burned to the ground, and the entire family had to flee the town.)
By contrast, Mirwat’s family had ample motive to murder her. Mirwat was divorced and her ex-husband, Ibrahim, found a younger woman. Mirwat’s independent, open life was a threat to the patriarchal family structure. Arab Israeli women are overrepresented as murder victims, and divorcées are at a particular risk. Most murders of Arab women are never solved; out of those solved, most are perpetrated by a partner or other family member and related either to family honor or to retaliation for some offense committed by a man. In 36% of cases, the murder is witnessed by at least one child or another family member.
Given these statistics, which are well known to the police as part of the depressing picture of violent crime among Arabi Israelis, you’d think the investigative team would at least question the Abu Jaleels’ version. But they accepted wholesale the testimony of Mirwat’s family members, all of whom denied having had anything to do with her murder. They claimed that Mirwat and Ibrahim were on the path to reconciliation, and had met with a third party (some said a sheikh; some said a lawyer; some said three weeks prior; some said three days prior) to sort out their differences. The police never sought to confirm or refute this story. Ibrahim himself, who would’ve normally been the prime suspect, was conveniently out of the country when the murder took place (I’m told this is not an uncommon pattern in family honor killings–there’s already somewhat of a playbook for these crimes.) Nasrat, Mirwat’s son, even said that he could provide a motive for Ashraf to commit the murder: a few days before murder, Nasrat overheard Ashraf promise his son an Xbox if he improved his grades. There was an Xbox in the Abu Jaleel’s home–in Mirwat’s bedroom, in fact–and Nasrat testified that after he found his mother’s lifeless body in a pool of blood, he located the Xbox disconnected on the floor, put it back in place and reconnected the wires. This version of events was utterly refuted by forensics, who found that the Xbox had not been disconnected, reconnected, or moved at all recently. Even this considerable contradiction–suggesting a fabricated motive for the suspect–did not lead the police to doubt the Abu Jaleels or look elsewhere for suspects. They were focused on Ashraf as the one and only suspect.
The children testified that Ashraf had climbed up to their home through one of the windows. But the crime scene photos clearly show that the electric shutters are lowered all the way in all windows, and the children said that the family kept them shut (after being confronted with this problem, one of the children pointed out that the one shutter would sometimes be open to let in fresh air.) The act of climbing up the wall requires some dexterity. During the investigation, a police officer secured in a harness attempted to climb to the window and into the house, and while he was not initially successful, he did eventually manage to get in. However, on his way out he broke a fragile piece of the window, raising questions as to whether it would be possible for Ashraf to enter/exit and leave the window intact. But on top of all this, it turns out that Ashraf suffers from a shoulder prone to dislocation. An orthopedic expert testified at trial; his uncontested expert testimony was that Ashraf’s shoulder would have likely been dislocated by the effort (he gave that a 90% chance of happening) and, in fact, was dislocated later at his jail cell by the mere act of raising it.
At this point, you might wonder whether the entire debacle is unnecessary: surely, in the course of climbing into the house, walking to the kitchen, pulling out a drawer to get a knife, walking to the bedroom, and having a violent struggle with the victim involving copious blood, the perpetrator must have left forensic residue behind! The answer is: none was found. The forensic team lifted 27 fingerprints from the home, emphasizing the course that Ashraf allegedly took. 26 did not match his and one remained unidentified. No DNA of his was uncovered–no skin, no blood–and no blood smears were visible on the way from the victim’s body to the window. All prosecution witnesses attested that Ashraf was not wearing gloves at any point during the event. At the factfinding court, he prosecution argued (successfully, apparently) that Ashraf must have smeared away his own fingerprints, as well as the blood, when he climbed back out of the window, or that his criminal experience prompted him to clean up his own fingerprints as he went along. Such a course of action, for someone under drug influence and with a weak shoulder, defies credibility: did he hold himself up with the bad shoulder and wet-wipe his own fingerprints off as he went along?
We all know the legal rule that the absence of evidence is not evidence of absence. But scientifically speaking, we can sometimes learn from absence of evidence–particularly when the probability of finding the evidence would have been high. Prof. Lernau, who on top of being a terrific litigator has a curious scientific mind, wondered: how likely is it for someone to engage so thoroughly, in such a tactile manner, with a crime scene, and not leave a trace? There is apparently considerable variation among people in propensity for leaving fingerprints (it has to do with grease and moisture in the skin, etc.) and surfaces vary in how well they absorb and retain fingerprints. With the assistance of Dr. Naomi Kaplan-Damari, a forensic criminologist at Hebrew University, the defense team ran a little experiment. They instructed fifty staff members to touch similar surfaces to the ones at the crime scene. Even for the people less prone to leaving fingerprints, the odds of not leaving a trace were extremely small.
There was, however, one crucial forensic finding: a human tooth located at the top of the bed, where Mirwat had lain her head before she was attacked. The tooth did not belong to Ashraf; it belonged to Nasrat, Mirwat’s 17-year-old son. As you’ll recall, Nasrat told the police that Ashraf punched him in the hallway when fleeing the scene and dislodged the tooth. If so, how did the tooth make it to the bed? Nasrat claimed that he had reconnected the Xbox in his mother’s bedroom, but that proved false. He did, according to his own testimony, attempt to revive his mother alongside the other family members, but the body was at the entrance to the bedroom, about 2.5 meters (8 feet) from the bed. The tooth would have had to migrate from the hallway to the bed on its own, or it would have had to be dislodged during the resuscitation attempt (but not on the bed). Or, which would be a more plausible explanation, it would have broken off in the first place not as a consequence of a hallway fight, but during a struggle on the bed with the victim.
But let’s assume, again, that Ashraf escaped from the house the same way he got in–through the window, with no shoes on, and miraculously without smearing any of the copious blood from the crime scene or leaving any fingerprints or footprints on his way out. How did he get home? There are two paths leading from the Abu Jaleel home to the Tahimer home: one is short and leads to the front door, and the other takes a roundabout way and ends in the rear steps of the Tahimer house. The claim is that Ashraf snuck out that way because, as it happens, a nearby home has a camera mounted on the roof that continuously films that allley. For many hours before and after the supposed commission of the crime, only one figure is visible on camera. It is the blurred image of a man holding a knife. The man cannot be identified, and the police assumed it was Ashraf making his escape. This fit testimony from a neighbor, Omri Nadaf, who testified that he saw Ashraf heading to the alley.
Was it Ashraf? Apparently not–according to the prosecution’s own witnesses. Nasrat’s uncle, Wahel, was with his parents, locked in, during the murder. According to Wahel’s testimony, Nasrat, who discovered the murder, ran over and screamed that Ashraf had murdered his mom, and Wahel immediately grabbed a knife, ran out of the front door, and made it to the Tahimer home using the back alley. On cross-examination, Wahel agreed with the defense that he walked that path during the relevant time. As mentioned above, there is only one figure who walked there with a knife. It therefore must have been Wahel. But this would mean that the neighbor’s testimony about seeing Ashraf was wrong (mistaken or deceitful.) If the man in the alley was Wahel, this would also explain the inconceivable timeline by which Ashraf would’ve left the home, managed to get out of the window, make it to the alley, and somehow clean himself enough to appear nondescript on camera within two minutes.
It’s worth reminding U.S. readers that Israel has no jury system. Verdicts are given by professional judges and, in serious offenses, by a panel of three judges. The panel that convicted Ashraf wrote an extensive decision, in which they flat-out rejected the forensic and objective crime scene data and relied primarily on their credibility observations: namely, they believed the family and disbelieved Ashraf, and that was that. As we all know, appellate courts cannot substitute their own impressions of credibility for those of the factfinding forum, which is what the Supreme Court judges reminded Hagit at the hearing. A recent high-profile Israeli case, however, highlights the fact that credibility findings cannot stand when they contradict objective facts. The judges kept asking the same question again and again: how can the appellate court overcome the fact that four witnesses–including children–were all found credible? Hagit kept replying: then what do we do about the impossibility of climbing the window, the lack of forensic evidence, the location of Nasrat’s tooth, and Ashraf’s invisible escape back home?
The hearing highlighted some of the inherent tensions in evidence assessment, which apply to professional judges as well as to juries and laypeople. The first one had to do with the appropriate weight, if any, to allocate to the absence of evidence. The prosecution dismissed Dr. Kaplan’s probabilistic demonstration as “amateur fingerprint science.” This was a mischaracterization: it was an exercise in statistical probability. Of course, it is not a cardinal rule that any case lacking forensics must end in an acquittal; however, in situations where the expectation of forensics is extremely high, negative inferences from their absence are not only possible but logical. It shouldn’t take a huge taxonomical effort for an appellate court to separate their deference to credibility findings from their completely legitimate authority to deduce
While the judges listened attentively to the defense’s oral argument, some of them seemed extremely resistant to the idea of reversing the verdict, and it was obvious that the source of the resistance was the credibility issue. Two of the judges, at different times, said that they needed something more–something positive–to overcome the lower court’s positive impression of the witnesses. The barrier of overcoming the credibility findings sometimes threatened materially exculpatory evidence: at least one of the judges was willing to suspend disbelief about Nasrat’s tooth’s supposed path from the hallway to the bed because the alternative was just too hard to consider in light of the credibility issue.
This all boils down to a central defense strategy concern, which I discuss extensively with my criminal procedure students every year. When, as in this case, the defense argues that the crime was committed by a different perpetrator, the jury is confronted not with the basic challenge of criminal burden of proof–assessing the probability of one story by its own strengths and witnesses–but with a comparison between two different stories. Jury calibration of burden-of-proof is notoriously tentative as it is, and the natural and understandable tendency of a layperson confronted with two different versions of the same event is to compare them to each other and pick the more likely one–even if the comparative likelihoods are 60-40 and the likelihood of the prosecution’s story falls far short of the normal standard of conviction (90-10? 95-5? depends on who you ask.) The hearing made it plainly obvious that this human tendency to compare stories and disengage from the legally required calibration could not be easily overcome even by erudite, experienced professional judges. “But how do you expect us to buy,” they kept asking, “that an entire family conspired to frame Ashraf? Including four children, some of them little? And over the course of such a lengthy period of time? When in this version the victim’s own son is supposedly the killer, or one of the killers?”
The legally correct answer to this question is, of course, that the court does not have to “buy” this alternative story with certainty, nor does it have to find it more probable than the alternative (a man who cannot climb windows climbs and enters an apartment through a closed window, commits a heinous crime, flees an extremely tactile scene leaving not a shred of forensic residue behind him, and somehow ends up at home avoiding detection by camera on the only path he could’ve taken.) All the court has to agree to is that there is a five-percent, or ten-percent, chance that events could have unfolded according to the alternative story to acquit. That’s how reasonable doubt is supposed to work.
Thing is, the court’s resistance to the alternative story is understandable. It’s the stumbling block I kept hitting when we practiced oral argument the night before the hearing. To believe even a shred of the alternative story, one has to ascribe the Abu Jaleel family a level of sophistication befitting the villains in a highly contrived Agatha Christie novel. The family would’ve had to decide ahead of time not only on the honor killing, but also on the alibi for Ibrahim, the father (who would have to be out of the country). They would have to expect 17-year-old Nasrat to be a perpetrator, or at least a seriously involved accomplice, in the murder of his own mother. They would have to decide to frame Ashraf ahead of time. Wahel, who gave Ashraf a large quantity of drugs the day before (he testified about it) would have done so intentionally, so as to dull Ashraf’s senses and make him a convenient target. The family members would have to rehearse the young children extensively in the Ashraf story. After the chaos and destructive energy involved in the murder, as they supposedly ran over to the Tahimer home to take revenge, someone (Nasrat? Wahel? Someone else?) would need to have the presence of mind to take Ashraf’s shoes and place them in the kitchen. Nasrat would have to change his version of his encounter with Ashraf to fit the loss of his tooth. The neighbor, Omri Nadaf, would have to be contacted to provide a fictitious account of Ashraf’s escape. Everyone, including the kids, would have to stick to their version of events over the course of years.
This is a high cognitive hurdle, but two important factors can help overcome it. The first is what Holmes says to Watson in Conan Doyle’s The Sign of Four: “How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?” The family conspiracy, while improbable, is possible; Ashraf as a perpetrator is impossible. The only possible conclusion is that the improbable-but-not-impossible event is what actually took place.
The second factor makes the improbable less improbable: there are well-known sociological realities about the modus operandi of family honor killings. Police officers, attorneys, and judges who investigate and adjudicate these cases are fairly familiar with these cases. Unfortunately, honor killings of Arab-Israeli women are extremely common. In 70% of the cases, family members are the killers; the remaining 30% usually involve some inter-family conflict, in which the woman’s murder is an act of revenge upon a transgression by the husband. In 36% of the cases, at least one child, and often other family members, witness the crime. There are known cases, including the one I reviewed in this article, in which adolescents and teenagers (more often sons, but sometimes daughters) kill their own mothers, and sometimes their younger siblings, by family command, fearful for their own lives if they refuse. In highly patriarchal families, a command from a father or uncle to tell a fictitious story is law for the kids. It is easy to manipulate young children into lying about an event, especially if they (hopefully) did not witness it in person. This was a highly patriarchal family, involving traditional polygamy patterns (Mirwat divorced Ibrahim after he added a younger woman to the family.)
When a judge says, as in this case, “I can’t believe that children could be complicit in this kind of murder-and-framing-conspiracy,” he or she are most likely thinking about the improbability of something so horrifying happening in their own family. Indeed, educated judges from affluent, successful families–most of the time Jewish-Israeli families–would find this horrid scenario very far removed from their personal reality and their surrounding social milieu. It’s important to remember that not every Supreme Court judge is appointed after a long judicial career in lower courts. Some of them are former academics or commercial litigators, who would not have encountered the catastrophe of misogynistic, patriarchal violent crime in Arab communities anywhere in their social or professional circles. And yet, entire cities and towns live in terror of these crimes, to the point that leaders in the Palestinian community feel helpless and call for the intervention of the very police force that oppresses them. My family, who lives in the north of the country and has many personal and professional connections with Arab Israeli citizens (my dad had scores of Palestinian colleagues, employees, and students from local towns and villages; as a judge, my mom interacted for decades with scores of legal professionals, defendants, victims, and witnesses from Palestinian communities) is intimately familiar with these realities, including lovely, law-abiding people who are desperately looking to move because they can’t let their kids out the door unsupervised. What happens in some of these towns mirrors the worst inner-city environments in decrepit skid-row places in the U.S., and honor-related fights between extended clans (“hamulas”) and within families echo the worst of U.S. gang violence.
How Arab-Israeli violent crime reached these virulent proportions of pathology and sophistication is a matter of debate and speculation. Some believe that successful interrogations and prosecutions that crippled the Jewish-Israeli organized crime underworld created a void, into which Arab-Israeli criminal enterprises stepped in. Others think that the lack of opportunities for Arab-Israeli adolescents, fueled by deep inequalities, racism, and animosity, create a natural pool of potential “soldiers” for these enterprises. Yet others speak of patriarchal cultural norms that are difficult to root out. People who are steeped in these crimes already know that they are committed with frequency, and that there is considerable community knowledge and expertise in committing them and escaping scot-free (only 24% of homicides where the victim is an Arab-Israeli woman are ever solved, compared with 84% of crimes in which the victim is a Jewish-Israeli woman.) This reality can help demystify the Agatha-Christie-like quality of the defense’s alternative story. But to accept it would mean to live in the real, unfortunate world, not in the idealized world in which some judges might live, in which women are free to divorce abusive husbands, live free and open lives, without fearing violent consequences from their own partners and children.
I have a final observation about what I saw yesterday. When Ashraf was brought into the courtroom, flanked by guards, several nasty bruises were clearly visible on his face. He grimaced in pain and found it hard to sit down, asking permission to stand for part of the hearing. Had I been the judge in this case, the first thing I would do would be to ask him, “how are you?” and “what happened to you?”. To my astonishment, not a single member of the judicial panel bothered to figure out the provenance of the bruises or evinced compassion toward Ashraf in any way. I don’t think this is entirely unrelated to the legal aspect of what happened in this case.
It looks like the event I hardly imagined could ever happen might happen: Gov. Newsom announced that he would not appeal the Court of Appeal’s decision to reinstate Leslie Van Houten’s parole. The Associated Press reported Newsom’s obligatory statement, as well as some valuable words from Van Houten’s attorney:
In a brief statement, the governor’s office said it was unlikely that the state’s high court would consider an appeal of a lower court ruling that Van Houten should be released.
Gov. Gavin Newsom is disappointed, the statement said.
“More than 50 years after the Manson cult committed these brutal killings, the victims’ families still feel the impact,” the statement said.
. . .
“She’s thrilled and she’s overwhelmed,” [her attorney Nancy] Tetreault said.
“She’s just grateful that people are recognizing that she’s not the same person that she was when she committed the murders,” she said.
After she’s released, Van Houten will spend about a year in a halfway house, learning basic life skills such as how to go to the grocery and get a debit card, Tetreault said.
“She’s been in prison for 53 years. … She just needs to learn how to use an ATM machine, let alone a cell phone, let alone a computer,” her attorney said.
In the last chapter of Yesterday’s Monsters I looked at factors that might or might not be conducive to the release of any of the people I featured in the book. What paved the way to Van Houten’s release was the reemergence of adolescence as a relevant factor for parole; she had been living an exemplary life of self-reflection and rehabilitation for many years and was nonetheless repeatedly denied based on “lack of insight”, which, as I and others have discussed, is nonfalsifiable. The Commissioners had always known that Van Houten was 19 when she participated in the LaBianca murders, but a series of Supreme Court decisions gave them explicit permission to consider her age, and that’s what tipped the scales.
I now see these cases through the broader prism that Chad Goerzen and I develop in FESTER (coming to a store near you in January 2024), which highlights the travesty of turning our prisons into geriatric facilities. Beyond the obvious issue of medical risk, there is the question of what freedom looks like to a septuagenarian leaving prison after 53 years. Even without the added difficulty of immense stigma and animosity, Van Houten, who is a bright, thoughtful, and talented person, and who has academic degrees, will find it very hard to find and hold a job in this market. She has had to endure a lot behind bars, and her reentry is unlikely to be very easy. I wish her all the best. Our paths did not cross–she did not wish to be interviewed for Yesterdays’ Monsters–but I very much hope they will some day.
Filmmaker Omer Yefman and I went to school together and, after wanting to see his films for years, yesterday I finally had an opportunity to attend a screening of Holding It In (2020), his film with his partner Chen Rotem, an honest, no-barred-holds window into their surrogacy journey.
I’ve been interested in Omer’s work since hearing about All Happy Mornings (2012), in which he and Chen opened up about Omer’s bisexuality and their complicated journey into nonmonogamy (something I had written about from a legalandsociologicalperspective.) I remembered him vividly from our school days as an authentic, real person, who met the world around him with humility and curiosity, and it was a pleasant discovery (though not at all a surprise) that Chen is also a fantastic and openminded person. I especially appreciated the film’s entry into a fraught conversation in Israel about surrogacy. Israel’s limited adoption market, a product of its decided natalism, means that people aggressively pursue IVF treatments with enormous social backing, and that queer couples and people for whom IVF is not an option pursue surrogacy. This has produced a ferocious debate in the queer community about the power differential and exploitative potential of surrogacy, as well as legislation that excluded same-sex couples from surrogacy in Israel (surrogacy is still an option for opposite-sex couples and single women.) Some surrogates have spoken up against the assumption that they are exploited or powerless in the relationship, while other commentators have dismissed their perspective as privileged and not representative of the overall population of surrogates.
Issues of money and power are not at the center of Chen and Omer’s journey–they are frank and vulnerable about conversations of partnership, giving, children, family time, and camaraderie before and during Chen’s pregnancy–but they are not far from the surface. In one scene, Chen and Omer’s two young kids are asleep in the back seat of the car while the parents discuss Omer’s discomfort using “surrogacy money” to go on a family vacation abroad. Earlier in the film, discussing their decision with friends, Chen is adamant that she would insist on paying for surrogacy, and there’s an agreement that payment is fair and important given the sacrifice and risk. “It’s our money,” Chen says. “I’m still uncomfortable,” Omer replies.
Surrogacy and adoption are distinguishable in important ways: by contrast to surrogacy, which is a service from the get-go (in one touching scene, Chen explains to her young kids that the baby is “a guest in our family” who “will return to his parents” after he is born), the decision to place a child for adoption can only be made after the child is born, no matter what theoretical agreements birthparents and adoptive parents reach before the birth, and therefore there is no compensation, as such, beforehand, which could be constituted as bribe. But to say this is to some extent hypocritical. I’ve written before about the fact that, like surrogacy, adoption is a situation in which a baby usually passes from poorer hands to wealthier hands, while money changes hands in the opposite direction. The meticulous limitations on what is, and is not, remunerable, obscure this important point–an effort to quantify the unquantifiable. Regardless of the legal or ethical taxonomy of payments (support? compensation?) the quantification of such a fundamental and immense human process is at the heart of the discomfort.
Because of this deep truth, people on both sides of either adoption or surrogacy relationships would do well to remember that there are some things that this money should not buy. One of the most stunning moments in the film, for me, was when Chen returned from a medical checkup and told Omer that the prospective parents discussed a C-section with the doctor–without having discussed it with her first. Here’s the scene:
I felt rage bubbling in me while watching this scene. I’ve been in a similar situation from the opposite side, I thought. Someone else gave birth to my child. And it would never occur to me to make any demands, requests, suggestions anything at all about the birth. I feel very strongly that the only person who should be entitled to make decisions about a birth (what form it would take and who would be in the room, to name just two factors) is the person giving birth. As the scene progressed, Omer’s resentment toward the parents was palpable, while Chen explained that she did not want him to be angry on her behalf and that she was listening and trying to see things from their perspective (in the conversation we had after the movie, some details emerged that somewhat ameliorated, though did by no means eliminate, my deep concerns about the parents’ stance.) I had to actively remind myself that it was also Chen’s choice whether to feel resentful or not, and that adoption was fundamentally different from surrogacy. A birthmom gives birth to her own child and therefore makes her own decisions. A surrogate gives birth to someone else’s child. But a birth is a birth, I thought. What can be more personal than giving birth, regardless of the genetics of the child? The greatness of the film is that it is willing to ask these difficult questions without giving pat answers that rely on definitions and self righteousness.
And this is at the heart of my deep appreciation for the film: more than a film about an unusual, deeply stirring journey, it was a film about two incredibly brave and honest people, who are willing to confront not only complicated social and psychological questions, but their own demons, and to do so authentically in front of a camera. Their struggles and epiphanies are never self-serving, and never take the form of the all-too-common “lived experience” narrative one encounters all around us, where people marinate in their own goodness publicly. We’re flawed, just like everyone else, they seemed to say, and we want to share our process with you. In our conversation after the show, the filmmakers mentioned that, while documenting their experience, they weren’t thinking “people will be seeing this later”, but I think that there is a profound act of service in making this film that parallels the profound service of surrogacy. By opening a window into their personal life, far from generalizing their experience or making ethical proclamations, Chen and Omer are offering me and you an opportunity to engage with our own sense of ethics and question even the assumptions we clutch most tightly. What more can one possibly want from a film?
It is the nature of character assassination scandals, and a consequence of their frequency, that after a while they are forgotten by all except the people whose lives were destroyed by them. Such was the fate of Michelle Dauber’s cruel and idiotic crusade against Judge Aaron Persky in the aftermath of the Brock Turner scandal, which swept a lot of ill-informed progressive punitives with pitchforks and led to the destruction of his judicial career (and later, the destruction of his livelihood as a tennis coach.)
For all the shrill shrieking about “privilege”, pretty much every criminal justice academic I respect in the Bay Area warned at the time that recalling judges for lenient sentencing (especially, as in this case, following the probation recommendation) would make punishment harsher and much worse for everyone–especially for people who looked and lived nothing like Brock Turner. I was one of the first signatories and vividly remember shouting this from the rooftops, as well as seeing it as part of an appalling pattern of the left eating its own with no rhyme or reason.
As everyone worth their salt predicted, the recall did have an effect on criminal punishment in Santa Clara county: it made it harsher. As my colleagues Sanford Gordon and Sidak Yntiso found:
Using disposition data from six California counties and arrest records for a subset of defendants, we find a large, discontinuous increase in sentencing severity associated with the recall campaign’s announcement. Additional tests suggest that the observed shift may be attributed to changes in judicial preferences over sentencing and not strategic adjustment by prosecutors. We also demonstrate that the heterogeneous effects of the announcement did not mitigate preexisting racial disparities. Our findings are the first to document the incentive effects of recall and suggest that targeted political campaigns may have far-reaching, unintended consequences.
In other words: the fearless, plucky lefties who led this hysterical campaign can take pride in the fact that their relentless persecution of Persky empowered and enhanced carceral repression across the board, not necessarily making a dent in prevention/accountability for sex crimes, and harming precisely the people without “privilege” that they presumably sought to protect with this destructive campaign.
Why am I revisiting this? For two reasons. First, because I don’t want us to forget that these sorts of actions have consequences. I know that many on the left are already sickened by years of ugly, disastrous infighting. As Freddie DeBoer recently wrote:
I certainly would not say that the age of canceling is over. There will be public scandals to come; people will suffer major career and social consequences because of public anger. Sometimes they’ll deserve it. And maybe this is just a lull and the same old songs will get sung again and again.
But at this stage I find it hard to deny that the sense of palpable fear so many operated under, the feeling that the prosecutors held all the cards, appears to be in terminal decline. People just aren’t afraid in the same way anymore. The mob doesn’t have the momentum. The big bad wolf has lost his teeth. I suspect this is for a few key reasons – the fact that all of that endless raging did precisely nothing to make the world more just, for one. The growing understanding that the human species is flawed by nature and that no one can match those standards, for another. But mostly, I think it’s the dynamic I’ve been predicting for a long time: you can only bang the gong so many times. Everybody’s receptors all got blown out. Outrage is a finite resource. People can’t maintain permanent offense forever. Most of us can’t, anyway. You can only tense a muscle for so long.
Thing is, while we are tiring of the phenomenon, the people whose lives and reputations were laid to waste are going to have to live with the consequences of these witch hunts for a long time. Judge Persky, I think of you and am so sorry for the horror that you went through.
The second reason is that an excellent, short documentary about the poisonous effect of the recall campaign is out, and until September you can watch The Recall: Reframed for free:
A couple of months ago, a group of friends and I put on an explainer of Israel’s judicial overhaul proposal at Manny’s. My wonderful colleague Hadar Dancig-Rosenberg talked about the extent to which the struggle over the country’s government structure is cultural no less than it is legal-political. As she explains it, huge swaths of the Israeli secular public are waking up to the extent to which their hard work and sacrifice (military service, taxes) are funding Ultra-Orthodox communities and special interests. I was reminded of this when we held my father’s funeral at the secular cemetery Menuha Nehona (“a proper resting place”), which is beautifully, efficiently, and compassionately run by a team of superb volunteers. The standard Jewish funeral in Israel is run by Hevre Kadisha, the Ultra-Orthodox funerary service, whose extortionist practices, dehumanizing burial procedures, and insulting bigotry have become legendary. Instead, we got to bury my beloved father with speeches from loved ones, live and recorded music he loved, moving songs, and a kaddish from his own daughter, as well as the traditional kaddish from his brother. It was such mercy that we were able to divest from the stronghold that the Ultra-Orthodox administration holds over so many aspects of any Israeli’s circle of life, and it reminded me how alienating and surreal my divorce ritual was (I’ve written about it here). As I wrote recently, the absurdities of dealing with the Rabbinate and its many tentacles were swept under the rug through a delicate dance of hypocrisies and performances. And to hear Hadar discuss it, a big part of why there’s such a huge uprising against this government has to do with how fed up people are with all this.
It’s hard to explain to people who don’t live her how insular and removed the Ultra-Orthodox experience is from everyday, mainstream secular life, but today presented an interesting example. Strauss company makes a crunchy snack called Doritos (basically, tortilla chips with a spicy kick), and a year ago they released an ad for their snack for family day. As you’ll see, the ad celebrates lots of different families, including those based on same-sex marriages:
The ad was deliberately released only digitally, not on TV, to reduce controversies with religious audiences. Nevertheless, it provoked ire among the Ultra Orthodox, to the point that the Ultra-Orthodox rcourt called to boycott Doritos.
My friend Andrea Lobel (theologian, Renewal Rabbi, and librarian extraordinaire) drew my attention to a new ad Doritos has produced, which has been shared on Twitter:
The ad is quite humorous, and based on the Eastern European folklore of the Jewish Shtetl (my dad wrote a sweet and endearing short story book about those little Jewish towns.) It’s a bit like a Jewish Monty Python. But comparing it to the secular ad above is striking. It’s obvious Doritos wanted to recapture the Ultra-Orthodox market share, and they went to great lengths to flatter and appease their target audience. The religious ad is entirely in Yiddish, with Hebrew subtitles. There’s nary a woman in sight. Most scenes take place in synagogues and Batei Midrash (Jewish scripture-learning institutions). In the movie theater scene, all the people seated at the theater are men, and all in religious garb. The ad essentially recreates the Israeli street as an entirely Ultra-Orthodox street, purged of any secular markers or identifiers and purged even of religious women (in case this seems imaginary, in some neighborhoods in Israel girls are actually admonished to stay away from the streets and play hidden from view, lest they encounter men on their way from the synagogue.)
My colleague Gadi Barzilai, whose multicultural tolerance for communities and their way of life was legendary, would probably have more patience for this than I do, but it does come not only at the expense of the secular public and Ultra Orthodox women, but the Ultra Orthodox men themselves. The limited education and life experience this lifestyle provides its adherence is producing an impoverished, ignorant community that is unable to adapt effectively and productively to life in the 21st century. It’s worth stopping, looking around, and thinking how far the chasm has come, and considering how it is informing the ever-widening civil rift in Israel.
A few days ago I drew your attention to the upcoming election to the Israel Bar and, particularly, to the thoroughly corrupt candidate who had sex with women in exchange for guaranteeing their appointment to the judiciary. The crippling shame of having someone like that at the top of the administration’s licensing profession in itself should be enough for lawyers of all political stripes to vote him out. But yesterday I had an opportunity to think about the wider political ramifications of this election, when former politician Ophir Pines-Paz spoke at the democracy protest in Kiriat Tivon.
My parents were both deeply involved in the struggle for democracy and against corruption in Israel, opposing the occupation, religious coercion, social and financial inequalities, and the crimes and excesses of Netanyahu, his family members, and his government. During Netanyahu’s previous government, they protested weekly in front of his house. When this horrendous government took office, my parents faithfully reported to the protests each week. Sometimes, my dad would protest mid-week at an intersection, waving his big flag in hand. Today I felt called to take his place, as his kind, hugging, righteous arm let go of his flag for the last time last week. I took my dad’s flag and went to the protest, alongside a dear friend and thousands of attendees (the above picture does not do justice to the amazing sights and sounds.)
Anyway, as Pines spoke to the protesters and explained the importance of the bar election, I realized that the Israeli system might be opaque to English-reading audiences, and the scandalous possibilities of this election are too complicated, perhaps, for the American press to pick up. So here’s your primer:
Israel does not hold judicial elections, as in U.S. states, nor does it hold purely political hearings by the legislature for its Supreme Court Justices as in the U.S. federal system. All judges in Israel are appointed by the President of Israel following the recommendation of a special committee, whose current structure, by law, is this:
The committee is designed to have an ostensibly professional majority: five lawyer/judge members and four politicians. Also, by custom, one of the elected Knesset Members is from the coalition and one from the opposition.
The proposed governmental “reform” would change the committee’s composition to look as follows:
Under this proposal, the committee would have eleven members, and judicial elections can be decided by a seven-member majority. In other words, if seven coalition members vote for a judge for political reasons, the sole opposition member and three judges cannot block them.
Thanks to dogged, relentless protests nationwide, the proposal has not passed yet. But the struggle to politicize the judiciary to guarantee that it favors the government continues on a variety of fronts. Two days ago, the government attempted to elect two coalition members (as opposed to one coalition member and one opposition member) to the committee. The vote was secret, and despite their efforts to drag things on and on and recount the votes for hours on end (how long does it take to electronically count 120 votes?) the Knesset elected only one member – KM Karin Elharar from the opposition. This means that at least four members of the coalition are secretly disgusted with Netanyahu and his governmental partners, though not brave enough to come out in opposition to their noxious plans.
What these noxious plans amount to is sitting government loyalists, ready to disenfranchise minorities, intensify the horrors of the occupation, and give free rein to the religious authority, in the Supreme Court, and more specifically, to block the appointment of a quiet, professional, independent judge by the name of Itzhak Amit to the Supreme Court. The coalition demonizes Amit and paints him as a post-Zionist demon. But in fact, he is widely respected as an excellent, hardworking, unassuming judge, and his sole sin apparently is that he decides cases based on the legal arguments, rather than by politics.
Can they do it? Let’s do the math:
With Elharar on the committee, and the three Supreme Court Justices presumably in favor of a strong, independent constitutional court, we have four votes for Amit and other independent judges. On the other side we have the two government ministers and the yet-to-be-elected coalition Knesset Member. The two votes up for grabs are those of the lawyers. Do you now understand why the government is so keen to seat Effie Naveh as the Israel Bar Chairperson? According to a recent exposé, Naveh’s campaign donors did so with the understanding that he will, in exchange, finagle a seat at the judicial election committee for them.
Now, Naveh has been consistently denying that he is beholden to the architects of the judicial reform. These vehement protestations are not particularly credible, given the efforts that the government is making to get him elected. But the bottom line is that Naveh’s personal or political opinions do not matter at all. He has been publicly exposed, and criminally convicted, as an unprincipled man, whose massive bribery and fraud operations are conducted to enrich him and his friends and to sexually gratify him. Is this the sort of person this government can do business with, as far as judicial appointments are concerned? You bet.
One of the challenges of the anti-government protests is that the insidious attack against the country’s democratic regime takes place on multiple fronts, including those hidden from sight. I hope this post shows how tinkering with each moving part of the judicial selection process can have vast consequences for democracy, and encourages those of you with an active Israel Bar membership to vote on Tuesday–and those of you with lawyer friends to encourage your buddies to vote Naveh out of office.
Just a few days ago, I did the hardest thing I had ever done: I officiated my father’s funeral. Hundreds of friends, colleagues, and students of my dad came, many of whom remembered me only as a very young child. Many of these people commented, to my mom or to me, what a shock it was for them to see me: I am a dead ringer for my father, especially in my now short haircut that resembles his own haircut when he was in the army. The striking resemblance is hard to ignore. I took a lot of pride in these comments. It is wonderful to resemble my precious dad, who was the best person on Earth, and if I ever live up to be a tenth of the person he was, I’ll be very proud of myself.
Sleepless and weeping, I just read Kwame Anthony Appiah’s column in the New York Times from 2022, in which he applies an ethical lens to two letters written by adopted adults who want to contact their birth families. At the time these people were adopted, it was customary to keep their provenance secret from them, with a possible revelation (or not) when they came of age. Consequently, people who now, thanks to 23andMe and similar platforms have access to their genetic makeup, can now more easily find their birth families, which opens up lots of complicated moral dilemmas.
As regular readers know, I’m an adoptive mother. My wonderful son is the light of my life and the best thing that ever happened to me and my partner, as well as to our parents. I’ve written about our adoption journey and its implications for my worldview here, here, here, and here. The gold standard in current adoptions is open adoption, in which the child and the adoptive family know the birth family and vice versa. Some birth parents choose to be in touch and involved. Some do not. How people handle the immense pain of placing a child for adoption is profoundly individualized and should be respected as such. But at least one’s biological origins are never a shameful secret that needs to be hidden from them, awaiting a big revelation.
This newer adoption regime is not without its complications, and works differently for different families, but currentscience widely considers it significantly superior to closed adoption. The main argument for it is this: people are naturally drawn to their biological provenance. It is deeply important to them. In the first few days we spent with our son as a newborn, during the long, exhausting, and yet precious nights of hourly feedings, I was drawn to reading Charles Dickens novels, and remember being struck by the centrality of the mystery of provenance in so many of them: Bleak House, David Copperfield, Great Expectations, Little Dorrit. Dickens himself had great interest in this issue, as one of the key founders and benefactors of the Foundlings Hospital. He published an article about it in 1853 titled Received, A Blank Child. The psychological distress of not knowing who one is, where one came from–especially in the rigidly stratified Victorian era–permeates Dickens’ writing. At the time, I also encountered many adult adoptees who so deeply resented the secrecy of their own adoption that they came to oppose adoption altogether, alongside many birth mothers who feel that the secrecy and shame surrounding the process created sickening opportunities for pressuring them to place their children for adoption. While anyone is entitled to their opinions, which are naturally shaped by one’s own life experiences, I wonder if the distressing legacy of unscrupulous closed adoptions is unfairly skewing these folks’ view of a much-transformed (and for the better) adoption landscape.
In his sensitive responses to the adult adoptees, I noticed that Appiah, who is characteristically careful with his terminology, does not use the terms “right” or “birthright” to know one’s biological origins. I’m not super versed in the jargon of philosophical rights theory, and the word “right” means different things to different people. But it does strike me that knowing who your birth family was is deeply important to many people and it makes a lot of sense to me that it does. Regular readers know I’m very far from a biology determinist, and even I was surprised by how gratifying I found it to be physically compared to my beloved father. It was deeply meaningful and brought me unexpected comfort in this devastating time. At the same time, It’s clear to me that even though people have a “right” to know their provenance, as they do other aspects of their biology, these discoveries do not necessarily make things better for them. A 2017 study by Lebowitz et al. highlights some significant downsides: today’s technologies, which give people access to a plethora of information about their genetics, make them overestimate the impact of their predisposed genetic properties and thus makes them pessimistic about their physical and mental health–despite what we know about epigenetics and the considerable impact of environment.
All these threads boil down to this: knowing things about your own genetic makeup, including about your birth family, has advantages and drawbacks, and plays out differently for different people. Thing is: good or bad, simple or fraught, freeing or burdensome–knowledge about your DNA is now easily available and secrets are near impossible to keep. Law and policy in a variety of areas–including family law and criminal law, two fields I’m deeply interested in–must be shaped with the understanding that the cat is out of the bag.
I think the idea that our deepest and most unsavory secrets will come to light–and living with the inevitability of discovery–looms large in our collective nightmares. In Clarissa Pinkola Estés book Women Who Run with the Wolves (now experiencing a well-deserved renaissance), she tells the story of a golden-haired woman murdered by a spurned lover and buried near a river. In time, reeds resembling her beautiful tresses grow over her grave and sing the song of her murder and her killer’s name. It’s no coincidence that many cultures feature similar stories. The wonderful Argentinian film noir Los Tallos Amargos is based on the same plot point. The new, democratized access to DNA testing has ushered an age in which these deeply embedded cultural fears are here.
In the adoption field, this means that birthparents and adoptive parents have to be very clearly apprised of the fact that their child will have access to information about their provenance. This is true for closed adoptions, open adoptions, and even kin adoptions to hide all kinds of unsavory family secrets. DNA testing services are here and in wide usage, and so whatever you think you are hiding about a child’s biology–to protect them, to protect yourself, whatever the reason–will come to light. Whatever role you play in the adoption triangle, you have to play it with the understanding that you have no control over whether, or when, the facts will come to light. This can cause a lot of distress and fear, but it is nonetheless true.
In the criminal justice field, it means that much of the concern about invasive DNA testing methods is now moot, whether positive or not, given their increasing availability and sophistication and decreasing costs. I see these concerns raised by privacy advocates and racial justice advocates. Honestly, it seems a bit ridiculous to resent the role that private DNA testing services and familial DNA testing played in unveiling and prosecuting California’s most heinous murderer and rapist, or to begrudge the relief that the current wave of crackingcoldcasesthroughnoveluses of DNA technology brings to families even decades after the crime. In 2013, Charles MacLean called for accelerating another helpful DNA-based tool: producing an artist’s rendering of a perpetrator’s face based on an ancestry analysis of their DNA, which raised concerns about AI-generated over-racialized portrayals of perpetrators. Regardless of where you stand on the range between enthusiasm and concern about these technologies, they are here now and have helped crack at least one horrendous cold case.
This also means that some arguments about rehabilitation-versus-retribution are going to be skewed by our increased knowledge about whether and how people can change. In 2005, the field of juvenile justice was rocked by new insights from neuroimaging and developmental psychology about the malleability of the adolescent brain, leading to many welcome enlightened developments regarding the sentencing of people for crimes they committed at a young age. But what about kids who, from a very young age, present symptoms of what might later be diagnosed as psychopathy? In this piece, Angela Lashbrook looks at a difficult paradox we face now: on one hand, we want to exercise extreme caution before labeling children as psychopaths, opting instead for the still scary, but perhaps less so, diagnosis of oppositional defiant disorder. On the other hand, it now turns out that the earlier the psychopathy diagnosis, the easier it is to do something about it, both clinically and through environmental redirection; adult psychopaths are notoriously resistant to any treatment or remediation. But talking about the advantages and drawbacks of labeling people with a diagnosis we now have the scientific means to determine they actually have is moot in an era of accelerated discovery and decreasing costs.
I would like to see more scholarship and policymaking in these areas leave behind the “pros and cons” discussions about disclosures, and move toward the more important question: how are we to shape our personal lives and public policies knowing that, whether we like it or not, genetic knowledge is widely available? How do we shift the conversation from talking about the virtues of keeping secrets that are impossible to keep toward framing the validity and immutability of these revelations in a scientifically valid way? Rather than trembling in fear of discoveries that will shake up our self perceptions and our families, wouldn’t it be better if we thought about the extent to which these discoveries have the power to shape our lives, and the varying degrees of freedom to shape our futures even as we know more about our pasts and presents?
In an effort to distract myself from the overwhelming grief over my father’s passing, I’m trying to pay a little attention to the news while I’m in Israel. As I explained in a previous post, Israel’s 37th government–the most right-wing, religious, and nationalistic in its history, populated by convicted criminals and terrorists–is the consequence of Binyamin Netanyahu’s efforts to avoid going to prison for his crimes. He will sell out to anyone, and do anything, to evade accountability, and as a consequence has sold out to religious zealots out to disenfranchise women and minorities, commit unprecedented horrors and atrocities in the already traumatized occupied Palestinian territories, and shatter even the few remaining vestiges of social democracy–all with the blessing, ideology, and funding, of Kohelet Policy Forum.
A big part of this effort to overthrow democracy is a deliberate and calculated strategy to weaken the Israeli judiciary. Marketing their project as populist antagonism against the elitist judicial “junta”, the overhaul pushers set out to aggressively politicize not only judicial decisionmaking, but also the appointment of judges themselves. With the reform in stalemate due to the hard, relentless work of hundreds of thousands of protesters (including my parents; my father faithfully reported to each protests until shortly before his illness and passing), the government is trying all the tricks it has up its sleeve to nevertheless get to control the judiciary and rein in constitutional protections.
One of the consequences of these underhanded tactics is that the Israeli public is beginning to be exposed to the nefarious ways in which the sausage is made, as the vital struggle for democracy worms itself into arenas that were previously impermeable to average people and, honestly, incredibly boring. One such place is the Israel Bar, which is holding its election for Chairperson and for the Council on June 20, 2023. One of the contenders is Effie Naveh, the previously ousted Chairperson, whose wheelings and dealings are a long and disgusting story of profound corruption. If you read Hebrew, you can familiarize yourself with the details here. If you don’t, here’s the low-down: Naveh, who is rotten through and through, has spent years pulling strings and placing his friends and lovers in high places. He essentially pimped two of the women he slept with to try and get them judicial appointments. As explained in Ha’aretz, a woman by the name of Eti Craif,
a former police prosecutor, was appointed a judge on the Netanya court in July, 2016 – a few months after her name was first proposed to the panel that selects judges. Nave admitted to police that he was having an intimate relationship with Craif at the time, but denies that he used his influence to get her promoted.
According to Lemberger, the decision to start proceedings was based on evidence that “Craif was intimate with Nave not only out of attraction, but also with the purpose of advancement, and that Nave was aware of it.”
However, it was reported, “after hearing the arguments and explanations of the defense, the deputy state prosecutor thought the assessment of the evidence had to be revised.” Lemberger believes it would be difficult to prove that the two committed a bribery offense, since the relationship between them began before Craif needed assistance from Nave, due to the “lack of explicit stipulation” and because the alleged “gift” was “an intimate meeting by consent and mutual will.”
Craif, who is a piece of work in her own right, apparently also slept with minister Moshe Kachlon, exchanging juicy sexts with him, and is now shamelessly selling her story to Hollywood.
Naveh also pulled strings for his friend Yosef Elron’s appointment to the Supreme Court; got the husband of one of his lovers an appointment to the judiciary; slept with a law graduate (behind his wife’s back) in return for help passing her bar exam; got his pal Yoram Broza a judicial appointment even though Broza flunked the tests for the judiciary; hooked personal friends up, including then-chair of the bar’s ethics committee, with well-paying arbitration gigs; teamed up with the Minister of the Judiciary, Ayelet Shaked, for all these promotions as well as legislation that promoted the business interests of his allies; and drove and parked throughout Tel Aviv, including in front of hospital ERs, with a fake disability tag. In another incident, Naveh helped a lover of his enter and exit Israel without having her passport stamped, to gain an advantage in his own ugly divorce proceedings. The last incident, and the bribery that accompanied it, led to a criminal conviction. These are truly just drops in the bucket of his depravity.
Naveh’s involvement in these scandals led to his ouster as Chairperson of the Bar. But, astonishingly, he has the audacity to run again in the current election, which is a sad testament to how low the bar has sunk. A committee found that digital signatures in support of his candidacy were unlawful, but this decision was later reversed, and he’s running again. While Naveh has repeatedly claimed that, as a candidate, he is politically neutral and disfavors the judicial overhaul, he has stated that he is personally conservative. But there is solid confirmation of his involvement in politics, particularly with former law minister Ayelet Shaked, to the point of having people list themselves as right-wing party voters in return for judicial appointments. But even without this smoking gun, it should be evident to all that Naveh is an unprincipled, immoral person who will sell out and, with this government in power, an unhealthy alliance between politicians and the bar might provide a bypass that will hasten the downfall of judicial independence in Israel.
What this means is that the struggle for democracy, which usually plays out in plain public view, is now taking place in obscurity, through the upcoming bar election. Naveh’s main opponent, Amit Becher, who is also the incumbent chairperson, has led the charge against him, arguing (correctly) that Naveh’s rot will disgrace the bar. The main challenge that everyone faces is… indifference. Usually, lawyers don’t even bother voting in bar elections and, while this time people of all political stripes are so appalled by Naveh’s actions and disgusted with him that there’s an uptick in interest, it might not be enough.
I want to highlight two especially interesting aspects of the fight against Naveh. A group of people I greatly admire and like are running as an independent party for the Bar Council. Their party is called LeTachlit Reuyah (“for an appropriate end”) and the candidates are all committed public interest and human rights folks. They are running on a pro-democracy platform, vehemently oppose the judicial overhaul, and are all people of personal integrity and ethics who are highly respected and valued in the profession.
The other aspect of the fight is spearheaded by attorney Barak Cohen, whose confrontational activist style and personal courage has characterized him for years, since he led the charge against corruption in Israel’s financial institutions. Barak has been fighting a populist, aggressive, uncompromising battle against Naveh and his cronies. He identifies Naveh’s donors, publishes their names, and asks them hard questions about their financial wheelings and dealings. To date, his work has been successful in peeling some of these folks off of Naveh’s party. Seriously, look this guy up on Facebook and on Twitter –I don’t think I’ve ever met anyone who is so utterly fearless. His work is 100% transparent and he shares all the details and shows his work on social media.
In short, if you want to help prevent the hijacking of democracy through the obscure channel of Bar elections, there are two things you can do. If you are a practicing Israeli attorney (my Israel Bar membership is inactive, as I’m living, teaching, and practicing abroad) you should vote for Amit Becher for chairperson and for LeTachlit Reuyah as a party. Any non-vote is a vote for Naveh, a vote democracy cannot afford. And, whether or not you practice law in Israel, you can and should throw some money down Barak Cohen’s way, because leading a relentless fight for honesty and integrity isn’t cheap.
