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.

Postconviction Review: The Scarf-and-Horseback Edition (b.Sanhedrin 42b)

Welcome to a new blog feature, in which I chat about a cool, unusual, or edifying bit from the daf yomi. Originating in the 1920, “daf yomi” is a Jewish learning regimen for the Babylonian Talmud, in which every day Jews from all over the world learn the same page. The Daf Yomi webpage, Hebrew text resource Sefaria, and many other resources can point you to the day’s page. I don’t always love this method–it can lead to speeding through some interesting stuff while spending more time on things that are less exciting–but I do find it appealing to be on a general calendar of learning with the rest of the Jewish world, across diverse denominations, beliefs, orientations, values, and methods.

One of the things that I find most appealing about Talmudic study is a logical approach to perennial problems of justice and ethics, and today’s page is no different. The last few days’ worth of pages find us in Tractate Sanhedrin, which addresses various law, adjudication, procedure, and evidence problems, which are of course of special interest to me. Pages 41-42 are concerned with issues involving evidentiary contradictions, the value and weight of testimonies, and issues involving last-minute halting of executions.

Readers who find this material crass might be comforted with the reminder that the Bavli is not an accurate historical record of criminal proceedings. Writings from the Second Temple era confirm the existence of the Sanhedrin, a high court within the Hasmonean empire and beyond (seated as a “big” Sanhedrin of 71 or a “little” Sanhedrin of 23–election proceedings dissected in the early pages of the tractate), but the extent to which it regularly issued judgments of life and death are dubious. The Talmud itself refers to the rareness of executions (saying that a Sanhedrin that ordered executions once every seventy years would be regarded as hovlanit, trigger-happy). By the time the Babylonian Talmud coalesces, it has been centuries since an actual Sanhedrin was convened, so a lot of this stuff is best understood as using scriptural anchors to elaborate on legal logic, rather than as a description of proceedings before real tribunals.

Anyway, Sanhedrin 42b turns to issues of executions, describing matters as follows:

אֶחָד עוֹמֵד עַל פֶּתַח בֵּית דִּין, וְהַסּוּדָרִין בְּיָדוֹ, וְסוּס רָחוֹק מִמֶּנּוּ כְּדֵי שֶׁיְּהֵא רוֹאֵהוּ. אוֹמֵר אֶחָד: ״יֵשׁ לְלַמֵּד עָלָיו זְכוּת״, הַלָּה מֵנִיף בְּסוּדָרִין, וְהַסּוּס רָץ וּמַעֲמִידָן. וַאֲפִילּוּ הוּא אוֹמֵר: ״יֵשׁ לִי לְלַמֵּד עַל עַצְמִי זְכוּת״, מַחֲזִירִין אוֹתוֹ, אֲפִילּוּ אַרְבַּע וְחָמֵשׁ פְּעָמִים, וּבִלְבַד שֶׁיֵּשׁ מַמָּשׁ בִּדְבָרָיו.

One man stands at the entrance to the court, with cloths [vehasudarin] in his hand, and another man sits on a horse at a distance from him but where he can still see him. If one of the judges says: I can teach a reason to acquit him, the other, i.e., the man with the cloths, waves the cloths as a signal to the man on the horse, and the horse races off after the court agents who are leading the condemned man to his execution, and he stops them, and they wait until the court determines whether or not the argument has substance. 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.

This passage offers a few curiosities. Beyond the obvious drama of the whole thing, note that it is assumed that the folks inside the court will continue debating the matter of the convict’s guilt even as the convict has already been taken to the place of execution. Is this an academic issue for them, which merits continued discussion? Does it have to do with the previous issue of disagreeing about the contradictions between the prosecution’s witnesses? And how long does the horseback rider have to stand there waiting for the courtroom reporter, if you will, to come out waving the scarf? What happens if the court changes its mind, and the reporter desperately waves the scarf, but it’s too late? What happens if it’s not too late, but the horseback rider doesn’t see the scarf?

Another interesting thing about this passage is the implication that the execution takes place far away from the court. Much of the daf tries to find biblical anchoring for the distance from Moses-time justice, but there is also some commentary that suggests practical logic:

אִין, כִּדְקָאָמְרַתְּ. וְהָא דְּקָתָנֵי הָכִי, נָפְקָא מִינַּהּ דְּאִי נָפֵיק בֵּי דִינָא וְיָתֵיב חוּץ לְשָׁלֹשׁ מַחֲנוֹת, עָבְדִינַן בֵּית הַסְּקִילָה חוּץ לְבֵית דִּין, כִּי הֵיכִי דְּלָא מִיתְחֲזֵי בֵּית דִּין רוֹצְחִין. אִי נָמֵי, כִּי הֵיכִי דְּתִיהְוֵי לֵיהּ הַצָּלָה.

The Gemara answers: Yes, it is as you said, that the place of stoning was outside the three camps. And the practical difference from the fact that the mishna teaches the halakha in this manner is that if it happened that the court went out and convened outside the three camps, even then the place of stoning is set up at a certain distance from the court, and not immediately adjacent to it, so that the court should not appear to be a court of killers. Alternatively, the reason the place of stoning must be distanced from the court is so that the condemned man might have a chance to be saved, i.e., so that during the time it takes for him to be taken from the court to the place of stoning someone will devise a claim in his favor.

In other words, there are several reasons for setting the place of execution at a distance. One of them has to do with the optics of the court as a place of compassion. It’s not a nod at any modern notion of separation of powers; rather, it is the idea that associating adjudication with execution is unsavory and can lead to antipathy and, possibly, undermining of the court’s authority/legitimacy. The other one is precisely to facilitate the scarf-to-horseback method of postconviction review, which implies that people might still be working in the condemned’s interest even after the sentence is pronounced.

Having taught postconviction review and exonerations in law school, this stuff makes me think of the last-minute horrors that happen every time an execution approaches. Last-minute appeals, desperate litigation, petitions to the Governor, etc. Three years ago we marked a decade from the execution of Troy Davis, a man who many believe (and believed back then, as well) to be innocent of the crime. I remember collecting signatures to send to the Governor of Georgia to spare Troy’s life and holding a sit-in at my office about the case. In the years after Davis’ conviction, seven of the nine witnesses against him recanted, stating that they were subjected to police coercion, and persuasive evidence emerged that another man–the initial suspect–had committed the crime and, in fact, confessed to it. Not a shred of physical or forensic evidence connected Davis to the crime. We were unsuccessful and Davis was executed.

Even those saved by the “wave of the scarf” at the last minute have to endure disbelief, humiliation, and–when their compensation lawsuits fail–penury. One examples is John Thompson, who was convicted of a robbery and an unrelated capital murder in Louisiana; the crucial piece of evidence collected at the crime scene was a blood sample, which was never tested, and whose existence remained hidden from the defense for eighteen years, until a month before Thompson’s execution, when a PI working for the defense uncovered it. The blood did not match Thompson’s and he was exonerated. He was later unsuccessful in receiving compensation from the state, with the majority opinion claiming that no Brady violation had happened because the untested blood sample was not exculpatory evidence. Thompson wrote a searing op-ed to the New York Times about his experiences:

In 2005, I sued the prosecutors and the district attorney’s office for what they did to me. The jurors heard testimony from the special prosecutor who had been assigned by Mr. Connick’s office to the canceled investigation, who told them, “We should have indicted these guys, but they didn’t and it was wrong.” The jury awarded me $14 million in damages — $1 million for every year on death row — which would have been paid by the district attorney’s office. That jury verdict is what the Supreme Court has just overturned.

I don’t care about the money. I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn’t do and nearly had me killed are not in jail themselves. There were no ethics charges against them, no criminal charges, no one was fired and now, according to the Supreme Court, no one can be sued.

Worst of all, I wasn’t the only person they played dirty with. Of the six men one of my prosecutors got sentenced to death, five eventually had their convictions reversed because of prosecutorial misconduct. Because we were sentenced to death, the courts had to appoint us lawyers to fight our appeals. I was lucky, and got lawyers who went to extraordinary lengths. But there are more than 4,000 people serving life without parole in Louisiana, almost none of whom have lawyers after their convictions are final. Someone needs to look at those cases to see how many others might be innocent.

If a private investigator hired by a generous law firm hadn’t found the blood evidence, I’d be dead today. No doubt about it.

A crime was definitely committed in this case, but not by me.

One only wishes that, rather than basking in the self-appeasement of having done no wrong, these officials, and those who worked with them, vigorously and unceasingly, desperately and demonstrably, waved the scarf so that any distant horseman, on any hill, would see them on time.