Rabbi Michael Leo Samuel

Yesterday, the State of Georgia executed Troy Davis in one of the most controversial cases dealing with the ethics of the death penalty and its practical implementation. After reading this story, I wondered how the Sanhedrin would have ruled in such a case 2000 years ago. I am reminded of a remarkable rabbinical argument that could have taken place even now in the 21^st century:

According to biblical law, a man cannot be executed on the basis of a single witness, for the Torah explicitly says: “On the evidence of two or three witnesses the death sentence shall be executed; a person must not be put to death on the evidence of only one witness (Deut. 17:6-7). In rabbinical law, we find: One Sage said, “A Sanhedrin which imposes the death penalty once in seven years is called murderous.” R. Eleazar b. Azariah says, “Once in seventy years.” R. Tarfon and R. Akiba say, “If we were on a Sanhedrin, no one would ever be put to death.” Rabban Simeon b. Gamaliel says, “So these Sages would multiply the number of murderers in Israel” (Mishnah Makkot 1:10).

Rabbinical law would have had serious difficulties convicting Troy Davis for a variety of reasons. Troy Davis’s execution highlights the problems often seen in cases involving capital crimes like homicide. With respect to Davis, the court never produced convincing evidence that he had murdered the cop that he was alleged to have killed. Seven out of nine of the witnesses who claimed to have seen him shoot the victim, later rescinded their testimonies except for one. Others point to a different man—the eighth witness, who first implicated Davis—as the real killer. One ballistic test was discredited later during the trial hearings. Some of the jurors, who voted for execution, later said they would have voted differently had they been aware of the lack of actual ballistic evidence. “If I knew then what I know now,” juror Brenda Forrest said in 2009, “Troy Davis would not be on death row.”

Significantly, some of the witnesses claim their testimonies were coerced by the police. Sometimes, in their desire to capture the criminal, police will try to put a lid on the case by nabbing anyone who might appear to be the culprit. Coerced confessions are a staple in many communities around the country; it is a problem that most citizens are unaware of existing.

Having seen a similar case in Upstate New York, involving three young men who were accused of killing an Indian immigrant at a gas station shortly after 9/11, I know firsthand how the police sometimes will beat a person into making a confession, for one of the young men accused happened to be a son of one of my congregants. The day after he was arrested, I visited him and saw the welts that were all over his back. Several years later, two of the accused died in prison; one from illness, another from a brawl. However, the Jewish young man had a well-to-do father who fought for his innocence. Ultimately, the young man was released because the police coerced the confession; in addition, the evidence indicated that he did actually kill the immigrant; however, a man is always judged by the company he keeps (I told him that countless times in private visitations I had with him over the years). The Jewish young man was lucky he had a father who could pay for a second trial; Troy Davis wasn’t so fortunate because he was a poor Afro-American who did not have the financial means to hire the best attorneys.

Well, with respect to the Troy Davis story, this man was convicted solely on the basis of eyewitness testimony, which as we noted above, proved to be dubious indeed! There are so many conflicting problems in this case; one must wonder whether the court ever proved that he was guilty, “beyond a reasonable doubt,” as the State demands. When more than three-quarters of the witnesses change their story, and another actually confesses, how can any jury say that they have justly arrived at a verdict? Was there proper due process?

Rabbinic law is pretty straightforward about such cases. Maimonides write, “The following rules apply when two groups of witnesses offer conflicting testimonies. If one witness from one group came together with one witness from the other group and they both delivered testimony concerning another matter, the testimony is of no consequence for it is obvious that one of them lied, but we cannot ascertain which one” (MT Hilchot 22:1). Likewise Maimonides also notes, “Should a court err with regard to a case involving capital punishment and convict an innocent person, ruling that he is guilty, and they discover a rationale that would require that the ruling be nullified and he be vindicated, they nullify the ruling and retry the case. If the Court erroneously ruled and acquitted a person liable to be executed, then the judgment is not nullified and the case is not retried” (MT Sanhedrin 10:9).

Furthermore,according to the JT Sanh. II, 6 (20c) כל דיאתיקי שבטלה מקצתה בטלה כולה . The law is stated that if one of a hundred witnesses is declared invalid, the entire testimony is rejected. [1] This was certainly the case here, and in a Jewish court, Troy Davis would never have been executed on this basis alone, and would have probably even been set free. Beyond this point, if the judge suspects the witnesses are indeed lying, he must refuse to render a decision upon the basis of their evidence (cf. Isa. 11:3-4). [2] It is difficult to see how this would not have been the case here in the Troy Davis trial; furthermore, known criminals cannot testify in court either because they have zero credibility in rabbinical law and a valid witness is not even allowed to be associated with a dishonest witness (cf. Choshen Mishpat 34ff.). [3]

It is also worth nothing that since 1970, more than 130 wrongfully-convicted Americans have been released from death row, because of new DNA findings. This fact should give every proponent of capital punishment a moment of pause and profound humility. If killing a person is like destroying a world (as our Sages teach), how many worlds have we in our zeal for justice, executed unjustly? Keeping him in prison, if nothing else, would at least prevent injustice form occurring. Besides, even the Talmud tells us that incarceration in doubtful capital crimes was a safe precaution in keeping a doubtful murderer off the streets.

The Troy Davis trial attracted a lot of international attention. A number of prominent leaders and personalities e.g., US President Jimmy Carter, Al Sharpton, Pope Benedict XVI, Archbishop Desmond Tutu, former U.S. Congressman and one-time presidential candidate Bob Barr, and former FBI Director and judge William S. Sessions—all called upon the courts to grant Davis a new trial or evidentiary hearing.

While it is unclear as to whether Troy Davis really was guilty or not, there are too many holes in the trial that would convince me that he was indeed guilty as charged. I can see Hollywood making a movie about this story in the next few years. I, for one, would not want to be any of the judges who wished to deny a rehearing of the cases; in the World of Eternity-we are all accountable for our deeds. The death penalty seems to be more about blood lust than it is about carrying out justice.

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[1] Regarding the principle עדות שבטלה מקצתה בטלה כולה , see BT Gittin 33a and JT Βava Kama 8.4, cf. also Makkot 1.7 for more illustrations.

[2] See BT Sanhedrin 6b.

[3] א {א} רשע פסול לעדות ואפילו עד כשר, שיודע בחבירו שהוא רשע, ואין הדיינים מכירים רשעו, אסור לו להעיד עמו, ג אף על פי שהוא עדות אמת (ל’ הרמב”ם פ”י מעדות). ואצ”ל עד כשר שהוא יודע בעדות לחבירו, וידע שהעד השני שעמו עד שקר, שאסור לו להעיד.