Rabbi Michael Leo Samuel

Question: My mother is 90 years old, in frail health but of sound mind. Last year, one of her 3 grandchildren and the youngest of my 2 sons died in an accident at age 29. My son and my mom were close. As an adult, my son moved to another state but made a point of visiting every few years. He has remained in contact with regular phone calls and other correspondence. My sister has demanded that my mother not be informed of my son’s death. She argues that my mother will die in a few years anyway and so should be spared the sad news, that the grieving process could hasten my mom’s death. “Let mom die in peace.” I’ve complied with my sister’s demands. Whenever my mom asks me about my son, my rehearsed response is “Your grandson loves you dearly.” But as time passes without contact from my son, I’m concerned that my mom has concluded that my son has lost interest in his grandmother. For my mom’s sake, I’m uncomfortable with keeping her in the dark. But I’m also conflicted. I miss my son so very much. To include my mom in my own grieving would benefit me. After all, she is my Mom. Any ideas?

Answer: To begin with, I wish to offer you my sincerest condolences on the loss of your beloved son.

After discussing your letter with two psychologists, an ethicist, and an attorney, we arrived at the mutual opinion that you have every right to tell your mother what exactly happened. One does not live to be 90 years old without enduring some painful moments.

Mothering is a lifetime vocation, and I feel she will rise to the occasion and give you the maternal support you need. Oftentimes an older parent can display a courage and ability to rise to the occasion. She has a right to know. And you, as her daughter, have the right to tell her. Hiding the truth in this case is denying your mother’s personal autonomy.

If the situation was in reverse, and you were in your mother’s shoes, what would you want? Pose the same question to your sister (if you haven’t already), “Beloved sister, what would you do if the situation were in reverse?” It is possible she would not act any different, but that is ultimately her choice.

Naturally, it goes without saying that the manner in which you disclose this information is of the utmost importance. Be careful how you word with what you’re going to say. Given the sensitivity of the matter, you may want to have an old family friend or rabbi (if you are close with your rabbi) present with you to lend emotional support.

Incidentally, physicians are often confronted with this type of situation all the time. Physicians often have to tell an elderly or dangerously ill patient the truth about their condition and their chances for survival. Most of the literature I have studied on this subject indicates that the elderly patient has every right to know, but the matter must be tactfully approached.

Your letter did not indicate what kind of relationship you have with your sister. Nevertheless, she is entitled to her opinion, but you are not beholden to accept her opinion simply because she is your sister. As a loved one approaches death, there is considerable separation anxiety that children feel. That is normal, but your mother also realizes that on some psychological and moral level, she has responsibilities to you. Allow the floodgates of motherhood to bring healing to your relationship. And for this final act of kindness and love, you will forever feel grateful that she was there with you—to the very end. Continue Reading

Historically, rabbinic tradition took a dim view of capital punishment. Mishnahic law required that those accused be warned by witnesses immediately before they commit the offense, and that they acknowledge such warning—a clear indication of the rabbinic distaste for capital punishment, explicitly found elsewhere.[1] Life imprisonment did exist for cases that could not technically be legally prosecuted, even though the evidence left no room for doubt[2]; such a person had to subsist on sparse diet of barley bread and water, and the Talmud indicates the criminal usually died from starvation. There may be a Scriptural allusion to this practice: the prisoner was condemned to eat “the bread of misfortune and the water of distress” (Isa. 30:20). Other rabbinic statements make it near impossible to convict the accused villain:

• R. Yose says, “Under no circumstances is one put to death unless both witnesses against him have given warning to him,” as it is said, ‘At the testimony of two witnesses’ (Deut. 7:6).”[3] He whose trial ended and who fled and was brought back before the same court—they do not reverse the judgment concerning him and retry him. He whose trial ended and who fled and was brought back before the same court—they do not reverse the judgment concerning him and retry him . . . 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.”[4] Rabban Simeon b. Gamaliel says, “So these Sages would multiply the number of murderers in Israel.”[5]

Moreover, the defendant may not be put to death unless two (or in some cases three) eyewitnesses testify against him or her. Each witness must be so certain of his testimony that he personally would be willing to carry out the execution. A passage from Deuteronomy 19:13-21 asserts that a plotting witness is subject to the same punishment as the defendant—including, in all probability, capital punishment. Although the Torah prescribes the death penalty in the case of adolescent rebellion (i.e., “the rebellious son” of Deut. 21:18-21), the Sages admit, “Such a case never occurred, and it never will happen.” They argue that the entire passage is heuristic, so, “That you may study [the Torah for its own sake] and receive reward.” [6] The rabbinic angst and reticence to implement the death penalty, and its alternative system of imprisonment is of considerable relevance for modern biblical scholars and laity.

Subsequent rabbinical law is pretty straightforward about such cases. Maimonides writes, “The following rules apply when two groups of witnesses present conflicting testimonies. If a witness from one group came together with one witness from a different group and both deliver testimony concerning another matter, the testimony is of no consequence. It is obvious that one of them is lying, but we cannot ascertain which one.”[7]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.” [8]

According to the Jerusalem Talmud, one disqualified witness invalidates all other testimonies—regardless of the number of witnesses testifying. [9] If a judge suspects one of the witnesses is actually lying, he cannot render a decision (cf. Isa. 11:3-4). [10] Unlike American civil law that allows known criminals to testify in court against an alleged murderer, rabbinic law prohibits the testimony of criminals because (1) they have zero credibility in rabbinical law and (2) a credible witness cannot join forces with a dishonest witness. [11] Among modern Talmudic scholars, R. Louis Jacobs points out that despite the reticence of rabbis in the Talmud to apply the death penalty, the Sages acknowledged that are a number of important exceptions.

Against all this is the Talmudic statement (Sanhedrin 46a) that as an emergency measure, “when the generation requires it,” a court has the power to “act against the Torah” and to order an execution or other “illegal” physical penalties. In other words, although it is illegal to impose the death penalty, the court can, on rare occasions, act illegally if the aim is to protect the Torah. Naturally, it all depends on the circumstances that would warrant executions without the due process of the law. The statement was never interpreted as meaning that what the Law took away with one hand it gave back with the other.

The German and French communities in the Middle Ages ignored the statement altogether and never imposed the death penalty, not even when circumstances seemed to call for it. Not so in Muslim Spain, where the Gentile authorities gave the Jewish courts a good deal of autonomy. In Spain, albeit on rare occasions, the courts did rely on the Talmudic statement and imposed otherwise illegal penalties such as mutilation (found nowhere in the classical sources) of certain offenders; they also executed offenders such as informers who endangered the community. When Asher ben Yehiel (d. 1327) came from Germany to Toledo in Spain he expressed his horror at the Spanish practice, totally unknown in Germany, although later on, he himself conformed to the Spanish norm.

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