Not to Kill a Criminal Until S/he Has a Trial

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by R. Gidon Rothstein

Parshat Mas’ei

It would be easy to assume a trial is about verifying someone has committed the crime, and could therefore be dispensed with when it is clear s/he has in fact done the deed. I once knew a dedicated criminal defense attorney, since deceased, who argued that many defendants who had “done the crime” were nonetheless legally innocent or deserved a lesser sentence than the prosecution sought.

Trials Show Openings to Leniency

Our mitzvah, Prohibition 292, has some of the same view. Bamidbar 35;12 says a main purpose of arei miklat, cities of refuge, was to ensure a murderer not be killed (by the go’el hadam, the blood avenger relative of the victim) before s/he stood trial. We may be supremely confident the defendant violated a capital crime, the Torah yet requires us to bring him/her to court, hear the witnesses, and so on.

Even if the Sanhedrin itself saw the crime, they would have to find another court to try the case, where they could be witnesses. Minchat Chinukh adds that Rambam might allow members of the Sanhedrin to sit on the court judging the criminal, because he holds having seen a crime does not stop a potential witness from instead sitting as a judge.

Sefer HaChinukh 409 gives the reason my friend alav ha-shalom did, adapted to the death penalty. To kill someone is a serious matter (or it should be), requires great care, and the community has been commanded to save a murderer wherever there is room to find some merit in life-saving claims. He need not be innocent for him to be free of the death penalty. The witnesses cannot judge the matter because, having seen what s/he did, they will be less likely to also see any mitigating circumstances.

Prevention Is Not as Delicate

Sefer HaChinukh includes some laws of rodef in his discussion of our mitzvah. A trial is necessary after a crime, but if the person is still in the act of committing murder or rape, anyone able must prevent it, even if it requires lethal force, as long as the potential criminal is warned. (In contrast to a court-administered punishment, for stopping a rodef, the criminal need not acknowledge the warning.)

Remarkably, Sefer HaChinukh includes women in the obligation of the mitzvah, despite courts and court proceedings being a male-only domain. He seems to mean that if a woman is among those who saw a crime, she (like the men) may not kill the criminal until s/he gets a trial. Anyone who does kill the criminal in such a situation, even if there is ample evidence to convict him/her in court, has committed murder most foul and could themselves be liable for death.

Minchat Chinukh here raises a question I usually don’t have space to entertain. He many times in the sefer cites the view of Rashi, witnesses must invoke the correct verse in the Torah when warning a criminal, and if they say the wrong verse, their warning is ineffective, because the criminal can say s/he knew they were incorrect about the existence of the prohibition based on that verse. For our case, if someone is about to kill a murderer without a trial, which we just said counts as murder, should they be warned with the verse of lo tirtzach, you may not commit murder, or could our verse, that the murderer shall not die, also work?

It gets at what the person is doing wrong—has the Torah here revealed that punishing a murder pre-trial counts as if it is being done to any Jew, and is therefore murder, or is it a part of a standalone prohibition, not to punish criminals without a trial? He does not resolve the question.

Still Thought-Worthy Today

Chapter 425 of Shulchan Arukh Choshen Mishpat is called “those liable for the death penalty and how we judge them today,” surprising because we mostly do not judge them today, the death penalty administered by batei din only when the judges have the original semikhaShulchan Arukh spends the chapter on those whom private citizens may kill, mostly the rodef we discussed above.

However, Rema opens the chapter with a gloss before the Shulchan Arukh says anything, with the reminder we cannot administer the Torah-legislated punishments today, but we can put such people in nidui, ostracize them from the community. More, should a court see a need for the health of the polity [I believe he means spiritual health as well], they may act as they see necessary. Then, he moves the discussion to Shulchan Arukh’s focus, situations where private citizens might kill perpetrators.

To me, he reminds us our inability to set up the ideal court system is not supposed to mean we forfeit any right to any court system, any communal enforcement of our ideals, laws, and mores. Those, too, in line with the prohibition under discussion, would need verification with a trial. Because a trial shows us what witnessing might not, our prohibition tells us as we end the book of Bamidbar.

About Gidon Rothstein

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