America’s Legal System Is Rife With Injustice — And Jews Need To Help Fix It
Capitol Hill police arrest Jewish activists protesting for passage of a clean DACA bill on Capitol Hill on January 17, 2018 in Washington, D.C. (Photo by Tasos Katopodis/Getty Images) Image by Getty Images
By Joel Cohen July 30, 2018
Troubled greatly these days by the injustices all around us, I sat in synagogue some weeks back and came once again upon the ritual of the Sotah: the bizarre, seemingly barbaric procedure employed in Biblical times to placate a man consumed by suspicion over his wife’s unfaithfulness.
Is it curious why he is so jealous? Is she too young, too pretty? Out of his league? Or, he may be right — she may be an adulteress. But he lacks proof. No DNA. No high-power divorce lawyer. No receipts in her coat pocket from her assignations with her lover at the “no-tell-motel.” No GPS tracking device to place under her camel.
But they live in theocratic times, and determining her fidelity will be left to God. His representative on earth — the Kohen — will “unfailingly” make the judgment for Him (and, of course, for the possible cuckold husband). Here is how it works: The Kohen serves the woman a cocktail of bitter waters. If she is innocent, nothing will happen. If she is indeed an adulteress, her thigh will collapse and her stomach will distend. She will suffer an extraordinarily painful death with her body literally exploding.
Does it sound as if this “trial by ordeal” serves justice? Putting aside the barbarous penalty of death, we are assured that this “trial”-by-magic-potion was foolproof — no guilty woman was ever exonerated, and no innocent woman found guilty.
And so, as I read along, I began to think about how we approach justice today. We lack magic potions. We have no foolproof means to ensure that justice prevails. And while our American system is to be applauded in many respects, there is also much injustice. My book, “Broken Scales: Reflections On Injustice,” deals with such cases; I interviewed 10 individuals around the country implicated in injustices.
Take Marty Stroud, then a chief assistant district attorney in Shreveport, Louisiana. More than 30 years ago, he prosecuted Glenn Ford, a black man, for murder. Ford — convicted — had gone to trial with both hands tied behind his back. And he was represented by an appointed lawyer who practiced oil and gas law and had never tried a single jury trial, let alone a capital case.
Ford sat on death row for three decades. One day in 2014, Stroud, by then in private practice, got a call from the district attorney: Ford was innocent. So they “set it right” and released him. Set it right? Just imagine how much has been going on in your life in the last 30 years. In that time, Ford sat in a cell about the size of your king-size bed. He was literally robbed of his life, never knowing if or when he would be executed.
Interviewing Stroud, you could hear the tick of the seconds that elapsed as he struggled to answer. He took 30, 60 seconds to answer some questions. Stroud tried to apologize to Ford, visiting him at a halfway house. But forgiveness never came. At first, Ford was not ready; and then, he died a few months after his release from a cancer that was never properly diagnosed in jail. Stroud actually turned himself in to the Louisiana disciplinary committee. “Every morning when I wake up I have a hole in my stomach. A cold emptiness with the north-wind blowing straight through it.”
I flew back from interviewing Stroud — he was so tormented, and he wasn’t even the victim! Speaking to him, I could almost hear time ticking like water dripping from a leaky faucet, as if from a sink in Glenn Ford’s cell. “Justice” in a small southern town, I thought to myself.
I next thought about Kenneth Ireland, who grew up in the small, working-class town of Wallingford, Connecticut. When Ireland was 17, a 30-year-old mother of four was brutally raped and murdered. Ireland became the prime suspect and was tried, convicted and, at the age of 20, sentenced to 50 years, in part because the judge felt he didn’t show the proper remorse for his actions. Remorse for a crime he said he hadn’t committed.
About 20 years into his 50-year sentence, the Innocence Project — which does remarkable work — became interested. Almost by chance, Ireland and his lawyers were able to locate DNA which, given testing advances, exonerated Ireland. Ireland, innocent all along, told me about prison survival mechanisms, things I had never thought about before. You could not get involved in what did not directly involve you — he stepped over a bleeding inmate, he watched as a man was burned alive. He did not — could not — become involved in what was “none of his business.” Ireland picked fights every few months, making sure other inmates knew not to mess with him. These were his survival mechanisms.
Ireland described the day he walked out of the courthouse with family and Innocence Project lawyers. He looked across a restaurant and saw a man staring back at him. “Who is this ‘old guy’; why is he looking at me like that?” Ireland didn’t know he was looking at himself in a mirror, explaining that in prison, you never really see yourself — plastic slates with silver coating are all you have to shave. And at 41, Ireland hadn’t actually seen himself for 20 years.
I asked whether after he was released he contacted the cops who had charged him. No, for what value? If they say they’re sorry, what do I get out of that? As I left for home after interviewing Ireland, I had that same tight knot in my throat. Small towns, I thought — Shreveport, Wallingford. Not the same as an urban center like New York, right?
Not right. Abdallah Higazy, Egyptian-born, was an exchange student at the Polytechnic Institute in Brooklyn. Because housing wasn’t yet available, the school put him up at the Millennium Hotel across from the World Trade Center. This is August 2001. And Higazy was still at the hotel as the towers fell on 9/11. He was evacuated with all of the other guests and went back a couple of months later to retrieve his belongings. They handed him a list. Koran. Check. Prayer Rug. Check. Clothing. Check. Transceiver device. What? What is that? And with that, Higazy was told that the FBI was waiting to talk to him: A transceiver allows one on the ground to communicate with one in the air, and a hotel employee insisted he found it in Higazy’s room, in his safe, even.
Higazy was charged as a “material witness”. He demanded to take a polygraph because he was innocent. His court-appointed lawyer strongly recommended against it, as did the judge — polygraphs are not reliable or admissible. But Higazy insisted. He was innocent. The way polygraphs work, the subject is alone with an FBI agent, who must get “baseline” information. Higazy talked about his parents in Egypt; his brother studying in Ithaca. Hours later, Higazy confessed — the transceiver was his. In effect, he was really confessing to being the 20th (and only living) hijacker. You see, in that closed room, the agent “explained” that Higazy should “cut the crap,” because they both “knew” Higazy was guilty, and that if he didn’t confess, Egyptian authorities would be notified, and his parents (in Egypt) and brother (in upstate New York) would be under suspicion. In fact, in Egypt, the consequences would be more severe.
On Higazy’s 34th day in solitary, he was brought to the marshal’s office — no chains on his hands or his feet. He was terrified: “I don’t have a court appearance scheduled for today.” But he was there to be released — an American pilot who had been at the hotel on 9/11 returned to pick up his transceiver device. Had it not been for that pilot, who knows? And — given my own small-town prejudices — I remind myself that this is in New York City; a venue where prosecutors have the resources to make sure these things simply don’t happen.
In these cases, there was no magic potion for American justice to establish guilt or innocence. Strangely, it almost seemed that a return to the Bible’s trial by ordeal might have actually exonerated countless numbers of those falsely accused, and not have left them relegated to an occasional happy ending simply based on chance or luck (assuming, of course, you believe in the certainty of that potion — and in the death penalty!). But that can’t possibly be the way it should go.
We are told in the Torah: “Tzedek, Tzedek Tirdoff” — Justice, justice you shall pursue. But it’s not enough to only pursue justice — we must lunge after it. And we, the Jewish people, are separately directed to a special mission: “tikkun olam”. We are to “repair the world.” God has told us that we — meaning our greater community — are here on earth to make the world better. How astonishing. An implicit recognition, or even an outright statement, by God Himself that He has (deliberately) created the world in perpetual disrepair precisely to make us become his partner, as it were, in seeking to repair it. Just imagine: we are God’s partner in repairing His world!
There is no question, even in the mind of a cynic such as myself, that we Jews as a community — in the capacity of judges, lawyers, prosecutors, commentators, philanthropists, laborers, educators, parents and children — are better able than any to be that medium to help repair the world as it impacts, and balances, those scales of justice.
And so, to rise to that heady task, we should resolve to dedicate ourselves — to commit ourselves — to help God to repair His world, particularly along the long expanse of the boulevard of justice.
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