Category Archives: issues of morality or ethics

Baffled by Batson

On a summer morning back in 1996, someone entered a furniture store in Winona, Mississippi and shot four people to death. The prime suspect was a man named Curtis Flowers, who had been fired from his job at the store less than two weeks earlier. He also owed $30 to one of the store’s owners, one of those murdered, for a cash advance she had given him on his paycheck.

The gun used in the crime was never found, but several witnesses claimed to have seen Mr. Flowers near the front of the store the morning of the murders.

Mr. Flowers stood trial six times. Four verdicts were overturned, and mistrials were declared in the two other cases. (The Fifth Amendment “double jeopardy” ban on retrial for the same crime only applies after an acquittal.) Flowers, who has been held on death row for nearly 20 years, is an African-American, and prosecutorial bias was repeatedly alleged, as was racial bias in jury selection.

On June 21, the U.S. Supreme Court overturned Flowers’ final murder conviction, with Justice Brett M. Kavanaugh writing for the majority. Flowers will likely remain in state custody until a decision is made to either retry or release him.

No one but Flowers knows if he was guilty of the murders; he claims innocence. What is interesting, though, about the High Court ruling is its pivotal contention that excluding black potential jurors from those chosen in his trials constituted illegal bias.

Some background: Prosecutors and defense lawyers generally conduct short interviews with members of a jury pool. Those with clear connections to the case are routinely dismissed, as are people with connections, say, to police officers when an officer is on trial, or to a medical field when a principal is or was a doctor in that field.

Then, though, there are “peremptory challenges” – the right of a prosecutor or lawyer to reject a jury candidate for no given reason. That right is generally assumed to be based on the rejecter’s inchoate suspicion that a juror would be biased in some way.

A limitation on peremptory challenges, however, was imposed by the Supreme Court in 1986, in a case, Batson v. Kentucky, in which it ruled that a prosecutor’s use of peremptory challenge may not be used to exclude jurors based solely on their race. That exception to the right to peremptory challenges has come to be known as a “Batson challenge.”

Some might (and some surely will) say that a lowly non-lawyer like me has no right or standing to take issue with a High Court decision. So I’ll frame my take on the Batson challenge merely as a simple expression of puzzlement over it.

To be sure, dismissing a potential juror just because he is black or Asian isn’t right. Racial bias simply isn’t justifiable. Unless, that is, it seems to me, the race of the person can reasonably be seen, in and of itself, as signifying a likelihood of bias.

In other words, attorney Joe Whiteguy may harbor the feeling that blacks are inferior humans and don’t deserve to judge anyone. But if he harbors no such feelings, but rather just sees it as likely that the average black American will feel an affinity for a black defendant, or animus toward a white one accused of some crime against a black person, is his use of a peremptory challenge to reject a potential juror because of his race different in any essential way from rejecting a candidate because of a family connection to the case?

I don’t know if all black Americans see themselves as “family,” but I think many clearly do. There is a “black vote,” after all, and there are “black causes”; and a “black perspective” is a staple of many media. There’s nothing in the least wrong, of course, with ethnic or racial camaraderie or pride. But is being concerned that it might bias a juror in a case involving someone of his or her ethnicity or race really unreasonable?

As in so many things, the key to a clear perspective may lie in placing oneself in the shoes of the other.

So I imagine a case where an Orthodox Jew is on trial. I’ve never met him and am not his close relative – we could without any problem be co-eidim on a kesuvah or a kiddushin – and find myself part of the jury pool. A lawyer for the defense or prosecution looks me up and down, dwelling on my yarmulke and tzitizis, and, without any questions, says “thank you, sir, for heeding your summons to appear for jury duty; you are dismissed.”

I might feel a bit insulted. (Actually, when I was peremptorily rejected as a juror once in a case where no Jew, much less an Orthodox one, was on trial, I was indeed perturbed!)

But would I be justified, in a case like the posited one, to feel that an injustice had been done to Jews or Judaism, that my dismissal was the result of base anti-Semitism and thus illegitimate?

With all due respect for the seven Burger Court Justices who comprised the majority in Batson v. Kentucky, I wouldn’t.

© 2019 Hamodia

Dear Graduates

[Back in 2007, I was privileged to address the commencement ceremony of Bais Yaakov of Baltimore’s senior class.  Below is an edited version of my remarks to the more than 100 graduates, their families and friends. I don’t feel they’r terribly dated — other than the reference to the then-still-alive Mr. Bin-Laden.]

Back in the day – the day when I was in grade school, that is – we were taught the “3 R’s” – Reading, Writing and ‘Rithmetic (that’s math to you, and yes, we didn’t spell so good back then).  Of course, you’ve all learned those things and more.  And as students of Bais Yaakov, you have also learned the really important things for a Torah life.

Among them, I think, are another “3 R’s.”  At this special moment, please permit me to briefly review them.

The first one is Recognizing – specifically, recognizing the good, hakaras hatov.  Its simple sense – gratitude – is something you graduates surely feel this evening – toward your parents, your teachers and your classmates, for all that they have given you.  But the term’s deeper meaning is to recognize – with a capital “R” – the good that is always present in our lives, all the things with which we are constantly blessed.  Because everything we have is a gift from Hashem.  We’re called Jews after Yehudah – so named by our foremother Leah because of her gratitude – hodo’oh – that Hashem had given her “more than her share” of sons.  We Jews are always to see what we have – whatever it may be – as “more than our share.” 

The larger world has a rather different ethic.  An advertisement recently asked me “Don’t you deserve a new Lexus?”  Well, no, I don’t particularly.  I’m not at all sure I even deserve my used Saturn with the manual roll-up windows either.  In fact, every morning when I open its door, I thank Hashem for granting it to me.  There is a contemporary social disease one might call eskumptmir-itis – from the Yiddish phrase “It’s coming to me.” We have to try mightily not to contract it.

As it happens, there is a vaccine for the disease of entitlement: the brochos we say throughout every day.  Each is an expression of hakaras hatov, a recognition of a gift, and of its Source. We do well to say them carefully, and think of what we are saying.

The second “R” is Relating – trying to feel what others are feeling, empathizing.  Here, too, a very different atmosphere envelops the world around us.  Maybe it’s different in Baltimore, but in New York the roads teach much about empathy – about how things are when there isn’t any. Obviously each of us cares most about himself – that’s why “Love your neighbor like yourself” takes “yourself” as the given – but the law of the jungle is not our law.  We are charged to try to see the world through the eyes of the other.

You’ve heard, no doubt, about the new father-to-be who paced the waiting room for hours while his wife was in labor, about how the process went very slowly and he became more and more agitated, until, an eternity later, the nurse finally came in to tell him his wife had delivered a little girl.

“Thank heaven!” he burst out.  “A girl!  She’ll never have to go through what I just did!”

You will meet people like that, I assure you – although, with Hashem’s help, not your future husbands – and they exemplify the self-centeredness we have to strive mightily to shun.

The third “R” is perhaps the most important, since it touches on a Torah mitzvah and concept of singular status:  Kiddush Hashem.  That imperative, of course, requires a Jew to die rather than commit certain aveiros, or any aveira in certain circumstances.  But we’re charged not only with dying, if necessary, al kiddush Hashem but also with living in the same state of sanctification.  This “R” is thus “Reflecting” – for, as frum Jews, our actions reflect not only on ourselves, our parents and teachers and schools, but on our Torah – in fact, on our Creator. 

Today, perhaps, more than ever.   Waiting at a bus stop once, I was approached by a young mother whose little boy was cowering behind her.  She approached me and asked politely if I might assure the child that I was not Osama bin Laden.  Turban, black hat, whatever, we do both have beards.  I managed to convince the young man who I wasn’t, but was struck by the realization that Mr. Bin Laden not only has the blood of countless innocents on his soul but the sin of desecrating Hashem’s name.  We must counter with the opposite.

What an incredible obligation – and what an incredible opportunity.

The Rambam, in his laws about Kiddush Hashem, adds that great Torah-scholars have a particular mandate to act in an exemplary way – for they are perceived as the most powerful reflections of the Torah.  I don’t think it’s a stretch to understand those words to apply today to all who are perceived to be reflections of Torah.  In a world like ours, all identifiably Jewish Jews are “great Torah scholars” regarding this halacha – and we must all endeavor to act the part.

The opportunities are ubiquitous.  Receiving change from a cashier, a smile – not to mention a “thank you” – leaves an impression.  On the road, where politeness is at a premium, driving politely leaves an impression.  The way we speak, the way we interact with others, all leave an impression.  We must leave the right one.

So, dear graduates, remember always, above all else, just who you are: reflections of Hashem on earth. 

Reflect well. 

And may your reflections be clear and brilliant, and help merit a fourth “R” – the ultimate Redemption, the ge’ula shleima, may it come speedily.

An American Inconsistency

(This is the original version of my assisted suicide piece, which I adapted and changed considerably for the Fox News one below this posting.)

When a 79-year-old man stopped his car and exited it last week in the middle of the Verrazzano Bridge connecting Brooklyn and Staten Island, he was determined to leap more than 200 feet into the New York Narrows’ waters below.

But a driver, an Orthodox Jewish man named Tuli Abraham, saw the would-be jumper, stopped his own car, and approached the older gentleman to see what was wrong. When the elderly man announced his intentions, Mr. Abraham grabbed him and held him back. The suicidal man proved quite strong, but, eventually, Mr. Abraham, along with other civilians who had stopped and several law enforcement personnel who had been summoned, managed to pull the man to safety.

Suicide had been prominent in the news mere weeks earlier, when, over the course of mere days, a young survivor of last year’s massacre at Marjory Stoneman Douglas High School in Parkland, Florida, took her own life, as did another student at the same school. And Jeremy Richman, the 49-year-old father of a six-year-old who was murdered in the 2012 Sandy Hook Elementary School shooting ended his life too.

In light of the fact that tens of thousands of Americans kill themselves each year, and that the suicide rate continues to rise, news reports of those deaths responsibly included public service addenda providing readers and viewers contact information for groups like the National Suicide Prevention Lifeline.

Inconsistent is somehow inadequate to describe American society’s attitude toward suicide.

Consider that the very day of Mr. Richman’s death, New Jersey’s legislature voted to allow doctors to help patients kill themselves. If the state’s governor, Phil Murphy, signs it into law as he has pledged to do, New Jersey will join several other states and European countries that already allow physician-assisted suicide. It seems almost inevitable that other deadly dominos will fall, with other states following those unfortunate examples.

So, which is it, America? Is suicide something we need to try to prevent, even if it means tackling a man on a bridge and supplying the public with suicide prevention hotlines? Or is it a simple and respectable expression of personal autonomy, a “human right” that must be accepted, even aided?

We believing Jews know well that life isn’t about “rights,” of course, but rather about right – in the sense of right and wrong. And that it is wrong to take an innocent life, even one’s own. We know, too, that an Olam Haba and a reckoning await us all, and that every moment of Olam Hazeh is invaluable, since only here on earth can we accomplish anything.

But even those who choose to not recognize those truths need to be consistent. What explains how otherwise reasonable people can insist on intervention, counselling and treatment when someone in pain and distress shows suicidal tendencies but, should the same person experience pain and distress while lying in a hospital bed, consider it proper to help the patient kill himself?

Proponents of physician-assisted suicide will respond that the laws they support, and that have been enacted, require the patient to have been medically judged to have less than six months to live. But life itself, after all, is terminal. What makes the arbitrary time span of five months and 29 days so significant, so – quite literally – life-changing?

The person lying in the hospital might be distraught and convinced that he will be better off leaving living to others. But it can’t be denied that even a tiny slice of time can be used to accomplish much. Even someone with no comprehension of the immense power of a mitzvah or teshuvah has to admit that a smile can be shared, a kind word spoken; an apology offered, or a regret confronted; thoughts can be thought and reconciliation with an alienated friend or relative achieved.

New Jersey and its fellow assisted-suicide-sanctioning states seem to feel that a diagnosis of “terminal” and mental anguish are sufficient for a life to be considered void of worth. But the truth is that no life is worthless and no moment of life without value.

Voters and those who represent them would do well to consider that instead of offering terminal patients – a label, again, that applies in a broad sense to us all – the means to end their lives, we should feel charged to convince them of what they can yet accomplish, whatever their medical, mental or physical states, in whatever months, days or even moments left them on this earth. We need to treat the man in the hospital bed no differently than we treat the man on the bridge.

© Hamodia 2019

Gripes and Grumbles

Like most people, I have all sorts of complaints about the world. That is to say, about some of the people in it.

Like those who don’t know how to disagree agreeably, and consider every holder of a different opinion to be a mortal enemy.

And drivers who don’t bother to signal before turning or changing lanes. Likewise, those who don’t know how to properly double-park. (You have to leave a car’s width plus a half-inch for others to pass.)

And, of course, phone marketers, “survey” takers and politicians who interrupt the dinnertime calm with chain-call messages. Ditto for worthy causes that do the same, and somehow think that shouting in Yiddish will make the recipients more receptive to their cause.

I also have a bimah-ful of gripes revolving around shul.

Talking during davening is wrong. Not just disturbing to others and not just impolite. Wrong. Ditto for literally throwing tzedakah literature in front of people trying to daven. Double-ditto for those who don’t bother to turn off their phones before entering a mikdash me’at, treating it more like a shuk me’at.

The Sdei Chemed (Maareches Beis Haknesses, 21) cites the Magen Avraham and Chasam Sofer to the effect that any behavior considered disrespectful in a society’s non-Jewish houses of worship becomes, as a result, forbidden in Jewish shuls.

Maybe there are churches or mosques where congregants “warm up” for services by discussing business or sports or the stock market.Or who take the opportunity of a pause to schmooze or share jokes. But I wonder.

I have never had aspirations to being a shul Rav. My esteemed and much-missed father, a”h, was one, and watching him over the half-century of his exemplary service to his kehillah disabused me of any desire to undertake the myriad responsibilities that he shouldered so well. Even were I qualified for such a role, I don’t think I would be able to live up to his example.

And it’s probably a brachah for the world that I chose a different path, first, as a mechanech; then, as an organizational representative and writer. Because were I responsible for a shul, I would be a terror.

Not only would davening be stopped at the slightest hint of a conversation, but I would disallow chazzanus at the amud. Spirited, heartfelt singing would be fine, even invited. But “performances” would be canceled mid-concert. The tefillos, sir, just the tefillos.

If a cellphone rang – or beeped or pinged or chirped or played a merry tune – in shul, its owner would be presented with a pre-printed notice advising him that a first offense had been noted and that a second one would result in the gabbai’s confiscation of the offending device and its smashing with the special hammer kept under the bimah for that purpose.

Oh, yes, I would be a fearsome clergyman.

What is more, I would lock the doors once davening began.

Yes, lock them, so that no one could enter.

Some people approach tefillah as something they are supposed to do, which, of course, they are. But without much thought to concentrating on the meaning of what they are saying. There’s a reason for the expression “to daven uhp” something – i.e. to just read it quickly and perfunctorily.

Others are determined to maintain kavanah for every word of tefillah. They are usually the ones who are still davening Shemoneh Esrei when chazaras hashatz is almost completed.

Then there are the rest of us, who are still working on trying to keep our minds focused on what we are saying. Unlike the accomplished group, we are all too easily disturbed in our efforts by latecomers who open and close doors, and plod around noisily.

And so, the doors would be locked. And mispallelim would learn that arriving on time is important.

And, finally, to offend anyone I haven’t yet alienated, I would abolish all candymen. I might be persuaded to permit them to quietly place a (preferably low-sugar) treat in front of a child who’s davening nicely. But to just play Pied Piper, attracting a crowd of kids with a bag of tooth-rotting, empty calorie-laden goodies… not on my watch!

I realize that my dream of a shul is someone else’s nightmare, that the world is probably best off for the fact that I didn’t try to become a shul Rav.

Probably…

Yes, I know the causes of my gripes aren’t likely to disappear.

But could people at least start signaling before changing lanes?

The Emphasis on Empathy

I suppose it’s not so strange that I put the two experiences together. They happened a mere day apart and both involved buses.

The first incident astounded me. As I stood in a line of people waiting to board an end-of-the-day bus at the Staten Island Ferry terminal, a young woman just walked up to the front of the line and, with nary a glance at anyone behind her, boarded the bus. Had she joined the back of the line as is normative, the seat she graced with her occupancy would have gone to someone else, perhaps one of the senior citizens who ended up standing during the ride.

The lady had no obvious physical impairment. She just seemed oblivious to the fact that other people occupy the universe, some even in her immediate vicinity.

I think I know what the line-cutter would have answered if asked how she would like it if someone stepped in a line in front of her. She would explain that, yes, she would have been angry, but that isn’t what happened; it was she who was entering the line out of turn, not someone else.

Empathy-impairment is an impressive thing.

We don’t start life off empathetic. Rav Yaakov Weinberg, zt”l, once mused aloud to me that there’s nothing more self-centered than a baby, and that’s probably why Hashem makes them so endearing; otherwise we might not properly care for the selfish little people.

But who can – emphasis on “can” – grow into empathic adults.

I remember how, as a little boy, I tested a magnifying glass I had received by focusing sunlight with it onto pieces of paper, charring them. And how I then – ugh – “graduated” to weaponizing my educational tool by using it to incinerate ants. Some experts claim that killing insects as a child presages the eventual emergence of a serial killer. So far, though, baruch Hashem, I haven’t much felt the urge to murder; when I have, have managed to overcome it.

In fact, today, when an insect finds its way into my home, I capture the invader and escort him or her safely to the great outdoors. (All right, not mosquitos; but they are aggressors.)

After all, how would I like it if someone chose to squash or flush me away?

Being concerned with the wellbeing of an insect is a low rung on the empathy ladder. The ultimate and most powerful concern for “the other” is for other people.

Which brings me to the second bus incident. The next morning, I boarded a mass transit vehicle that takes a rather convoluted route. It was the first time, apparently, that the driver had driven the route and before any passenger could stop him, he turned into a one-way street. A dead end.

It was a narrow street, and the “three-way turn” that the driver of a car might execute wasn’t an option. Backing up would be tricky.

I waited for the expected New York reaction, passengers’ grumbling and shouting of insults at the hapless driver. A pleasant surprise, though, awaited me. Not only didn’t my fellow travelers vent their collective spleen, many of them rushed to reassure the mortified man at the wheel not to feel badly. One man offered to stand behind the bus and direct its delicate backing out of the cul de sac, which was successful.

Everyone knew we would miss the ferry we had hoped to catch that morning. But everyone just cheered the driver, who was clearly happy with his lot – of passengers. Who, instead of being self-centered, demonstrated empathy.

People gauge gadlus ha’adam by many things. But the most essential marker of human growth may well be how far one has progressed from the selfishness that defines us at birth toward true empathy. The severely empathy-impaired, like the young woman on the bus line (and psychopaths), are essentially infants.

For members of Klal Yisrael, the import of empathy is evident in Rabi Akiva’s statement (quoted by Rashi) that the passuk “Love your fellow as yourself” (Vayikra, 19:18) is a “great principle of the Torah.” And in Hillel’s response to the man who insisted on learning the entire Torah on one foot: “What is hateful to you do not do to your fellow. That is the whole Torah; the rest is the explanation; go and study it” (Shabbos, 31a).

But dedication to an “other” is, in its most sublime form, expressed as selfless dedication to the Other. We are born selfish; and meant to strive toward concern for our fellows, but, ultimately, for the will of Hashem.

© 2019 Hamodia