Monday, November 24, 2003

Religion-Baiting in Our Courts

Racial profiling is unacceptable because it stereotypes and demeans people for no reason other than that they share racial or ethnic characteristics. It seems that at least in New York courtrooms, it’s acceptable to profile Chasidic Jews and to assign to them by virtue of this identification alone certain negative attributes.

Thanks to the first-rate reporting of William Glaberson of the New York Times, we know that city attorneys in the Gidone Busch wrongful death case engaged in demagoguery and worse as they attempted to undermine the testimony of religious Jewish eyewitnesses who said under oath that the police had acted wrongfully when they mowed down Busch in a fusillade of bullets on a Borough Park street.

It’s a near certainty that without the inappropriate defense tactics, the jury would have ruled against the Busch family, for jurors are extremely hesitant to find against the police. They may have decided that they could not second-guess the police who at the time that they fired may have felt threatened, even if they should have acted with far less force.

City attorneys suggested in their questioning that those who testified in support of the lawsuit had, in effect, lied, not because they had anything to gain by lying but, as Chasidim, they would readily depart from the truth in order to help one of their own. Putting aside such pertinent considerations as 1) Busch was not Chasidic, 2) the witnesses did not know him or his family, 3) not all of them were Chasidim, 4) immediately after the shooting, eyewitnesses reported that the police fired without sufficient cause and 5) generally, Chasidim are respectful, even fearful, of police authority, we should be repelled by the profiling of religious Jews. The witnesses were labeled as unreliable not because there was any evidence impeaching what they said or because they had given a different version previously. They were untrustworthy on account of their being religious Jews.

This is odious stuff, although I am confident that as bigots always do, city attorneys celebrated their famous victory.

Sadly, what happened in Busch has antecedents. The trial of Shlomo Helbrams who was accused and I believe wrongfully convicted of kidnapping Shai Fima was permeated with Chasidic-baiting as the zealous prosecutor who was unrestrained by the trial judge inflamed the jury against religious Jews. Here is a remarkable tidbit from the summation by the prosecutor as he explained why he had not sought the testimony of Michael Apter, a Chasid who had knowledge of the alleged crime:

“And they want to know, the defense wants to know, why we didn’t call Michael Apter? Remember the term ‘mesirah’? Boy, if anybody was to practice mesirah, it would have been Michael Apter.”

As erroneously defined by the prosecutor, mesirah means, “It’s wrong for one Jew to say anything that would get another Jew into trouble.” We can ignore that bit of misinformation for the more breathtaking issue is the prosecutor telling a jury that he did not call a possible witness because the person is a religious Jew who would be sure to lie. In effect, the decision not to seek this testimony is employed as an argument against a person accused of a crime. This should have been a reversible error.

In a 1993 case called Malek v. Federal Insurance Company, the U.S. Court of Appeals for the Second Circuit overturned a jury’s finding in favor of an insurance company and against the Chasidic plaintiff because the trial judge had allowed the company’s lawyer to impeach the plaintiff’s accountant on account of his religious beliefs and affiliations. During cross examination, the accountant was asked whether his firm’s lead accountant is “a member of the Hassidic community” and also “do you act as a CPA for other members of the Hassidic community?”

In reversing, the Court of Appeals wrote, “because it is apparent from these questions that defense counsel attempted to show that Schneck’s [the accountant] character for truthfulness was affected by his religious beliefs and that such questioning may have prejudiced the Maleks, the District Court erred in permitting the defendants to pursue this line of questioning… We are particularly troubled about this line of questioning, especially where the impeached witness’ religious affiliation is the same as that of the plaintiffs.”

Regrettably, this was a solitary decision against religious profiling and Chasidic-baiting. More often, what shouldn’t be tolerated is being tolerated, as in the celebrated Skwere prosecution where in addition to greatly distorting the amount of financial misappropriation, the prosecutors sought in court papers to demonize a community, suggesting that the poverty of its members and modest ways resulted in a criminal conspiracy.

The escalating juridical excesses against Chasidim may be viewed as the inevitable outcome of how litigation is conducted. In civil cases, each side is expected to do it can to prevail and the heck with fairness and truth. In criminal cases, prosecutors rarely regard themselves any longer as public servants whose primary obligation is to seek justice. They are out to get their prey and nearly every tactic can be used, including the already familiar device of piling on extraneous but severe additional charges in the hope, often realized, that cowed defendants will cop a plea lest they run the risk of long sentences. This isn’t justice. It’s an injustice and the practice is spreading cancer-like because too many prosecutors have learned that they can act without restraint.

Whatever excuses can be offered on behalf of our adversary system, it remains that there is an important difference in the scale of wrongdoing between harming a single litigant or defendant and impugning an entire religious or ethnic group. Religion-baiting has no place in our courts, no more than would racial-baiting. We need to confront those who invoke group hatred in order to win their cases. If we are complacent about what happened in Busch, we can be pretty certain that more of the same awaits us.