Shoftim: Everyone is innocent until proven guilty

Imagine the scene: A beautiful afternoon, with a breeze blowing a group of children and teenagers’ kites in the wind. The sound of their laughter carries across the sand. An innocent scene, a beautiful afternoon on the coast.

Only this is not the Long Island Sound; it’s the Gaza Strip. And this is no innocent scene; the kites these children fly are laden with petrol bombs, aimed at their Jewish cousins in playgrounds a few kilometers away. 

This is the new generation of “RPG kids,” and like the seven- and eight-year-old Lebanese children trained by the PLO to fire RPG anti-tank weapons at Israeli tanks in Lebanon in the 1980’s, they are soldiers in the new children’s army of Hamas.

How are our soldiers, armed with tanks and sniper rifles, meant to respond? 

This week we read the portion of Shoftim, the practical application of last week’s vision in Re’eh. If last week we spoke of choosing the path of blessing, this week we read of the need for judges and police. If last week we spoke of a society of peace and morality and the dangers of false prophecy, this week we read of the need for a monarchial system that can enforce law and order and lead us in our political decisions as well as on the battlefield.

In the midst of all this, the Torah (Devarim 19:15-21) teaches us the need for a minimum of two witnesses in criminal cases, and describes a fascinating case:

Two witnesses testify someone has committed a crime. Upon interrogation, they are believed and the criminal is apprehended. If a second set of witnesses come forward and prove that the first are liars, they are believed, and the first set of witnesses are now the criminals. Their punishment is whatever would have befallen the target of their false testimony.

This is a novel, even illogical idea. By what logic should we accept the second witnesses over the first? Perhaps it is they who are lying! Indeed, Rav Chisda posits (Baba Batra 31b) that we should simply invalidate both! What are we meant to understand from the fact that the Torah prefers the testimony of the second set of witnesses?

Perhaps the Torah is trying to tell us how much we should want to find a person innocent.

Think about it: to find someone guilty of murder and liable for a death sentence is nearly impossible in Jewish law. The witnesses must see the crime being committed, must see each other, must issue a very specific warning to the sinner immediately prior to the action.

Tradition teaches us (Mishnah Makkot 1:10) that “a Sanhedrin [that] puts a man to death once in seven (and according to Rav Elazar ben Azaria once in 70) years is considered a cruel court.” 

If a Sanhedrin issued a unanimous guilty verdict, the defendant is automatically exonerated. It is assumed they must not have reviewed the case enough, or that each judge’s ruling may have been influenced by the verdict of the previous one (Maimonides Hilchot Sanhedrin 9:1).

Even in the context of a terrible offense like murder, we should want to see the person as innocent. Certainly, we should seek every avenue to avoid meting out punishment. To quote the English jurist William Blackstone, “Better that ten guilty persons escape than that one innocent suffer.”

And yet the Torah adds three words here that are somewhat unique. In describing how the first set of witnesses, for having attempted to frame a person for murder, should be put to death as they would have seen done to the person they testified against, the pasuk says “Velo tachos einecha,” your eye shall not pity them (Devarim 19:21).

On the one hand, we should want to find a person innocent. We should not want to mete out punishment. But when the moral fabric of society and effective rule of law require a harsh judgment, pity can be dangerous.

Perhaps this is the true challenge for a Jewish soldier in a Jewish army. We should want to see children playing with kites as innocents. We should want the sounds of their laughter to warm our hearts.

And yet: “Velo tachos einecha,” your eye shall not pity them.

We have a responsibility to know our priorities, to see the kites for the terrible tools of terrorism that Hamas has made them to be. And make no mistake about it: incendiary kites exploding in Israel’s towns are as much an act of terrorism as a suicide bombing. The difference is only in degree.

In Shoftim, we see the Torah’s recipe for maintaining the soul of morality while conquering the land of Israel and managing the practical challenges of building a society of law. Three thousand years later, we struggle with these same challenges.

We dare not ignore the terrorism that plagues our borders, but we must be careful lest we stop seeing its perpetrators as human beings, even as they remain our enemies. We must see the kites as weapons of terror while seeing the children who fly them as children.

To paraphrase Golda Meir: We will finally know peace when they love their children more than they hate ours.