Thursday, December 22, 2011

Chanukah 2011

So what’s the first thing you think of when someone mentions Chanukah? I suppose most of us would instantly conjure up a mental snapshot of a family—perhaps even our own family—gathered around the menorah, lighting the candles, and singing Maoz Tzur. Some of us might think first of the miracle of Chanukah, of the old story we all know about the tiny cruse of oil that should only have held enough oil for one single day but out of which miraculously poured eight times that much…so that the great menorah in the almost-inmost sanctum of our holy Temple could not only be relit, but would remain lighted until fresh oil could be prepared under the watchful supervision of the High Priest of Israel. Still others will think of the more gustatory trappings of the holiday: chocolate Chanukah gelt, fried latkes, deep-fried jelly doughnuts, or some other set of semi-poisonous delights we all seem to be entirely able to consuming without an ounce of guilt (perhaps I’m saying more here about myself than I meant to) for the course of eight long, cholesterol-laden days of family togetherness.

Myself, I try to spend at least some time in the course of the holiday thinking about the shikkutz m’shomeim. The what? For something that rests at the very heart of the holiday, it’s odd how few people even know about the riddle of what the shikkutz m’shomeim actually was—or even who have heard of it. But the shikkutz is at the very center of the story we tell, or at least it should be…and if its precise identity remains a mystery none has yet solved in a universally convincing way, then the riddle itself constitutes a puzzle we have lost interest in solving only to our own detriment. I’m guessing most of my readers won’t ever have heard of it. In some books it appears in its ten-dollar English-language version as the “abomination of desolation.” Does that help? Some translations offer the even less decipherable “desolating sacrilege.” Is that better? I didn’t think so. But the shikkutz m’shomeim is not only something you should know about, but it’s something I think we could all profit from discussing seriously.

The historical sources for our Chanukah festival aren’t that many. And they aren’t in agreement about many minor details of the story and a handful of truly important ones. There is the ancient book called the First Book of the Maccabees, written in Hebrew towards the end of the second century BCE by a Jewish author in Maccabean Jerusalem who wished to record the events that led to Jewish independence from the Seleucid empire (the sort-of-Greek empire from which the Maccabees wrested, if not de jure independence, than at least the de facto right to behave formally as an independent state) in the decades immediately prior to his own day. There’s the work confusingly called the Second Book of Maccabees—confusingly because it has no literary or historical relationship to the First Book, from which it is an entirely distinct work—which was written in Greek, probably in Alexandria, in the same time frame as First Maccabees, but which is itself only a one-volume summary of a much longer work in five volumes penned by one Jason of Cyrene (in today’s Libya) recounting the history of the Maccabees from the perspective of the Greek-speaking diaspora. (The Jews of Egypt and Libya spoke Greek in those days; it was their translation of the Bible into Greek, in fact, that today is the oldest still-extant full translation of Scripture into any language at all.) Josephus, the first century Jewish historian, also took a crack at the Maccabees, discussing their story in detail in his Antiquity of the Jews and drawing, apparently, on many no-longer-extant sources. And then there’s the Book of Daniel, the sole source for the story that actually is in the Bible.

The Book of Daniel is a complicated work that was clearly put together from several anterior sources, but which almost definitely reached its final form—the form in which we can find it in any Bible—in Maccabean Jerusalem. The reasons scholars think that would take us too far afield here for me to discuss in detail, but the short version is that the last few chapters of the book, written in obscure, gnomic Aramaic that only a true literary or historical sleuth could love, appear to be discussing not the story of Daniel, the personality featured in the first part of the book who lived centuries earlier at all, but rather the events of the Maccabean revolt itself. And at the center of that account, as well as the account in First Maccabees, is the shikkutz m’shomeim that is what I want to write about today.

At the heart of all these stories is the notion that the Temple was desecrated and then restored to its original state of unsullied purity through the brave actions of the Maccabees, itself a term of obscure origin that came to denote the five brothers who led the revolt against the Seleucid emperor Antiochus IV. (Did you know, by the way, that there are reliable portraits of Antiochus? He’s the only person in the Chanukah story to have left behind pictures of himself, mostly on coins he had minted with his own image stamped on them, on of which is featured above.) That part, we all know: some version of the purification and rededication of the Temple is at the heart of every version of the Chanukah story. Indeed, the name of the holiday itself means “Dedication” (in this sense, “Rededication”) and references that specific event. But what exactly was going on in the Temple during the years leading up to its recapture, repurification, and rededication?

Let’s listen to the author of the First Book of Maccabees, describing the edicts set in place by the king to buttress those Jews who wanted to “reform” Judaism by turning it into a Hellenistic cult:
The king sent letters by messengers to Jerusalem and the cities of Judah ordering that the citizenry should follow strange new laws. He forbid the sacrifice of traditional burnt offerings and libations in the Temple, and demanded that the Jews profane the Sabbaths and festivals. Furthermore, he ordered that the sanctuary be polluted, and that there be set up altars, sacred groves, and special chapels devoted to the worship of Greek idols, and that in the Temple they sacrifice swine's flesh, and unclean beasts. Moreover, the king commanded that the Jews leave their sons uncircumcised, and make their souls abominable with all manner of uncleanness and profanation to the end that they might forget the law, and abandon its ordinances. And whosoever would not do according to the commandment of the king, the king further said, he should die. To that end, the king appointed overseers over all the people, commanding the cities of Judah to worship only in accordance with these new regulations. As a result, many evils were perpetrated in the land…and then, on the fifteenth day of the month of Kislev, in the one hundred and forty and fifth year (of the Seleucid empire), he had the abomination of desolation set upon the altar, and altars built dedicated to the Greek gods throughout the cities of Judah on every side. They burnt idolatrous incense at the doors of their houses, and in the streets. And when they had rent in pieces the books of the law which they found, they burnt them with fire.

That’s pretty strong stuff. But what exactly was this “abomination of desolation” that was set up upon the altar itself in the Temple? That, the author forbears to say. The Book of Daniel is no clearer. Cast here as a prediction rather than as a historical account, the author imagines old Daniel looking centuries in the future and seeing his, the author’s own day: “They (in context, the armies of an alien, yet unnamed king) shall profane the sanctuary…and take away the daily sacrifice, and they shall set up the abomination of desolation in that place. Furthermore shall (this king) corrupt by flatteries those who do wickedly against the covenant; but the people who know their God shall be strong, and eventually they shall take action….” But what actually was it? That neither author wishes to say.

Some scholars, relying on an old rabbinic tradition that permits mentioning the names of idols only when those names are deformed in some clever way so as simultaneously to insult the gods they are imagined to represent, that the Hebrew shikkutz m’shomeim was meant to reference Zeus, whose name in Aramaic was sometimes Baal Shamayim, “the Baal of heaven.” The word shikkutz would then be an insulting reference to Baal, just as the term has survived in the vulgar speech of some North American Jews in a slightly bowdlerized version not used in decent discourse. And the m’shomeim part would simply be a pun on Shamayim, not referencing the god as being “of Heaven,” but as being destructive and repulsive. So okay, it’s an insult…but the question of what the thing itself actually was remains unanswered. Some imagine it to have been a statue of Zeus that was set up atop the altar so that every animal sacrificed there would be offered up beneath the stony gaze of the chief of the Greek pantheon. Other scholars have imagined it to be a meteor of some sort, or to reference the pigs themselves that were now to be offered up in the Temple as a sign that the Jews had signed on to one of the cardinal elements of Hellenistic philosophy: that, there being only one God, it would be a sign of brotherhood for all to worship God in his most elevated and sophisticated manifestation as mighty Zeus, the name given him by the most elevated and sophisticated of his followers, the Greeks themselves.

The whole miracle story featuring the tiny cruse of oil appears first in the Talmud and has no real antecedent in any of these contemporary, or near contemporary sources, all of which understand the great accomplishment of the Maccabees to have been the removal of the shikkutz from the Temple. (There’s a different story featuring a miracle regarding Temple oil at the beginning of the Second Book of Maccabees, but it’s entirely different from the story we all know from the Talmud.) Whether it was an actual statue, or some other thing that so revolted the ancients who knew exactly what it was that they could not bring themselves to say its name aloud or to describe it other than cryptically, who knows? But in the contemplation of that riddle lies a lesson for us all.

What I get from this whole story about the shikkutz m’shomeim is that even the most sacred precincts can have introduced into them items that turn them from places of pious worship to places of grotesque depravity. The place, the sanctum, the sanctuary, therefore, is only space. Holy space, perhaps…but only when holy things happen there. To suppose, therefore, that the mere existence of a sanctuary is enough to guarantee that all that unfolds there is by definition sacred work…that is, if anything, the precise opposite of the lesson these ancient sources gather (at least in my own mind) at this time of year to remind us. For a community to be worthy of the designation of k’hillah k’doshah, it needs to do holy things, to do holy work, to seek to know God not merely by existing in some room designated as holy space, but to take to heart the ideals of faith that are preached in that place…and then to act on those ideals to nudge the world even just slightly close to the messianic moment that will herald the redemption of humanity. The Temple retained its sanctity, of course, even when the shikkutz was in place. But it was a dormant value in those dark days, not something that existed actively but only passively within the folds both of its history and its destiny. That could be a satisfying thought…but the Maccabees didn’t think it was enough and neither should we. To be worthy of being called a “holy community,” a k’hillah k’doshah, its members must further God’s work on earth.

Thursday, December 15, 2011

Adventures in Facebookland

I don’t have a Facebook page. For a long time, I considered that a mere detail, something to be owned up to if and when someone else asked about it, but otherwise one tiny item on a very long list of things I don’t have one of. Some of the things on that list, mind you, surprise even me, at least a little. I like to skate, but I don’t own a pair of ice skates. I like Mozart, but I don’t own a boxed set of the piano concertos. (When necessary, I borrow the cantor’s.) I am entering my second decade as editor of the quarterly journal, Conservative Judaism, but I don’t own a scanner or a fax machine. It never seemed odd to me, however, that I didn’t have a Facebook page. Joan has one, but she almost never goes there to see who’s posted what on her wall or formally to ignore who has invited her to be his or her friend. (She prefers, I believe, passively to ignore them by not making herself aware of their invitations in the first place.) I know what Facebook is, more or less. From time to time, I open Joan’s page to see what’s new with whom (and, of course, to spy on my children, although it’s hardly spying if everybody else in the universe can also see what’s on their pages), but I’ve never been drawn to the experience especially and certainly nowhere near arrestingly enough to want personally to dive into those waters. Maybe it’s an age thing: Facebook users in my age category constitute a mere 5% of the total number of users, whereas more than three-quarters are between the ages of 13 and 34.

All that being the case, you can imagine my response when I noted in the paper this week that something like two-thirds of the entire population of the United States have Facebook pages. Talk about being left behind! And those 200,000,000 people are only a quarter of the world-wide total of 800,000,000 users. That’s a lot of faces! And those, so the Facebook people themselves, are only active users. People who opened up pages once but then never visited them again are not counted. Nor are people who visit so infrequently as not to show up as “real” users at all in their statistics. It’s a big number. Of the countries of the world, only India and China have larger populations than Facebookland. The third largest country in the world in terms of population, our own, has fewer than half the number of citizens than Facebook has people signed up. The world has more people signed up for Facebook than all the countries of Europe together have citizens. (By comparison, Twitter has a mere 380 million users, Linked-In a mere 100 million.) You get the picture. A big number. A lot of people. If Facebook were a country, it wouldn’t be Liechtenstein.

And also a lot of money. Facebook is the third largest web-based business in the United States, right behind Google and Amazon. Facebook’s value was estimated a year ago at about $14 billion dollars. And now they’re making plans to go public, and hoping to raise about $10 billion in the process. No matter how you measure it, that’s a lot of money for a company that was only launched in February of 2004, not a full eight years ago, and which (and, yes, I know how old this makes me sound) doesn’t actually make anything at all. Except friendships. Sort of.

And that brings me to the topic I’d like to raise this week for discussion. Friendship, for all it feels like a basic feature of human life, is an elusive thing both to define and to cultivate. What is it exactly? We all have friends, obviously. And we understand that being someone’s friend is qualitatively different than being someone’s relative (or someone’s employee or neighbor or love interest or business partner). But what are the essential traits that distinguish friendship from other kinds of relationships? Has the concept evolved naturally over the millennia that human beings have been befriending each other? If so, then is the great innovation brought by Facebook to its four-fifths of a billion users—the notion that friendships have no natural course, that friendships are only dormant but never actually defunct and can always be resurrected, that one’s friends can always be located and (since they’ve already—and apparently permanently—been befriended) friended? Or maybe the right term in such a case should be re-friended, in which usage the re- (just like in refried beans) hardly means anything at all since they were, so the fantasy, friends all along anyway.

For the nation that gave Facebook to the world, Americans themselves are actually not very good at being friends. There was a study published a few years ago in the American Sociological Review (a journal published by the American Sociological Association), according to which Americans on the average have fewer closer friends today than ever before. According to the study, a full 25% of Americans have no close friends at all. And the number of close friendships people who do have such relationships reported having dropped by half from 4 to 2 in the twenty-one years from 1985 to 2006. Moreover, even the quality of the friendships we do maintain has dropped over the years. C.S. Lewis, one of the few Christian apologist-authors whose work for some reason I don’t find off-putting, wrote this in his book, The Four Loves:

To the ancients, friendship seemed the happiest and most fully human of all loves; the crown of life and the school of virtue. The modern world, in comparison, ignores it. We admit of course that besides a wife and family a man needs a few “friends.” But the very tone of the admission, and the sort of acquaintanceships which those who make it would describe as 'friendships', show clearly that what they are talking about has very little to do with that philía which Aristotle classified among the virtues or that amicitia on which Cicero wrote a book.

I know what he means. I read Cicero’s book, called On Friendship, when I was in graduate school and was very impressed both by the clarity of his prose and, more to the point, by the picture of friendship he draws in the book. (Speaking of Cicero, have you all read the first two volumes in Robert Harris’s terrific, so-far-unfinished, trilogy about Rome in the age of Cicero? The first two books, Imperium and Conspirata, were two of the best pieces of historical fiction—and two of the best lawyer novels, to boot—I can recall reading in years. I loved them both and so will you! The third book is coming soon.) But I digress…and the portrait Cicero draws of friendship in his book is stunning. Friendship, he writes, improves the world because friends have the unique capability of making each other virtuous, of bringing each other’s nascent sense of virtue to the surface and to the fore. He writes with the deepest passion about friendship and the ways it provides the only truly suitable background against which people might conduct their family life in the foreground with dignity and purpose. Life, he suggests, without friendship is mere existence. I vaguely recalled this quote, which I managed to find on-line and which I think sums the concept up admirably: “All excellence is rare,” Cicero wrote, “and that moral excellence which makes for true friendship is as rare as any. On the other hand, it would be unreasonable and presumptuous for people to expect to find in their friends qualities which they themselves can never really hope to attain, or to demand from their friends an indulgence which they are not prepared themselves to offer. Friendship was given to us to be an incentive to virtue, and not as an indulgence to vice or to mediocrity! Although solitary virtue cannot scale the peaks of greatness, one may yet hope to do so with the loyal help of a comrade. And comradeship of this kind includes within it all that human beings most desire.”

Having a true friend is thus to be understood as one of life’s great boons. It is the platform on which greatness, so Cicero, rests, the springboard to the kind of virtuous living to which we all aspire but which none of us can quite attain on his or her own. More than love itself—another of life’s necessities, but one that speaks to the human need for passion and pleasure than specifically for virtue—friendship creates the context for life lived large and lived well.

And now we have the Facebook version, the kind that makes it possible not to need to spend a lifetime cultivating true friendship with two or three other souls one chooses as one’s intimates in the course of shared decades of moral and intellectual growth, but instead to “friend” thousands of people almost at once. Obviously, no one could ever have that many friends by following the old-fashioned model, but that is the beauty of the new concept: no matter how long ago you graduated from elementary school, those pals you played in the schoolyard with are still there, still out there somewhere in the ether, still available to you if only you choose to friend them and they you. That you have no real contact with them doesn’t matter. That you don’t really have any emotional ties to them is deemed irrelevant. The maximum number of friends you can theoretically have on Facebook is 5,000. But there are apparently ways to get around that restriction and there are reportedly people out there with hundreds of thousands of friends. I hope they don’t all expect birthday cards!

I believe that friendships, like most things, have natural life spans. The boys from my cabin at Camp Oakdale were true friends of mine when I was nine, ten, and eleven years old. (The camp closed after that and I, as must even eleven–year-olds under the right circumstances, moved on.) I don’t miss them. I suppose I’m mildly curious about where they are today, about what became of them. But the truth is that—to speak honestly—they’re just names from my past, albeit ones that evoke very pleasant memories. We’re not friends. Nor am I friends with the guys from my Hebrew School car pool. Nor with the boys with whom I shared my mercifully brief career in the Little League. Nor with all sorts of people I knew once, whose company I enjoyed, whom I thought of as my friends…and whom I haven’t seen in decades. I wish them well! But I don’t want to be friended by people who aren’t actually my friends. And I don’t need to be friended by people who actually are my friends. So who needs the whole thing? And that is why I don’t have a Facebook page!

I said I didn’t want a Kindle and now it’s my favorite toy. I said I didn’t want an iPhone and ditto. (I heard that! They’re both my favorites.) But I really don’t want a presence on Facebook. I certainly don’t want five thousand Facebook friends. I can barely keep up with the real ones I actually do have!

Thursday, December 8, 2011

Going to Elmont

Last week, I wrote about memory. And this week I propose to write to you about time. What is this, an undergraduate course in Too Big Ideas? (I suspect that question probably has more to do with the way I remember my undergraduate experience—for some reason I to this day cannot contemplate the nature of Being without reaching up to see if my mutton chops have grown back—than with anything else, but I want to write this week about time, not memory!) So let me start by asking out loud some questions most of us really haven’t asked ourselves since we really were back in college. What actually is time? Does it really exist? Or is it just something humanity has made up to help explain the universe, to impose order on events that would otherwise exist as discrete spheres of experience related to each other only by content and not by sequence or temporal proximity. Those really are questions only an undergraduate could love. But I had an experience last week that left me feeling outside time in a way that I’ve only occasionally experienced. And that’s what I’d like to write this week.

Regular worshipers at Shelter Rock have heard me say from the bimah many times, especially as we prepare for Yizkor, that time—the concept of “time” itself—is just a midrash. By that, I generally mean that we need to remember that the boundaries between time-past and time-present are more porous than we generally allow ourselves to imagine, that the historically dead are not necessarily the experientially dead, and that the ghosts are no less real for being unreal. I teach that lesson because it truly is reflective of my own experience of the world and the way I feel I have successfully—or at least semi-successfully—brought the evidence of my own perceptive consciousness to bear in deciphering the universe. The reality is that I miss my parents all the time. But the reality is also that they’re not quite as gone as I recall once thinking they were going to be. The French word for ghost, revenant, literally means “one who has returned.” I like that. The English “ghost,” is related to the German word Geist, meaning “spirit.” I like that less. And, in fact, the ghosts I’ve experienced in my life are far less relatable-to as spiritual constructs or as otherworldly metaphors than simply as revenants, as people who, turning out to be less done with the world than they (and their people) may well once have thought, come back for a brief—sometimes the briefest—return engagement.

One of the mysteries of my life was where my grandparents were buried. Both my grandfathers died before I was born, but I knew both my grandmothers. My father’s mother, though, died when I was only four years old. I remember her a little—her voice mostly, a little bit how her skin felt, plus some olfactory memory I can never quite pin down that must be related to some kind of perfume she liked to wear or to some kind of cooking or baking I associate with her for some by-now-long-forgotten reason—but not really much. But my other grandmother, my mother’s mother, I knew well. She lived in Bensonhurst. I’ve written before about watching the Verrazano Bridge being built in the course of innumerable Sunday visits to her home on 84th Street in 1963 and 1964. She died, regretfully, just before my bar mitzvah. That whole incident, I remember clearly. To say her death in February overshadowed my bar mitzvah in May is not exactly correct, but it’s not exactly incorrect either. (I only ran into her ghost years later, though…and at my actual simchah she was as spectrally missing as she was physically absent.) So she died that February during a teamsters’ strike and was brought to her grave in a rented station wagon rather than a proper hearse. (Isn’t it funny how you really do remember these things over the years, almost as though they really mattered!) But where that grave was, I had no idea. The funeral was somewhere in Brooklyn. The burial was somewhere else…but where that somewhere was I wouldn’t have known. How could I have? I was an upset little boy being schlepped along by events that any child would find at least mostly unfathomable. Nor did I ever undertake later on to find out exactly where that cemetery was.

If my mother visited her parents’ graves, I never heard about it. Or I never thought I did. (See below.) Probably she would have gone from time to time, but I was certainly never taken along. (My parents were a bit odd in that regard: a big part of their parenting concept was shielding me not only from death, but even from the reality of disease. My parents, both of them, even attempted—in this only semi-successfully—to shield me from the details surrounding my mother’s final illness. But I’ll write about that another time. Or maybe not, given how painful that whole sequence of events was for me then and still, at least in some attenuated way, is for me today even just to recall.) And then she died. If my father ever visited my mother’s parents’ graves after he became a widower, I never heard about it. Maybe he did. Maybe not. And then Joan and I left New York and were away for almost twenty years. Eventually, we came back. But by then whatever information my father had taken whatever information he had to impart on the matter to his own grave, yehi zikhro varukh.

And so I was left not only not knowing where my own grandparents were buried but also having no one to ask. My mother’s sister predeceased her, as did her brother-in-law. She herself had no contact with her father’s family, just as I eventually lost contact with hers. As a result, I knew no one at all who might have remembered. Plus, obviously, in the meantime a long time had passed. My grandfather died in 1948, my grandmother in 1966. We came back to New York in 2002. Even if I somehow was successfully somehow in resurrecting some sort of relationship with one of my mother’s first or second cousins—who’s to say that they would have remembered where my grandparents were buried? And how exactly was I going to find them anyway? Wisely or unwisely, I let the matter go.

And then, a few weeks ago, I found myself rooting around for some reason in my father’s papers and found my grandmother’s death certificate. (Why do I remember that my parents had tickets for the Broadway production of Peter Weiss’ play, Marat/Sade, for the night my grandmother died and that they never did get to see the play? Is that important?) I hadn’t known my father even had a copy, let alone that I did. I certainly hadn’t ever seen it or read it. But I read it once I found it…and found out all sorts of interesting things. For one thing, I learned what my great-grandmother’s maiden name was. (My grandmother’s mother was born Jennie Mehlman). But far more arresting was the detail at the bottom of the form that noted that my grandmother’s burial was to take place at…of all places…Beth David Cemetery in Elmont. I’ve been there a thousand times in the course of my years at Shelter Rock. Maybe ten thousand. It couldn’t be closer. In fact, no cemetery is closer to here, I don’t think. But who knew? Sometimes the challenge really lies more in knowing the right question to ask than finding its answer.

And so Joan and I set out to find my grandparents’ graves just last Sunday. After all those years of not knowing where to go, they were almost eerily effortless to locate. When I got to the office at Beth David, there was no line to stand on. When I asked the fellow at the window if he could locate my grandmother’s grave, he asked for her name and when she died. About fifteen seconds later, he was handing me a printed-out map of the cemetery with the location of my grandparents’ graves circled in blue ink. We got into the car, drove to the corner of Sinai and Wilson. (Someone, not myself, will eventually write an interesting essay about the names they give to streets in Jewish cemeteries.) The gate into the section owned, or at least once owned, by the Zembiner Benevolent Society was just where the man in the office said it would be. And there, in the row of graves furthest from the road were my grandparents’ graves.
This was last Sunday. I was twelve years old the last time I stood in that spot. The graves were tidy and neat, the yews trimmed and healthy-looking. (My mom must have paid for perpetual care, although there weren’t any stickers on the stones saying so.) I don’t know what I expected. I had hoped more of my family’s graves would be there, but it was just them. I had hoped the stones would say more about them, but they only note their names, the dates they died (weird that my grandfather died in 1948 on what would nine years later be the day Joan was born), and that they were loved by each other and by their children. (My grandmother was loved by myself as well, but I suppose there wasn’t room on the stone to go into that much detail. Or perhaps my mother and her sister were over-valuing the concept of the two stones having symmetric legends.) Nothing more. The phrase “Sinai and Wilson” sounded vaguely familiar to me. We had no friends or family in Elmont, but the expression “going to Elmont” also has a familiar ring to it—maybe that’s what my parents, zealous to a fault to shield me from the reality of death, called it when they actually did go visit my grandparents’ graves. What did I know? They certainly didn’t mean they were going to the track.

And so I was left with more questions than answers. Why the Zembiner Society? My mother once told me that she thought her father was born in Odessa. (Only in retrospect does it seem odd to me that she couldn’t say for sure where he was from.) Zembin, I’ve learned this last week, is a town in Belarus about forty miles from Minsk, the capital. Is that where my grandfather was from? (The Jews of Zembin, along with the Jews of nearby Borisov, were annihilated during the war. The site doesn’t suggest that there is a Jewish community there today. And even if there was, would they still have records from so long ago? If my grandparents were alive, they’d both be 128 years old.) Or did my grandmother just buy burial plots from them after my grandfather died? And where are all the other graves—the gravesites of all my grandparents’ siblings, for example, or my great-grandparents’ graves? Joel and Jenny Kaufman, née Mehlman, lived on East 113th Street in Manhattan. But where they’re spending the rest of eternity, I have no idea. I suppose I should have asked at Beth David if they were in the data bank too. Next time!

The whole experience was, as noted, not what I had hoped it was going to be. (One thing I do know about the ghosts, however, is that they rarely show up where and when you’d think.) Still, I’m glad I went. There was certain peacefulness in that place, a certain sense of undisturbed-ness and permanence. I have my grandfather’s name as my middle name. Somewhere, I think I have his naturalization papers. I have quite a few of my grandmother’s paintings—she was quite a good artist—and, I think, some of her jewelry. The rest is all gone…but their graves aren’t gone at all, it turns out, as are also not their ghosts. This being real life and not a Hollywood movie, however, their ghosts just weren’t there haunting their own graves while they waited for over forty-five years for their sole living descendant (other than my children) to wander by for a visit. That part, I think, ghost story writers just made up.

Thursday, December 1, 2011

Memory and Honesty

Memory is the sea in which we spend our lives swimming forward (or at least: in which we spend our lives treading water), the context that gives meaning to the perceptive abilities we bring to bear in our efforts to decipher the world and grant meaning to what we see, hear, taste, smell, and feel of it. Moreover, an intact, healthy memory is considered the sine qua non of mental health itself: one of the chief hallmarks of mental illness is precisely the inability to distinguish between fantasies and “real” memories, between things we’ve once imagined happening and things that actually did occur, between dreamscape and landscape, between idle thoughts we really may once have had and events that really did once take place. No one has ever been charged with perjury for saying on the witness stand, “I got a clear, unobstructed view of their villainous faces when armed robbers burst into the Rite-Aid where I had gone after work to buy a toothbrush” when what that person, no doubt trying to speak honestly, can only really mean that he or she, while speaking under oath months later, remembers standing there in that drugstore on that fateful day and seeing what happened when the robbers burst into the place, their guns drawn and their larcenous intent all too obvious.

All that being the case, I was especially interested by an article that appeared in the paper the other day about the reasonableness of relying on memory in the adjudication of criminal trials. Perhaps some of you saw it as well. (If you are reading this on-line, you can find the article, written by Laura Beal and published in the Times last Monday, here.) It’s an interesting piece, and well worth your time, for a variety of reasons, but the detail that caught my attention had to do with the intersection of eye-witness testimony and DNA evidence: the author wrote, to my mind amazingly, that eye-witness testimony had been crucial in the cases of a full three-quarters of the 280 defendants whose convictions incontrovertible DNA evidence was subsequently instrumental in overturning. That is a detail that no citizen who cares about justice can feel good about passing quickly by.

Many of my readers know that I am a subscriber to the electronic newsletter of the Innocence Project, an undertaking founded in 1992 by Barry Sheck and Peter Neufeld as part of the Cardozo Law School of Yeshivah University but that now exists in its own right as a non-profit organization devoted to seeking justice for the incorrectly convicted. The numbers tell the story, and they are astounding: 208 convicted individuals exonerated, seventeen of whom had actually been sentenced to death. Collectively, and even more astoundingly, those 208 individuals served over 3,600 years in prison for crimes none of them had committed. For the record, the same DNA evidence that gained freedom for the wrongly convicted also led to the conviction of the real criminals in 125 of those cases. So this particular sword cuts both ways! But, as satisfying a thought as that may be (and surely is), I find myself far more profoundly drawn to the statistic mentioned above: that the convictions of a full 75% of the 208 individuals who were subsequently exonerated were based on eye-witness testimony that was apparently incorrect and untrue. That, I believe, is a number that all Americans who care about justice should pause thoughtfully to consider.

There is a strong racial element in play here as well: in forty percent of the cases involved, the incorrect testimony involved a witness misidentifying an accused individual of a different race. There could, I suppose, be malice involved—and it is hard to imagine a more pernicious form of non-violent racism than choosing to lie about someone on the witness stand solely because of that person’s race—but my suspicion (and the opinion of the Innocence Project as well) is that something far more subtle is afoot here: people are simply less good at recognizing people of other races than they are at recognizing fellow white people or fellow black people or fellow any kind of people who are whatever it is they themselves are. The “other” is weird, strange, a bit unrecognizable. The old canard that all “those” people look alike is derogatory and insulting, but it’s not entirely untrue: people of distinguishable races and ethnic groups apparently do tend to look far more like each other in the eyes of outsiders than they do to each other. You can read more about the Innocence Project on their website at, but the detail I want to focus on here is the one relating to the reliability of eye-witness testimony.

Our Torah clearly understands that eye witnesses can simply be wrong. And, indeed, the Torah seems to address the issue through ancillary legislation designed to eliminate the possibility of error. Torah law, for example, specifies that no one may ever be convicted on the basis of one sole eye witness and that any such witness may only speak in court if the court has determined in advance that, at the very least, a second witness will testify to having seen the same thing. (The Torah laws prohibiting defamatory speech are set aside for witnesses testifying in court. But they are specifically not set aside if it is clear in advance that such testimony cannot possibly lead to a conviction.) Furthermore, there are two different kinds of questions which witnesses must answer, one set related to the specific details of the crime in question and the other related to what moderns would label as circumstantial details: not what the accused was seen doing at some specific place and time, but what color sweater she or he was wearing at the time or what kind of shoes. It is true that there is some extra leeway with respect to the questions we would label circumstantial: if either witness or both witnesses say that they do not know the answer to one of the circumstantial questions, the court may still consider their testimony. But if either witness cannot answer a specific question relating to the time or the place of the alleged incident, or to the identity of the person seen doing the thing the accused stands accused of having done, then such testimony is discarded as invalid and the trial cannot proceed unless new eye witnesses can be produced.

Furthermore, the Torah understands that people get it wrong all the time and so introduces the concept of hatraah, a kind of decisive check on the system that more or less guarantees that no one will ever be convicted falsely. Hatraah means “warning,” and the concept is simple enough: the witnesses must also testify to the fact that they personally warned the accused of the consequences of his or her actions. It sounds simple, but what the Torah is really saying is that we do not rely simply on eye witnesses claiming to have seen something, that they must personally have experienced the kind of relationship with the accused that will subsequently make it almost impossible, assuming their probity, for them to give false testimony. Rambam explains how the whole warning thing works: “How is a warning administered? They say to someone, ‘Desist, for the action you are about to undertake is a sin and you will become liable to be executed by the court’ or ‘Desist, for what you are about to do is a sin and you will be severely punished if you are convicted’ And then the person to whom they are speaking must acknowledge their words and say something like ‘I know, but I am going to proceed to commit this act nevertheless.’” And even that is not enough: according to Rambam, the individual being warned must then commit the act in question almost immediately. If more time passes than would be necessary for one average citizen to greet another, then the accused can only be convicted if it can be demonstrated in court that he or she was warned a second time.

For good measure, eye witnesses who insist that they knew the accused well enough to identify him or her and that they personally administered the requisite warning must then be formally threatened with having to bear the responsibility for the execution of an individual falsely convicted because of their incorrect testimony for the rest of their lives, and that it is not going to be solely the life of the accused for which they will bear responsibility but also for the lives of all of his or her now-to-be-unborn descendants.

So how many people do you imagine were ever convicted under such a system? The answer is…who knows? It’s mentioned in the Mishnah that any court that executes more than one person every seven years is to be condemned as one excessively willing to convict. As great a luminary as Rabbi Akiba is cited as having remarked once that he couldn’t really understand how anyone at all could ever be convicted under the Torah’s system. Nor is it entirely obvious that the Jews under Roman rule had the right to execute anyone anyway. But all that is beside the point, which is that our tradition clearly understands that even the eye witness testimony of the most reliable and honest individual can be fatally flawed. And its remedies—requiring always more than one witness, insisting that the witnesses not only testify that they saw the accused but that they actually knew him or her, demanding that the witnesses be able to say in court that they spoke to the accused and know for a fact that he or she was acting with malice aforethought—are clearly based on the assumption that even the most well-meaning person can simply be wrong. So you see how infuriating it is to me, and should be to us all, when someone announces that the Judeo-Christian tradition (whatever that is) supports the notion of capital punishment as it is carried out in our country. Yes, of course, our Torah demands that death be meted out for serious crimes and sins. But the detail that is rarely mentioned is that the same Jewish tradition would never countenance the conviction of anybody at all based solely on circumstantial evidence or the eye witness testimony of a single individual.

The sages of ancient times would have loved DNA. And they would especially have loved the Innocence Project, with its insistence on the basic unreliability of eye witness testimony that has not been shorn up so unassailably that the chances of it being incorrect are almost nil. That was what our rabbis were trying to do in ancient times with all the requirements they found hiding in Scripture just behind the texts that appear blithely to be decreeing capital punishment for all sorts of grievous wrongdoing. And it is what DNA testing is able to do today in a far more comprehensive manner. I can’t imagine the ancients wouldn’t have embraced the concept had they been able to imagine it, because in the end, the underlying principle is the same: to find someone guilty in court, the evidence has not merely to be compelling, but—to the greatest degree possible—incontrovertible.