The Gemara (Sanhedrin 17a) rules that if a majority of judges on the
Sanhedrin (Jewish high court) convict a person accused of a crime
punishable by death, he is put to death. If, however, all 23 judges find
the accused guilty, he is spared. (The logic behind this counterintuitive
ruling is that when it comes to the death penalty, the Sanhedrin must go
out of its way to examine every possible argument for the accused’s
innocence. If not even one of the judges was swayed in his favor, we deem
the process flawed, and he is acquitted.)
This raises the interesting question of what the last judge to rule should
do in a case where he’s convinced beyond a shadow of a doubt as to the
accused’s guilt, and all the previous judges have already ruled guilty. If
he speaks his mind, and rules guilty, the accused will walk free on the
heels of this unusual halacha. Conversely, if he rules innocent, the
accused will rightly be put to death.
The Or HaChaim comments on the verse (Shemos/Exodus 23:2), “Do not follow
a multitude to do evil; nor shall you speak in a case to incline a
multitude to pervert justice,” that it hints to this scenario. Do not
follow a multitude to do evil – refers, he says, to the case where the
last judge deems the accused is innocent, while all the other judges have
already ruled guilty. If he speaks his mind, he will sway the verdict to
guilty, because his ruling of innocent becomes the one dissenting voice.
He may, therefore, be tempted to rule guilty, in order to acquit a man he
thinks deserves to live. Do not follow a multitude to do evil – i.e. don’t
adjust your ruling to match theirs in order that the accused go free. This
is evil, for a judge must speak his mind, regardless of the consequences.
Furthermore: Don’t speak in a case to incline a multitude to pervert
justice – this refers to a case where the last judge agrees the accused is
guilty, yet might be tempted to rule innocent in order to bring about his
downfall, as above. By ruling innocent, he would incline the ruling of the
multitude to what they all feel is correct, i.e. a conviction. Yet to do
so, the Torah states, is a perversion of justice.
The Gemara (ibid.) says that in order to be appointed to the Sanhedrin, a
judge must be so sharp that he could find grounds to rule that the
proverbial sheretz (an impure rodent) is pure. Tosafos wonders what such
intellectual gymnastics have to do with receiving the right to judge,
since the Torah clearly rules a sheretz is not pure.
Ya’aros D’vash (2:8) suggests that a judge might need to exercise creative
thinking in the case where his predecessors have all ruled guilty. If he
wishes to insure the accused receives his just punishment, he will have to
come up with some “creative” thinking in order to advance an acceptable
argument that results in a conviction, because if he follows the rest, the
accused will go free.
At first glance, the Ya’aros D’vash seems to imply it’s acceptable for the
judge to alter his ruling in order to bring about what he feels is the
correct conclusion. Yet the Or HaChaim says this is a perversion of
The Midrash (Shemos Rabba 14:61) says that the entire beis-din shel
ma’alah (heavenly court) consented to the plague of darkness for two
reasons: 1) To allow the Jews to stroll uninhibited through the property
of the Egyptians and search out their valuables, which they would
later ‘borrow’ when they left. 2) Four out of five Jews, Chazal say, were
wicked, and could not take part in the Exodus. In order that the Egyptians
not know that Jews were dying, they all died and were buried during the
plague of darkness.
Chanukas HaTorah explains why the Midrash needed to give two reasons.
Since all the angels agreed to the plague, their vote should have been
overturned based on the law of a court who is in complete agreement.
However, he says, although they all agreed, since there were those who
agreed in order to discover the Egyptians’ wealth, while others felt it
was justified in order to hide the Jews’ death, it was not truly
unanimous. Therefore, he says, the conviction was allowed to stand.
Based on this, Berach Moshe says, we can understand the Ya’aros D’vash. He
never meant to say the judge should alter his ruling and declare the
accused innocent in order to secure his conviction – that would be a
perversion of justice. Rather, what he meant was that a creative judge
would come up with a different reason to convict him, removing the
court’s unanimity, while insuring the correct ruling.
Arvei Nachal uses the same halacha to explain the first verse of the
parsha: Come to Pharaoh, for I have made his heart hard, in order to place
my signs within him. The verse implies the harsh judgment, i.e. the
plague, was a result of Hashem having hardened Pharaoh’s heart.
When Pharaoh’s case, so to speak, came before the heavenly tribunal, there
was little to be said in his favor. We are talking about a man who not
only tortured and enslaved an entire nation, but who denied Hashem’s
existence. The beis din shel ma’alah was in a quandary – if they all
agreed Pharaoh deserved to be punished, he would be absolved. It was only
because they were able to make a case for his innocence – that it wasn’t
his fault since Hashem hardened his heart – that Pharaoh was convicted and
the plagues allowed to continue. Have a good Shabbos.