Mesira XVI: Putting the Peh before the Ayin – Building a Case

Like many fine Jews, I spent a significant portion of Tisha B’Av listening to inspiring speakers tell us how rotten we really are. Boruch Hashem, I skipped breakfast that morning or I might have gotten an upset stomach.

The speakers at the Har Nof Tisha B’Av event were all outstanding but, for me, the most inspiring of the bunch was Rabbi Imanuel Bernstein. Among the ideas he expressed was an explanation to a well-known anomaly that occurs in the Alef-Bet sequence of Megillas Eicha which is noted in the gemara in Sanhedrin 104b.

In every perek of Eicha except the first, instead of maintaining the true order of the letter ayi”n followed by the letter pe”h, the order is reversed wherein the letter pe”h comes first and is then followed by the letter ayi”n. The explanation given in the gemara is that this is a reference to the meraglim who told with their mouths – peh – things that they didn’t see with their eyes – ayin.

The gemara does not elaborate further, and so, Rabbi Bernstein asks: In what way did they say things that they did not see? Everything in their report was based on an actual sighting.

He answered by saying that when the meraglim referred to the land as ארץ אוכלת יושביה - a land that devours her inhabitants – they were purposely distorting the truth. Rashi says that they made these remarks because wherever they went, there was always a very major funeral taking place. Rashi said that HKBH orchestrated this unnatural occurrence so that the citizens would be too preoccupied to notice the spies. But, says Rabbi Bernstein, they chose not to see it this way and to “see” it as the natural characteristic of the land. This is despite the fact that other criteria prove out that this cannot be the normal tendency, they still used it to substantiate their claim.

What was going on?

Well, the frightening report that they delivered, for whatever their motives, was precisely the report that they had previously determined that they wanted to deliver. They only needed to amass the true facts that will support their assertion. Thus, they devised the report first. Only afterward did they look to see what is useful to corroborate it. They told over with their mouths – peh – what they did not see with an objective eye. Only with what they wanted to see with their subjective eye. First came the “report”, and then came the looking.

In our parlance, this is known as: building a case.

As such, many people have a tendency to first decide what is happening and only then to evaluate the evidence. Anything that does not support their preordained conclusion is disregarded despite its integrity. Things that can be used to support their foregone conclusion are magnified and enhanced and overvalued way beyond their scope. And oft-times, they are even fabricated.

This is building a case.

Thus, Darwinists promote unprovable and unsustainable theories and accept as gospel truth the flimsiest of evidence as well as a few hoaxes (google: Piltdown Man), all the while shrugging off more substantial evidence to the contrary, in an effort to substantiate their theory of evolution.

And, of course, case-building is the hallmark of criminal prosecution. In a society where an accused miscreant must be found guilty beyond a reasonable doubt, the prosecution needs to “build a case’ against the accused in order to win a conviction. In some cases, there is no question in anybody’s mind as to the guilt of the accused such as where there is a voluntary confession, several objective eye-witnesses or irrefutable forensic evidence. In such a situation, the prosecutor can win his case without resorting to subversive means.

Unfortunately, he does not always have this luxury. Moreover, all too often there are no valid grounds to assume the accused is guilty at all. And in fact, he or she isn’t. But this never stops a dedicated prosecutor. His job is to convict the accused regardless of whether they are truly guilty. It is his record and reputation (and perhaps his job) on the line. And so, they are driven to convict the accused, guilty or not.

They have already determined that the accused is a danger to society. They merely need to convince those in power to pass judgment. Problem is, it is very difficult to find compelling evidence or elicit a confession from an innocent person. Undaunted, they pull out a whole bag of dirty tricks including coerced or false confessions, tampered evidence and lie detector tests, scare tactics and plea bargains, buying witnesses with reduced sentences for their crimes, unsubstantiable and third party testimony (i.e., he confessed to me privately in jail), withholding exculpatory evidence, character assassination, and the like. It doesn’t matter what the truth is. The main thing is to nail the ba****d.

And with these tools they build a case. And we become a society fraught with wrongful convictions. And, when things like this happen, we can never be certain that a convicted felon is really guilty and a danger to society. Can we?

And so, the spies put their mouth before their eyes. This means that before looking objectively, they already passed judgment with their mouths that the land is dangerous – ארץ אוכלת יושביה. They only needed to look now to seek out the supporting evidence. They needed to build their case.

Rabbi Bernstein intimated in his speech that this is the foundation of sinas chinam.  A person is infected with sinas chinam when they bend over backwards to build a case against the other person. Even when an objective look at the situation indicates otherwise.

People have a tendency to pre-judge situations and to pre-judge other people. This is sinas chinam – prejudice. When their judgments are challenged by other voices or contrary evidence, many prefer to question the evidence rather than the judgment. And to “silence” the other voices. They must build a case.

This tendency is rooted in arrogance and narcissism and a feeling of superiority. “Only I or those who think like me are in position to judge!” And, in many cases, it is fed by paranoia.

This is what I wrote about in my post about Midas HaDin. Among a short list of Human traits I wrote the following:

• The human being firmly believes that good should be rewarded and evil should be punished and, as such, has a craving to administer justice and to exact revenge.

• The normal human being (not a psychopath) cannot conscience unjustified violence. As such he must have some battle-cry or pretense which he will swear by to justify his actions.

Combined, these say to us that a Human being is driven to pass judgment. Yet, when a Human being passes judgment on somebody else, it must be couched in virtue, altruism, and righteousness. He must justify his authority to pass judgment on another. He must have a case. But, as Major Tetley teaches us in The Ox Bow Incident, the judgment does not need to be altered to fit the case. If anything, we must tailor the case to fit the judgment.

This is using the peh (mouth) to “pronounce” the sentence before using the eye (ayin) to check the facts. This is prejudice. This is sinas chinam.

The follies of the meraglim were performed by…the meraglim. These were not simple people. The Baal HaTurim says they were officers and judges at the Sarei Chamishim level. The most esteemed 2% of the population. Regardless, they were on par with Yehoshua and Kalev. They were learned and wise. Rashi tells us they were very chashuva people. And yet they fell prey to the Human failings of narcissism and paranoia that cause people to pre-judge and “speak” before they look.

So this tendency of case-building can affect anybody. Even very chashuva people.

Very recently, I put out a series of posts concerning an accused sexual offender (she has been called a “child molester” even though she hasn’t even been accused of molesting any children). My main purpose was to enlighten my readers that, as I understand the Halacha, once any Jew reaches Eretz Yisroel, no matter how evil they are, they cannot be sent out. Whatever evil is in effect must be dealt with here. 

As an additional element, I “built a case” to suggest that this person may not be as evil or dangerous as the Internet makes her look. Thus, unless we learn otherwise, there is no justification for mesira to non-Jewish authorities even here and certainly to the outside of Eretz Yisroel.

Since then, there has been a lot of publicity about another alleged offender. One who is much more “closer to home”. The circumstances in both cases are remarkably similar. In both cases the accusations were made after a substantial time lapse from the period of the alleged offenses. In both cases the alleged victims are touted as "children" but were at or beyond puberty, which does not indicate pedophilia. In both cases the accused denied all allegations. There are no confessions. In both cases there is absolutely no physical evidence or objective witnesses to support the allegations. There are only the claims of the accusers – nothing more. In both cases the alleged offenders relocated to Eretz Yisroel and in both cases there have been no complaints of repeat offenses as of the relocating.

In the initial case, there were no trials or dinei Torah by which one could say that the offender’s guilt was ever properly (or improperly) judged. In the second case, the offender was convicted in a bench trial (single judge) based solely on the testimony of two out the four accusers (the other two were quashed by the prosecution for being unreliable). From the superficial checking that I was able to do, it seems the defense claimed that the accusations were fabricated although it couldn’t prove they were fabricated (since this is next to impossible). The prosecution claimed that the accusations were not fabricated even though they could not prove that the accusations were not fabricated (although it should be possible as well as imperative in order to obtain a conviction). The solitary judge decided to convict the accused.

This is how judgement is passed in the U.S. of A. (and elsewhere).

The bottom line is that it has not been established through credible means that we are dealing with dangerous people. This does not mean that we should be complacent and disregard common sense safeguards in the presence of these people. It likewise does not mean they should be allowed to continue to teach or tutor or replicate the type of circumstances that provide fertile ground for unsavory activities and foment allegations.

But it does mean that there is no justification for punitive measures that supersede basic protective measures, such as malshinus, harassment, slander, mesira to goyim, “running out of town”, and certainly, extradition to chu”l for the sole purpose of mesira (based on unproven misdemeanors).

Now, I fully expected my position to be misunderstood, misconstrued, and basically opposed and challenged by liberal minded people, “consumers” who are unfamiliar with Torah oriented thinking. The erev rav אשר אינם יודעים בין ימינם ושמאלם. Those who do not know how to evaluate facts and will pass judgment first and look later at all the “evidence” that supports their conviction (and disregard anything else).

What is totally astounding as well as appalling is the number of “chashuva” people, Sarei Chamishim (and even higher), judges with beards and black velvet yarmulkas who cannot hold back from being motzi dibah. Who pronounce with their mouths (or blog and Facebook posts), what they refuse to look at with their eyes. Who bend over backwards to build a case that the land – or the alleged unproven offender – is unequivocally dangerous.

For those who delve into the sewer of the blogosphere, you may notice that I have not restricted my diatribe to my own blogsite – although it is the only place where I can express myself properly. I have ventured to bring a bit of sanity and open-mindedness to some other blogsites that specialize in this schmutz (in the Comments section). This is because, since their material is much more aggressive and coarse (i.e., spicy), they have a much bigger readership - so I can spread a bit of gospel.

In the “whitewash” section of my main Malka Leifer post decrying extradition, I challenged the claim asserted by Yerachmiel Lopin of Frum Follies that the Adass school was aware of her (alleged) activities earlier than reported. I decided to access the said FrumFollies post and assert my challenge on site as well. We carried on a respectful give-and-take the last week of June. As you would expect, neither party convinced the other. This carried on until early July when he challenged me:

BTW, will you revise your claim that there is no public safety purpose in prosecuting her because according to you she only molested Australian girls because she missed …her husband who was in Israel. According to this story (click HERE) she is abusing her own children in Israel?

Let’s overlook the fact that he is misrepresenting my “claim”. I wrote many times that if you have grounds to prosecute, go ahead. Just don’t send her back to Australia. What he is now doing is presenting a lone news article, which was obviously researched and written by an antagonistic person for the purpose of maligning the accused, as proof that she is currently a danger. He needs to justify his call for extradition to Australia.

I responded (slightly abridged):

Personally, I never take anything I read at face value. I also make an effort to read between the lines. This particular article that you linked to is clearly on a vilification rampage. Of course it quoted people who vilify her – as well as Manny Waks. If it interviewed people who say she’s an angel would it quote them as well?

I never made a judgement whether she is a good person or not. My mission is to stand up for Kavod HaTorah and kedushas Eretz Yisroel. The Halachos of mesira forbid it (mesira) no matter how evil the person is unless they are a menace to the society that wants to be moser them. There is a special Halacha of not extraditing people out of E”Y, even criminals.

Despite the above, it looks clearly to me that you and The Age and many people are bending over backwards to make a case to justify a mob lynching.

I will not be a party to it.

There, I said it straight out. He is building a case. The amazing thing is that he didn’t give up. It must be that he knows for a fact that she is definitely as evil as described. I don’t know how, but he certainly does. So he writes:

As always, you find every possible reason to believe she is not a risk to others, and every halachic angle to argue against prosecuting her, in spite of the terrible toll of her molesting. Will you now correct your claim…? 

Get this? This person calls himself a frum Jew, yet he criticizes me for finding “every Halachic angle to argue against prosecuting…”. Note that he does not invalidate or dispute the Halachic angles. They may be perfectly valid but I am at fault for finding them!! (They weren’t very hard to find, by the way.)

Well, not exactly. All the Halachic angles must be invalid due to the “terrible toll of her molesting.” You see, the terrible toll is proven and indisputable so it trumps all halachic angles – even those that apply regardless of whatever terrible toll took place.

This is somebody putting his peh before his ayin. And I am not sure it can be called an “ayin tova”, either. He knows she is currently dangerous. She has to be dangerous because her being dangerous fits his agenda. He just needs to find the evidence.

Incidentally, I asked him, in my response, to quote precisely what words of mine need to be revised, instead of crudely [mis]paraphrasing me. I did not receive a response to this.

The next case-building meragel, the Sar Meah and (self-proclaimed) advocate of the down-trodden is the Fied Feifer of Rockland, the Great Avenger, Harav Yaakov Horowitz. His gripe involves the second offender in this discussion. The one who lives close to me.

Now, I have already written that this case is far from iron-clad despite the apparent conviction. Only somebody who is intimately familiar with all the details can make an informed judgement.

Irrespective, Rav Yaakov has decided on his own that there are no flaws in this case. Hence, it is the biggest mitzvah to slander and harass this person regardless if such actions will do nothing to protect any “children”. Also he believes b’emunah shleima that he ought to be extradited from E”Y to chu”l to be mosered to the goyim to face charges for a phantom misdemeanor which, according to the American defense lawyer, is not on the books. (Doesn’t really matter if it is.) This great mitzvah outweighs all halachos of motzi-shem-ra, malshinus, ona’ah, mesira, Gonev Ish u’Mecharo, Lo Tasgir and a host of others. 

According to Rav Horowitz the denials of guilt and lack of any substantial evidence is immaterial (pun intended). So are the letters of countless supporters at post trial. Rav Horowitz has a lynch mob agenda just like Major Tetley and so he tells all his thousands of Facebook friends on Aug. 3:

[The offender] is a very, very perverted and dangerous person, perhaps the most dangerous I've ever met.

From all of the fully confirmed unmarried molesters that really did molest real children (little ones) and not just “inappropriately touch” pre-teenage boys (allegedly), and who has a stable marriage and no complaints since he left NY (and before), this fellow is deemed the most dangerous!

Well, he has to be dangerous and continue to be dangerous because this is the only way to build a case to harass him and his family for no good reason. Of course he also needs to throw in other unsustainable claims, “He has a reputation as a serial pedophile” and that he “is a murderer.” (FB – Aug.5).

But why is he really so very dangerous? Is it because he will eat your children alive?

No. It is because he has the temerity to defend himself against all this wanton harassment by suing Yaakov Horowitz for the slanderous comments and tweets that Rav Horowitz actually generated and dissipated. Because of this personal affront, Rav Horowitz is appealing to all his chassidim to join him in his lynch mob. Because he is so very dangerous. (If he gets away with this, he may sue somebody else!)

So to prove he is dangerous, he builds his case. In a personal message to me on the Daas Torah blog (Aug. 3) he proudly announced:

[The offender] is a serial pedophile who has been molesting kids since at least 2000 in numerous schools and Shuls in 3 states and 2 countries that we know about.

So I both emailed him and posted publicly (ibid.):

…please provide me with details about the molestation that "we know about" that took place in any states or countries besides NY, USA. (I.e., which other two states and which other country and how do you know?)

I am still (patiently) waiting for his response.

The last case-building meragel is the Sar Haelef himself and unparalleled master of Daas Torah, Harav Daniel Eidensohn, Shlita.

My online debate can be found in the comments on three Horowitz vs. YW posts on the Daas Torah blog (HERE, HERE and HERE). I obviously lost the debate because Rabbi Eidensohn said so and it’s his blog.

Rabbi Eidensohn and his chassidim clearly subscribe to the belief that: Once a rodef, always a rodef. And consequently, anybody who has ever been classified as a rodef or mitza’er ess hatzibur carries that status for life, wherever he goes, no matter how nicely he behaves. Hence, it is always justified to harass and slander him or her. Moreover, this perpetual “rodef” status means that it is always sakanas nefashos so it is muttar to extradite, for the purpose of mesira, any ex-molester from any point on the globe to any point on the globe to do him in.

They also firmly believe that any type of offense is capital giluy arayos – even 2^nd degree seksual abuse (Class A Misdemeanor – non-felony) which typically precludes force or “penetration”.

Lastly, they firmly believe that any type of conviction, even a misdemeanor conviction in a bench trial on very shaky ground (no confession, evidence or witnesses) in NY State, is absolute irrefutable proof that the offender is truly guilty as charged. (And they call me naïve!)

I valiantly tried to direct Rabbi Eidensohn to all the Halachic sources and legalistic flaws that prove otherwise, but alas, I was too ignorant, misguided, naïve, and terribly wrong. Although he neglected to demonstrate how or why. Every Halachic source I quoted was “misapplied” even if it is pashut pshat. He hasn’t read any of my 18 or so Mesira posts and he never will. They are all too long for him and he is a very busy fellow. He has a blog to maintain.

But I suppose the truth must be that this alleged offender is definitely exceedingly dangerous because I don’t know anything about these types of people and he knows so much more than I do. And besides, he was convicted, and assessed a high risk level (by the same judge)…

So despite a lack of real hard evidence, any recent incidents, or even Rabbinic approval by any Rav who is truly familiar with the case, the judgment is passed by a consensus of bloggers and self-proclaimed child abuse advocates. Anybody can build a case when the “nation” is cheering them on.

And so, these chashuva people, the fied fifers, Yerachmiel Lopin, Rabbi Horowitz, and Rabbi Eidensohn are so intent on ridding the world of our “vermin” that they are afraid to look at the halachic structure or the true [sorry] state of the evidence in each case. All of these people are tenaciously holding on to a philosophy of: “Once a rodef, always a rodef!” despite the fact that it’s possible they were never a rodef in the first place and that, even if so, extradition and mesira overseas is still forbidden.

So in light of Rabbi Bernstein’s remarks, as we look back at Tisha B’Av we take out this lesson:

As long as the Rambam, Shulchan Aruch, Chofetz Chaim, the facts on the ground and the guidelines set by the poskim listed in Rav Zvi Gertner’s kuntress (Dam Reacha – Yeshurun Vol. 15) are irrelevant, as they are to Yerachmiel Lopin, Rabbi Horowitz, and Rabbi Eidensohn, these meraglim will declare the subject “dangerous” and the case will be built. The judgments will be made before the facts are evaluated and the harassment, motzi-shem-ra, malshinus, the sinas chinam and the churban will go on unabated.

כל דור שאינו נבנה בית המקדש בימיו, מעלין עליו כאלו הוא החריבו!