Another highly respected rabbi who was sentenced to 38 months in prison after he had pleaded guilty had asked for no payment and had been assisting agunot for many years pro bono publico. That fact did not deter the FBI and federal prosecutors from accusing him of conspiracy and attempted kidnapping. Nor did the acknowledged fact that my client was neither promised nor received any payment for the service of signing the Get win any credit from the FBI or the prosecutors.
Payment was not, apparently, an essential ingredient in the allegedly criminal conduct the FBI intended to punish if the “Getcha Sting” had succeeded in luring participants into a “forced Get.”
The FBI did not know, when it embarked on this course, whether any payment would ever be requested by anyone, and surely not by ORA or the Beth Din of America. The rabbi’s request for payment was an unexpected boon to the FBI which facilitated conviction of the rabbi in a jury trial.
The presiding judge wrongly excluded all evidence of religious motivation and intent. From the beginning of the Trenton trial, I and the other three defense counsel tried to present to the jury the overriding motive of all those who planned and participated in the trip to the warehouse. None truly wanted to lay a hand on the fictional husband or to engage in violence. All believed the husband might agree to authorize a Get if he was only confronted. All thought they were performing a mitzvah in helping to free an agunah.
A defendant’s intent is, all legal authorities agree, a critical issue for the jury in deciding whether he committed a crime. An Orthodox rabbi who was the prosecution’s first witness acknowledged during my cross-examination that it is “a mitzvah to participate in permitting an agunah to remarry.” If the defendants’ overriding objective was not to assault or kidnap but to obtain a Get for an agunah, the jury should consider that purpose in determining whether there was criminal intent to commit conspiracy and attempted kidnapping.
But this line of questioning set off a firestorm with the prosecutors. They argued that any discussion of religious motivation was an invitation to the jury to engage in jury “nullification.” Wikipedia defines “jury nullification” as “occur[ring] in a trial when a jury acquits a defendant, even though the members of the jury may believe that the defendant did the illegal act, yet they don’t believe he or she should be punished for it.” The judge agreed with the prosecutors. She said, “I think much of this is directed to achieve jury nullification.”
For the remainder of the trial, all mention of religious obligation or commitment to the fulfillment of mitzvot was forbidden. When the prosecutor thought I came close to the prohibited line, he would complain to the judge and I was given a tongue-lashing.
The Trenton jury did, in fact, engage in some “nullification,” but not because it accepted a religious justification for criminal conduct. The prosecutors added to the New Jersey indictment some kidnapping charges for actual beatings of recalcitrant husbands that had taken place in Lakewood in 2009 and 2010. Tellingly, the jury voted unanimously “not guilty” on all the actual kidnapping charges that grew out of these real-life beatings. It returned a guilty verdict only on the participants in the “Getcha Sting” where there was a fictitious husband the jury never heard or saw. The non-Jewish jury apparently believed that the recalcitrant husbands who testified were reprehensible and dishonest and did not, therefore, choose to punish those who assaulted them.
The FBI’s “Getcha Sting” was comparable to similar “stings” that have been found “outrageous” so that prosecutions were dropped. Did the prosecution’s conduct in creating the “sting” entitle the defense to claim that the defendants had been “entrapped?” The current law on entrapment presents a significant obstacle to such a defense. But the FBI’s conduct is not beyond correction by the courts. Federal courts have dismissed criminal cases when the prosecution’s conduct in promoting and prosecuting fictional crimes was “outrageous.” Last January the federal prosecutor in Chicago dropped charges against 27 black and Hispanic defendants who were charged after being arrested following similar “stings” conducted by the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).