January 23, 2019

Judge Strikes Down Female Genital Mutilation Law

A judge struck down a 1996 federal law banning female genital mutilation, saying that it was incompatible with the Constitution.

The Michigan case at hand involved Dr. Jumana Nargawala who allegedly performed female genital mutilation on nine girls, who were reportedly in the age range of 7-12 years old. Nagarawala is also alleged to have “tricked” two of the girls into the procedure, as one of the girls was allegedly told that the procedure was to clean out bacteria and afterward a medical examination found damage to her genitals.

Nargawala has denied the allegations, stating that she performed a benign procedure on the girls.

The judge, Bernard Friedman, argued that the federal government didn’t have jurisdiction over the matter because female genital mutilation doesn’t constitute interstate commerce.

“As despicable as this practice may be, it is essentially a criminal assault,” Friedman wrote. “FGM is not part of a larger market and it has no demonstrated effect on interstate commerce. The commerce clause does not permit Congress to regulate a crime of this nature.”

Consequently, the six charges under the FGM law against Nargawala were dropped, as were charges against Dr. Fakhruddin Attar, who allegedly allowed Nargawala to use his facility for FGM, and his wife Farida Attar, of providing aid to Nargawala.

Molly Blythe, an attorney for Nargawala, told National Public Radio (NPR): “The law warranted this decision, and we are happy with it.”

Nargawala and the Attars still face charges of conspiracy and obstruction. The federal government is looking into appealing the ruling.

The ruling has sparked outrage. Ayaan Hirsi Ali, a survivor of FGM, tweeted:

The Washington Examiner’s Tiana Lowe called the ruling “a bending of the law to protect and normalize systemic violence against women.”

“Even the most limited, contemporary reading of the Commerce Clause would allow Congress to protect minors from being forcibly shoved across state lines to undergo medically detrimental torture. (One of the victims was drugged with Valium to make her compliant.),” Lowe wrote.

Jaha Dukureh, who like Ali is a survivor of FGM, told NPR, “Some women have partial or total removal of the clitoris [a small, highly sensitive part of the genitalia]; some have the folds of flesh around the vagina removed; some have both those areas removed; some have the vaginal opening narrowed, often by stitching, and some women have some form of piercing, scraping, cauterizing to genitalia.”

Dukureh added that there are no health benefits to FGM and it’s generally done as a religious procedure to control women’s sexual impulses.

There are 27 states that currently have laws banning FGM, including Michigan.

Stephen Reinhardt, Outspoken Judge and Jew, Dies at 87

Screenshot from Twitter.

Judge Stephen Reinhardt, dubbed the “liberal lion” of American jurisprudence and as outspoken on Jewish as on legal issues, died March 29. He was 87.

He died of a heart attack during a visit to a Los Angeles dermatologist, according to a spokesman for the 9th U.S. Circuit of Appeals, on which Reinhardt served from his appointment by President Jimmy Carter in 1980 until his death.

“Reinhardt was deeply principled, fiercely passionate about the law and fearless in his decisions. He will be remembered as one of the giants of the federal bench,” Chief Judge Sidney K. Thomas of the 9th U.S. Circuit — whose jurisdiction includes the Western United States, Alaska and Hawaii — told the Los Angeles Times.

His rulings were frequently overturned by a more conservative U.S. Supreme Court, to which Reinhardt responded that he was not about to help the Supreme Court take away the rights of citizens.

Among his more controversial decisions was that the words “under God” in the Pledge of Allegiance were unconstitutional, as were bans on same-sex marriage and physician-assisted suicide.

Reinhardt was born in March 27, 1931, in New York as Stephen Shapiro, but changed his name when his mother divorced his father and married Gottfried Reinhardt, screenwriter, director and producer (“The Red Badge of Courage,” “Town Without Pity”), who introduced the boy to the Hollywood community.

Stephen Reinhardt’s even more famous grandfather was Max Reinhardt, who revolutionized the German stage and then created Hollywood Bowl spectacles after fleeing Hitler’s Germany.

“Reinhardt was deeply principled, fiercely passionate about the law and fearless in his decisions.” — Sidney K. Thomas

This trauma also deeply affected Stephen Reinhardt and he spoke passionately about Jewish issues, unusual for a judge and a man of his standing.

His first wife, Maureen Kindel, told Citizen Magazine in an interview that her husband “thinks about his Jewish heritage a lot, very much so. He also thinks about the discrimination against Jews that he suffered when he was younger. I’m sure that has formulated his views about being protective of people’s rights.”

In 1990, in an address to the City Club of Los Angeles — which was labeled “provocative” by the media — Reinhardt maintained that Jews were drastically underrepresented on the U.S. Supreme Court, adding that if some were added “the result would be a better, kinder and gentler nation.”

Reinhardt is survived by his wife, Ramona Ripston, longtime former head of the American Civil Liberties Union (ACLU) of Southern California; three adult children, Mark Reinhardt, a political science professor; Justin Reinhardt, a musician; and Dana Reinhardt, a novelist; and seven grandchildren.

The family asks that donations in Reinhardt’s memory be made to the ACLU.

D.C Judge to Request Israel’s Assistance In Dispute with Russia Over Chabad Books

Photo from Public Domain Pictures.

Judge Royce Lamberth, a federal judge of the District of Columbia, will request Israel for their assistance in a dispute with Russia over religious texts.

The dispute involves the Chabad-Lubavitch movement demanding that Russia relinquish a collection of texts that are invaluable to the movement. So far, Russia has refused to hand them over.

According to The National Law Journal, Chabad told Judge Lamberth on Tuesday that Kedem Auction House in Israel was able to a get hold of one of the texts, so they requested that Lamber ask an Israeli court to mandate Kedem to explain how they obtained the book. Lamberth approved their request and issued a legal letter to an Israeli court.

“Chabad has brought to this court’s attention the apparent intention of the Witness, Kedem Auction House Limited of Jerusalem, Israel, to auction a volume that has been identified as part of the Chabad library in Russia’s possession,” the letter reads. “Based on information presented to this Court and found to be credible, the volume is subject to this Court’s previous judgment and order.”

Lamberth also reportedly ruled that the book obtained Kedem shouldn’t be sold.

The texts in question involve a collection of 12,000 books and 25,000 handwritten documents that were stored by Rabbi Sholom Dovber Schneersohn during World War I, which is why they are known as “the Schneerson collection.” Rabbi Chaim Cunin told Deseret News that these documents feature “notes from rabbis” and “personal thoughts and teachings.”

“The documents include the stories and struggles of people who, in some cases, only exist on these pages,” said Cunin.

The Russians seized half of the Schneerson collection in 1918; the rest were seized years later by the Nazis. In the aftermath of World War II, the Soviet Union got their hands on them.

Chabad first filed a lawsuit against Russia to return the texts in 2004. Russia withdrew from the case in 2009 and has refused to hand them over, claiming that Chabad has no legal claim to it. However, Tablet’s Avital Chizik has written that the Russians are simply afraid of “setting a legal precedent for returning nationalized Soviet property at large.”

Russia’s refusal to hand over texts prompted Lamberth to sanction them $50,000 per day in 2013, which has accumulated to $83.5 million. Chabad argued on Tuesday that the sanctions should be increased to $100,000 per day.

All 100 U.S. senators have called for Russia to release the texts. The Department of Justice has also sided with Chabad, although they are wary of further sanctions that may result in Russia taking retaliatory measures.

Abner Mikva, judge and congressman who mentored a president, dies at 90

Abner Mikva, a federal judge and congressman who served as a mentor to a range of Democratic politicians from the Chicago area, died at age 90.

Mikva died Monday in Chicago, according to the Chicago Tribune. His political career, spanning five decades, saw him serve in state and national office as well as all three branches of government.Among those he mentored were President Obama, Chicago Mayor Rahm Emanuel, Supreme Court Justice Elana Kagan and Rep. Jan Schakowski (D-Ill.).

In 2014, Obama awarded the Presidential Medal of Freedom, the country’s highest civilian honor, to Mikva.

“When I was graduating law school, Ab encouraged me to pursue public service,” Obama said in a statement, according to the Tribune. “He saw something in me that I didn’t yet see in myself, but I know why he did it — Ab represented the best of public service himself and he believed in empowering the next generation of young people to shape our country.”

Mikva was born in 1926 in Milwaukee to Jewish immigrants from present-day Ukraine. He graduated from the University of Chicago Law School, and in a famous anecdote, was rebuffed by Chicago’s political machine in his first attempt to get involved in politics. When he visited a local campaign office, uninvited, to volunteer for Harry Truman’s 1948 reelection bid, an operative sent him away, saying, “We don’t want nobody nobody sent.”

He was first elected to the Illinois House of Representatives in 1956, and became a member of Congress in 1969. He served five terms in the House of Representatives until 1979, when President Jimmy Carter appointed him as a judge on the U.S. Court of Appeals for the District of Columbia. He served there for 15 years, including five years as chief judge. In 1994, President Bill Clinton made him White House counsel.

He is survived by three daughters and seven grandchildren.

Peres rues Israeli army’s killing of Jordanian judge

Israeli President Shimon Peres in a conversation with King Abdullah II of Jordan expressed Israel’s regret over the shooting of a Jordanian judge.

Peres, speaking by phone to Abdullah on Monday, offered his “deepest condolences” to the Jordanian people in the death of Raed Zeiter at the Jordan-Israel border crossing.

“As the President of the State of Israel, I would like to express compassion to the bereaved family; I share in their grief,” Peres said, according to a statement issued by his office. He added that “Israel attaches great importance to our relations with Jordan and the peace agreement between our two countries.”

The statement said Peres and Abdullah discussed the current peace negotiations between Israel and the Palestinians, and that their countries would establish a joint Israeli-Jordanian team to investigate the shooting death.

Last week, Israeli Prime Minister Benjamin Netanyahu’s office issued an apology to Jordan and said it would open a joint investigation.

The Israeli military said Zeiter attacked one of its soldiers and attempted to seize his weapon during a check at the border crossing before he was shot and killed by Israeli troops.

Also on Monday, Jordan condemned what it called “Israeli escalation” at the Al-Aksa Mosque on the Temple Mount in Jerusalem, the third holiest site for Muslims. The condemnation followed a day after seven Palestinians were arrested on the Temple Mount for rioting against a pre-planned visit by Israel’s construction and housing minister, Uri Ariel, who called for Jewish sovereignty over the site.

The Temple Mount is overseen by the Jordanian Muslim Wakf, the religious administration charged with managing the Temple Mount site, which is holy to Jews and Muslims. Jews generally are not permitted by the Wakf to pray or bring any ritual objects to the Temple Mount.

Israeli judge resigns after rape comments

An Israeli judge resigned from a government appeals board on Wednesday after public uproar over reports he had told a courtroom that some girls “enjoy rape.”

Nissim Yeshaya headed a three-member panel hearing a young Israeli woman's appeal for recognition as a victim of a nationalist attack for having been raped when she was 13, in a crime blamed at the time on four Palestinians.

He had remarked during a session on the case that “there are some young girls who enjoy rape”, an attorney representing the woman told Israeli radio stations on Wednesday.

The reports prompted swift calls from women activists and politicians for him to resign, followed hours later by a statement from the Israel Courts Authority saying Yeshaya had decided to quit.

It said he had “expressed his regret” for the remark, adding “he had had no intent to offend anyone or express an opinion”.

Justice Minister Tzipi Livni, the highest-ranking woman in Israeli politics, praised Yeshaya's decision to step down for what she called a “grave” expression of what she called “a twisted and unacceptable idea women have been fighting against for years, of blaming the victim for being raped”.

“Judges must also realize that when a woman says no that's what she means,” Livni said.

Writing by Allyn Fisher-Ilan; editing by Andrew Roche

Colorado judge accepts insanity plea from accused theater gunman

Accused Colorado theater gunman James Holmes, who could face execution if convicted of killing 12 moviegoers last summer, entered a plea of not guilty by reason of insanity on Tuesday, and a judge accepted his plea.

Holmes, 25, is charged with multiple counts of first-degree murder and attempted murder. He is accused of killing 12 people and wounding dozens more in a gun rampage inside a suburban Denver cinema during a midnight screening of the Batman film “The Dark Knight Rises” last July.

Holmes, seated with his lawyers, said little during the latest proceedings in Arapahoe County District Court, but he appeared attentive and answered “no” when the judge asked him whether he had any questions about the ramifications of his plea.

The judge, Carlos Samour Jr., had delayed ruling on whether to accept such an insanity plea until legal questions surrounding the matter were resolved.

Among those issues was a challenge to the state's insanity-defense law by public defenders. They argued that a provision of the statute that requires a defendant mounting an insanity defense to submit to an examination by court-appointed psychiatrists is unconstitutional.

Compelling a defendant to divulge information that could be used against him at trial and at sentencing violates his right against self-incrimination, they argued. But Samour upheld the law last week, setting the stage for Tuesday's hearing.

Prosecutors are seeking the death penalty for the former University of Colorado-Denver graduate student if he is convicted.

Public defender Daniel King said in court last month that defense psychiatrists had obtained a complete diagnosis on Holmes' mental illness.

Twice since his arrest, Holmes has been hospitalized, his lawyers said, once for apparent self-inflicted head injuries and again when he was held in restraints in a psychiatric ward.

At a preliminary hearing in January, before a judge ordered the defendant to stand trial, investigators testified that Holmes spent months amassing firearms and bomb making materials in preparation for committing mass murder.

At the same time he was assembling his arsenal, Holmes failed his oral examinations and was told by a university professor that perhaps he was not a good fit for his neuroscience doctoral program, prosecutors said.

Also expected to be decided at Tuesday's hearing is the issue surrounding a package Holmes sent to a university psychiatrist who treated him that was delivered to a university mail room two days after the killings.

A notebook included in the package sent to Dr. Lynne Fenton reportedly contained details of a planned massacre. Holmes' lawyers have argued that the package is protected by physician-patient privilege and should not be turned over to prosecutors.

Defense attorneys submitted numerous pre-trial pleadings that were made public on Tuesday, including a notice to the judge that they plan to seek a change of venue for the trial on grounds that pretrial publicity could prejudice the jury. They also asked the judge to sequester the jury.

Additional reporting by Alex Dobuzinskis; Editing by Steve Gorman, Cynthia Johnston and Grant McCool

Israeli judge who fled extradited from Peru

An Israeli judge who fled to Peru eight years ago following allegations of bribery and fraud was extradited to Israel.

Dan Cohen arrived in Israel on Sunday morning after he was arrested by Peruvian police and placed directly on an airplane leaving for Israel.

He has been fighting the extradition, which was approved in secret by the Peruvian government to prevent Cohen from going into hiding. The two countries do not have a signed extradition treaty.

Cohen is charged with of bribery, fraud, breach of trust, obstruction of justice and failure to report earnings.

Shangri-La juror said to have hidden her Jewishness

In court papers filed Jan. 7, attorneys for the Hotel Shangri-La in Santa Monica and its owner allege that of 12 members on the jury that unanimously found their clients guilty of discriminating in 2010 against a group of Jewish patrons, one juror concealed her own Jewishness during jury selection. 

The attorneys’ assertion appears in a 21-page memorandum supporting their motion for a new trial, one of a number of post-trial motions filed in recent weeks in the same Santa Monica courtroom where the jury’s unanimous verdict against the Shangri-La and its part-owner, Tehmina Adaya, was first handed down in August 2012. 

In the memorandum, the hotel’s attorneys state that the judge who presided over the trial made errors in law, that the evidence presented was insufficient to justify the final verdict and that the damages awarded by the jury to the 18 plaintiffs — more than $1.6 million in all — were excessive. 

But of all the arguments advanced in the memorandum, the lawyers’ assertions about “misconduct” behind the closed door of the jury room stand out. 

According to the memorandum, Juror No. 7, identified as Yerha Vasquez, “failed to disclose her religious background, Jewish, during voir dire,” the process of jury selection that takes place before a trial begins, which lasted more than three full days before the Shangri-La trial officially commenced. 

The hotel’s lawyers cite another juror as the source for this assertion. In a three-page declaration also filed in court by the defense, juror Debra Clint says that Vasquez “often cried during deliberations about her pain and her past history.” 

Clint’s declaration does not include any mention of Vasquez’s religion.

Steven Richman, a partner in the firm Epport, Richman & Robbins, LLP, who joined the legal team defending the Shangri-La and Adaya after the conclusion of the trial, would not say how he first became aware of Clint’s concerns about what took place in the jury room, but he stood by the memorandum’s claim about Vasquez’s concealing her Jewishness. 

“She [Vasquez] did not disclose her religion or the fact that she believed that she had been harassed before,” Richman said in an interview with the Journal on Jan. 10. 

Clint, who signed her declaration on Nov. 21, 2012, also complained about another juror, identified only as “Ms. Schellpfeffer.” Clint describes Schellpfeffer as “aggressive, forceful and outspoken during deliberations,” and also makes the claim that Schellpfeffer came into deliberations wanting to “ ‘stick it to’ the Defendants.” 

Clint’s statement alleges that Vasquez “aligned herself with … Schellpfeffer, and agreed and voted with Ms. Schellpfeffer on whatever Ms. Schellpfeffer said.” 

The defense memorandum describes Schellpfeffer’s conduct as “a manifest refusal to deliberate,” but one juror’s allegedly dominating deliberations may not be sufficient grounds for a judge to grant a new trial, according to an expert on the topic. 

“That’s not a basis for overturning a verdict,” Erwin Chemerinsky, founding dean of the law school at University of California, Irvine, said. “There’s nothing wrong with that.”

In their memorandum, the defense attorneys presented other reasons to grant a new trial. They argue that because the organization with which the plaintiffs were affiliated, the Los Angeles-based young leadership division of the Friends of the Israel Defense Forces, is not a religious group, the Unruh Civil Rights Act should not apply to them. 

James H. Turken, the managing partner of Dickstein Shapiro LLP’s three offices in California who represented the plaintiffs at the original trial, disputed the defense’s interpretation of the Unruh Act. 

Because Adaya is said to have instructed her staff to remove “the [expletive] Jews” from the Shangri-La’s pool, Turken said the identity of the organization sponsoring the party that Adaya disrupted is irrelevant. 

“They could’ve been there with the United Way,” he said. “If they were Jewish people and she made that comment, that would be a violation of the Civil Rights Act.”

The defense’s motion for a new trial is scheduled to be heard in court on Jan. 31.

Leiby Kletzky’s killer sentenced to 40 years to life

Levi Aron, the Brooklyn store clerk who pleaded guilty to killing 8-year-old Leiby Kletzky, was sentenced to 40 years to life in prison.

Aron, 37, was sentenced Wednesday in Brooklyn Supreme Court. He did not address the court.

He pleaded guilty earlier this month to kidnapping, killing and dismembering Leiby near his home in the Borough Park section of Brooklyn in July 2011. Aron’s attorney at first had attempted to pursue an insanity defense; Aron reportedly has a history of mental illness.

Leiby’s family did not attend the sentencing, The Associated Press reported. A statement from his father, Nachman Kletzky, that was read in court said that “God did not abandon our son nor our family for one second.”

Leiby, making his first attempt to walk home alone from camp, had stopped to ask Aron for directions and entered his car. Less than 48 hours later, the search for the boy came to a grisly conclusion when parts of his dismembered body were found in the freezer of Aron’s apartment in the nearby Kensington section of Brooklyn.

Judge won’t allow parents to take custody of Nazi-named children

A New Jersey couple who gave their children names linked to Nazism cannot have custody of their children, a judge ruled.

The children of Heath and Deborah Campbell have been in state custody for the last three years, since a local supermarket refused to print Adolf Hitler Campbell’s full name on a cake for his third birthday. The boy, now 6, and sisters adolfJoyceLynn Aryan Nation Campbell, 5, and Honszlynn Hinler Jeannie Campbell, 4, remain in state custody, and the state also took custody in November of a newborn boy named Hons, according to UPI.

A Superior Court judge in New Jersey decided last week that the couple cannot regain custody of the children.

The Campbells plan to appeal the ruling and Heath Campbell told the Star-Ledger newspaper that he would give up his Nazism to regain custody of the children. He and his wife are now separated.

Judge rejects Demjanjuk claim that documents withheld

A federal judge in Cleveland rejected a claim by convicted Nazi war criminal John Demjanjuk that U.S. prosecutors withheld documents that could have helped his case.

U.S. District Judge Dan Aaron Polster ruled Tuesday that a 1985 FBI memo that questioned the legitimacy of a Nazi identification card placing Demjanjuk at the Trawniki guard camp was immaterial to his case.

Polster said that because internal FBI documents are merely speculative, they did not need to be turned over to the defense, according to the Cleveland Plain Dealer. He also said that Demjanjuk “willfully lied about his whereabouts during the war,” which led to the revocation of his U.S. citizenship.

Federal public defender Dennis Terez had claimed that prosecutors withheld documents that could have helped Demjanjuk’s case. Terez had asked the judge to order a hearing to determine why prosecutors did not turn over the 1985 memo and to allow Demjanjuk, now 91, to return to the United States in order to defend himself.

Demjanjuk, a retired Cleveland-area autoworker, was extradited to Germany in 2009 to face charges of being an accessory to more than 28,000 deaths at the Sobibor Nazi concentration camp. A Munich court in May found Demjanjuk guilty of war crimes and sentenced him to five years in prison; he is residing in a German nursing home while the case is appealed.

Demjanjuk is stateless and has no passport. He cannot enter the United States unless Polster decides to overturn a 2002 denaturalization order. Demjanjuk’s citizenship was revoked for lying about his Nazi past to gain citizenship. The U.S. government has asked Polster not to reopen the citizenship case.

In the early 1980s, Demjanjuk was accused of being the notorious guard “Ivan the Terrible” at the Treblinka death camp. He was deported to Israel in 1986 and sentenced to death in 1988, but the Israeli Supreme Court overturned his conviction in 1993 after finding reasonable doubt that he was the guard in question.

“Holocaust survivors welcome the court’s decision and are relieved that this convicted war criminal will not set foot in the United States again,” said Elan Steinberg, vice president of the American Gathering of Holocaust Survivors and their Descendants. “Demjanjuk lied to get into this country and his ongoing efforts to cover up his terrible past have been foiled.”

Judge: Not enough evidence to convict mosque arson suspect

A Petach Tikvah judge gave police five days to produce evidence that a West Bank Jewish man burned a mosque in northern Israel.

Magistrate Court Judge Nitza Maimon agreed Tuesday to extend the 18-year-old suspect’s remand until Sunday, but said there is not enough evidence now to convict him of the Oct. 2 torching of the main mosque of the Upper Galilee Bedouin-Arab town of Tuba Zanghariya. The suspect, who is from northern Israel, reportedly studied at a West Bank yeshiva. He was arrested hours after the arson attack.

The judge said that if no new evidence is produced, she will order police to release the suspect.

A second suspect has been arrested in connection with the attack. Few details have been released about the second suspect, who reportedly is a resident of the West Bank. He appeared Monday in a Tel Aviv court and his remand extended.

Both suspects are suspected of “direct involvement” in the arson attack, Israel police spokesman Micky Rosenfeld told news agencies.

Judge pulls himself out of kosher vendor suit against Mets

A federal judge reportedly has recused himself from a lawsuit brought by a kosher vendor against the New York Mets.

Brooklyn Magistrate Judge Andrew Carter stepped down from the case after the lawyer for Kosher Foods Inc., which is suing the Mets for preventing the company from selling kosher hot dogs at CitiField on Friday nights and Saturday, saw him wearing a Mets cap outside of the courthouse, the New York Daily News reported Wednesday.

The newspaper had reported last weekend that the attorney for Kosher Foods had expressed concern to Carter over a possible bias in the case because the judge had been wearing the cap and a tie in the Mets’ colors, blue and orange.

Judge rules Rahm Emanuel’s name can appear on Chicago ballot

NYTIMES: Rahm Emanuel cleared another hurdle in his bid for mayor of Chicago on Tuesday when a Cook County judge agreed with the city’s election board that his name should appear on the ballot.

The judge, Mark J. Ballard, upheld the election board’s decision that Mr. Emanuel met the one-year residency requirement for mayoral candidates. Several objectors have said that Mr. Emanuel gave up his residency when he worked in Washington as President Obama’s chief of staff until last fall.

In a written ruling, Mr. Ballard said that he agreed with the election board’s conclusion that Mr. Emanuel “intended to remain a Chicago resident during his temporary absence, and did not, therefore, abandon his Chicago residency.”

Read the rest of the story at NYTimes.com.

Schindler’s List can be sold, judge rules

A Manhattan judge has ruled that an original copy of Schindler’s List can be sold.

New York State Supreme Court Justice Louis York ruled last week that dealer Gary Zimet may auction off what is believed to be the only privately held original copy of Oskar Schindler’s list of Jews, which saved more than one thousand Jews from the Nazis during the Holocaust.

Zimet, a historic document sales specialist in upstate New York, announced in March that he would sell the document on behalf of an anonymous seller, offered on a “first come, first serve” basis on his Web site, MomentsInTime.com.

Marta Rosenberg, an Argentine woman who wrote a biography of Schindler and his widow, Emilie, contends that the will of Schindler’s widow gives Rosenberg the exclusive rights to anything that belonged to the couple. She also alleged that the list was a fake.

The list, dated April 18, 1945, is 13 pages and contains 801 names. It was compiled by Schindler and his accountant, Itzak Stern, and made famous decades later in the Oscar-winning film “Schindler’s List.”

Several copies of the list were written; the four surviving original lists are in the U.S. Holocaust Memorial Museum in Washington, the German federal archives in Koblenz and two at the Yad Vashem Holocaust memorial in Jerusalem.

Judge sanctions Eden Memorial owner over evidence tampering

A Los Angeles judge has sanctioned Service Corporation International (SCI), owner of Eden Memorial Park in Mission Hills, after finding that the cemetery intentionally tampered with and destroyed evidence related to a class action lawsuit alleging that Eden mishandled human remains.

Judge Anthony J. Mohr of the Los Angeles Superior Court ordered that the plaintiff’s attorney will be allowed to present evidence to the jury showing that SCI willfully tampered with evidence, and the judge will inform jurors that they may reasonably conclude that the destroyed evidence could have been damaging.

The judge declined the plaintiff’s motion to automatically find SCI liable.

A spokeswoman for SCI said the company disagrees with the judge’s order and its attorneys are exploring options. SCI, based in Texas, is one of the country’s largest operators of funeral and cemetery services, with 1,500 funeral homes and 400 cemeteries.

About 40,000 people are buried in Eden, which owns 72 acres, a good portion of it still unused. The cemetery, at Sepulveda Boulevard and Rinaldi Street, has been in operation for more than 50 years. SCI purchased Eden in 1985.

The case is now in the discovery phase and is set to go to trial at the end of 2011.

Attorney Michael Avenatti of Eagan O’Malley & Avenatti in Newport Beach filed a class action suit against SCI in September 2009, alleging that the cemetery broke concrete vaults to squeeze more graves into small spaces, and that when bones fell out of the broken vaults, groundskeepers were instructed to discard the remains in the cemetery dump.

The suit also alleges that Eden secretly buried bodies in the wrong plots and misplaced or lost remains.

F. Charles Sands, whose family is buried at Eden, and 30 other people are the named plaintiffs on the suit, and more than 1,100 families have retained Avenatti’s services.

SCI has maintained that while there were a few cases of irregularities in 2007, family members were immediately informed and the situation was handled properly and respectfully. It denies allegations of any broad wrongdoing and maintains that it follows protocol and properly handles human remains.

In November 2009, California’s Cemetery and Funeral Bureau reported that it found no proof that Eden was willfully engaged in grave desecration. Avenatti said the report, based on old audits and no new visits, does indeed hold proof of wrongdoing.

That report is but one piece of evidence in the lawsuit.

In September 2009, the court ordered the cemetery to preserve all evidence related to the case and provide documentation of any new damage to burial vaults or graves.

But soon after, SCI market director James Biby ordered Eden to clean up the cemetery dump, a fact that SCI doesn’t deny, according to the judge’s order.

Eden general manager Anthony Lampe then told the grounds superintendent “to get ‘the evidence,’ [his word], retrieve it, put in a dumpster, and have it taken off the property,” according to testimony cited by the judge in his order.

SCI claimed the dump clean-up was simply an effort to make the grounds look better. The plaintiff’s investigators recorded a video of the two-day cleanup of the dump, which had never been cleaned in its 20 years of use, according to the judge’s order. The judge said the video showed workers hand-picking concrete pieces out of the area.

In another instance, according to the judge’s order, the cemetery did not inform the court when, in March 2010, it found pieces of a broken vault in a section that used to be the cemetery dump. Rather, groundskeepers covered over that evidence with a new grave. SCI lawyers maintained that because the vault was not broken on that day, it did not fall under the judge’s order.

The judge’s order allowing attorneys to prove to jurors that SCI intentionally tampered with evidence could strengthen the plaintiffs’ case even without physical evidence. The plaintiffs’ case relies heavily on testimony from current and former employees.

The court also gave the plaintiffs extra time in examination and cross-examination, as well as in opening and closing arguments. The sanction bars the defendant from arguing during the trial that the plaintiffs lack physical evidence to support their allegations.

Judge denies Easter Mass for Jewish girl

A court in Chicago has ruled that a father may not take his Jewish daughter to Catholic Mass on Easter.

Joseph Reyes grabbed headlines when he took his daughter to church and had her baptized despite a temporary restraining order filed by his estranged wife that bars him from exposing their daughter to anything but the Jewish faith.

On Wednesday, during divorce proceeding hearings, Reyes asked Cook County Court Judge Renee Goldfarb if he could take his daughter, Ela, to Catholic Mass on Easter Sunday. The judge denied his request, citing the restraining order.

The judges’ final ruling in the divorce case is expected to be delivered in a couple weeks. 

Reyes converted to Judaism when he married his wife, Rebecca, and according to her promised to raise their daughter in the Jewish faith. But after the couple filed for divorce he baptized Ela without his wife’s knowledge.

Life story, Israel trips tie Sotomayor to Jews

Jewish groups don’t endorse U.S. Supreme Court nominees, at least in writing.

The tears and choked sobs when Sonia Sotomayor accepted President Obama’s nomination on Tuesday told another story.

Packed into the room along with Sotomayor’s family, friends and colleagues were representatives of Jewish groups that have consulted with the White House about prospective replacements for David Souter.

The story of her life—the daughter of a Puerto Rican single mother from the Bronx, N.Y., whose ambitions knew no bounds—resounded with a community that has made the story of immigrant triumph over struggle a template of Jewish American success.

“It was impossible not to moved by her personal story,” said Mark Pelavin, the associate director of the Reform movement’s Religious Action Center. “To see her mother sitting there and think about what this says about her and her country—the combination of someone who grew up in a housing project, who has been on the bench for a long time, but who has been a prosecutor as well, that combination is very powerful.”

“It was thrilling,” said Sammie Moshenberg, the Washington director of the National Council of Jewish Women.

It doesn’t hurt that Sotomayor, 54, is a poster child for strong Jewish-Hispanic relations. In 1986, when she was in private legal practice, she joined one of the first young leadership tours of Israel sponsored by Project Interchange, which is affiliated with the American Jewish Committee.

Sotomayor so enjoyed the country—its immigrant culture, its popular music influenced heavily by Jewish immigrants from Argentina and Brazil—that she made a return visit in 1996 when she was a federal judge, and recently joined a Project Interchange U.S.-Israel forum on immigration. In the process, she formed a lifelong friendship with Project Interchange founder Debbie Berger and her husband, Paul, who attended her swearing-in as a Manhattan appeals court judge in 1998.

“She enjoyed Israel not just from an intellectual perspective, she liked the music and the people,” Paul Berger told JTA.

Richard Foltin, the legislative director for the AJC, said her background naturally played a role in how the Jewish community would welcome her.

“We must recognize the significance of the third woman and first Hispanic on the court,” he said. “And there’s no question of her impressive qualifications.”

Sotomayor would come to the Supreme Court with one of the longest bench careers in its history, having handed down or joined 3,000 decisions in 18 years as a federal and appeals court judge. That’s a lot to read through and accounted for a degree of hesitancy from Jewish groups that were enthused about her life story but just getting to know her judicial record.

“I’ve got a bunch of opinions in my briefcase and it’s time to start reading,” Pelavin said.

The National Council of Jewish Women—one of the few Jewish groups that expresses an opinion on judicial candidates—has yet to announce where it stands. Whatever the case, said Nancy Ratzan, the NCJW’s president, the organization would dedicate itself to ensuring that Sotomayor receives a fair hearing.

“Our 90,000 followers will be focused on making sure it’s a fair and prompt process that focuses on her record,” she said.

NCJW and the Religious Action Center will canvass members for appropriate questions for Sotomayor during the confirmation process; the questions will be relayed to the U.S. Senate Judicary Committee.

Leaders of the Anti-Defamation League issued a statement calling for a process that is conducted “professionally, and with civility and respect,” and praised the pick while stopping short of an official endorsement.

“We applaud President Obama for having selected this noted jurist to be the Court’s first Hispanic and third woman Justice,” the ADL leaders stated. “If confirmed, she will undoubtedly bring an important new perspective to the work of the Court.”

Even the Orthodox Union, which tends to stake our more conservative ground than other Jewish organizations on church-state issues, spoke positively about Sotomayor, citing several religious freedom-related cases.

In a 1993 case, she upheld the constitutional right of a rabbi in White Plains, N.Y., to display a menorah in a city park. In two other cases, in 1994 and 2003, Sotomayor upheld prisoners’ religious rights even though the practices in question did not conform with mainstream beliefs. And in 2006, she ruled that allowing federal age discrimination statutes to apply to a 70-year-old minister dismissed by the Methodist church would constitute unwarranted government interference in church affairs.

Those decisions, OU said, were “very encouraging.”

Marc Stern, the legal counsel for the American Jewish Congress, predicted that Sotomayor’s long bench experience ultimately will be a plus. More time on the bench shaping reasoned opinions made her less of a target than other nominees—like Lani Gunier, Robert Bork and Samuel Alito—whose years pushing intellectual boundaries in the halls of academe handed fodder to opponents seeking controversial statements.

Additionally, the 2nd Circuit of Appeals—based in Manhattan and covering New York, Connecticut and Vermont—deals with cases emerging from courts and legislatures that already trend liberal. That means it is less likely to address issues such as abortion and discrimination that often exercise Jewish groups.

“There’s no track record that anyone can point to,” Stern said. “There’s not likely going to be a whole lot there as a smoking gun.”

Is a delay of justice a denial of justice?

It is not every day that a former regional president of the Anti-Defamation League rides to the rescue of alleged Palestinian terrorists. Yet that is precisely what happened on
Jan. 30, when Los Angeles immigration judge Bruce J. Einhorn, in a stinging rebuke to the federal government, terminated deportation proceedings against two men who were arrested more than 20 years ago because of their alleged ties to a Palestinian terrorist organization.

Unless appealed, Einhorn’s decision will finally bring an end to the government’s decades-long campaign to deport Khader M. Hamide and Michel I. Shehadeh — two men who have been lawful, permanent residents of the United States for more than 30 years and whose children are U.S. citizens. Their case has reached every level of federal court, including the U.S. Supreme Court.

The government has been seeking to deport Hamide and Shehadeh since January 1987, based on their alleged support for the Popular Front for the Liberation of Palestine (PFLP), a radical offshoot of the Palestine Liberation Organization that has taken credit for airline hijackings and car bombings in the Middle East. The two men, along with six others who became known as the L.A. 8, have all denied membership in the PFLP, while steadfastly maintaining that they were being persecuted for lawful political activities — distributing newspapers, participating in demonstrations, assisting Palestinians with human rights and medical needs and raising money for hospitals, youth clubs and day-care centers.

Such activities would clearly be constitutionally protected if undertaken by U.S. citizens. The government has never alleged that any of the L.A. 8 were connected to the PFLP’s terrorist activities.

Of the other six members of the group, one became a citizen, three obtained permanent residency status, one is seeking permanent residency status and the sixth returned to Bethlehem.

Since the outset of its case, the government has argued that lawful, permanent residents such as Hamide and Shehadeh were not entitled to the same constitutional free speech rights as those of U.S. citizens. In doing so, the government initially invoked the now-repealed McCarran-Walter Act that had been used during the McCarthy era to deport immigrants who embraced communism.

The government also asserted that providing humanitarian aid to an organization that both sides agreed had “engaged in terrorist activities” from 1984 to 1986 was the kind of “material support” that warranted deportation. Finally, government lawyers twice persuaded Congress to change federal laws and to apply them retroactively in order to allow for the deportation of those whose activities were lawful at the time they occurred.

Prior to Einhorn’s decision last month, the immigrants had won a number of important rulings, including a 1998 federal appeals court opinion that the Constitution does not permit “guilt by association” and that their deportation could not proceed unless the government demonstrated that the men intended to support the “illegal group goals of the PFLP.”

Einhorn’s January ruling terminating these deportation proceedings arose from the government’s persistent refusal to disclose “any potentially exculpatory evidence” in its possession — a violation of the judge’s June 2005 pretrial order.

In his 11-page opinion, Einhorn wrote: “The repeated actions of the government in not complying with the court’s orders have prevented respondents [Hamide and Shehadeh] from obtaining fair hearings and closure in their cases. The attenuation of these proceedings is a festering wound on the body of these respondents and an embarrassment to the rule of law.”

Unless such a “gross failure” has consequences, Einhorn colorfully observed that “an immigration judge is reduced to the status of a Blanche DuBois, who must rely on the kindness of strangers. Such status would gut the statutory and regulatory scheme of deportation proceedings.”

Einhorn, who previously served for more than a decade in the Justice Department’s Office of Special Investigations, where he worked to identify and prosecute Nazi war criminals who resided illegally in the United States, was obviously perplexed by the government’s misconduct.

“A reasonable argument could be made,” he wrote, “that if Hamide and Shehadeh have engaged in terrorist activity, particularly in the context of today’s world, then the government would be prepared to move heaven and earth — not to mention some mounds of paper — to complete the trial and deportation of these respondents.”

Einhorn concluded that the government’s “protracted failure” constituted a violation of the immigrants’ constitutional due process rights.
The only immigration matter in all of U.S. history that has lasted longer than the L.A. 8 case was the deportation proceedings against Carlos Marcello, a reputed New Orleans crime boss, which started in 1953 and lasted 30 years.

Marcello was briefly deported but died a free man in Louisiana in 1993. It remains possible that the case against Hamide and Shehadeh could drag on still further.

Einhorn’s decision to terminate these deportation proceedings is undoubtedly correct — both legally and morally — and should not be appealed. It is long past time for the federal government to abandon its decades-long persecution of these immigrants and its concurrent legislative and judicial efforts to exempt lawful U.S. residents from the protection of the Constitution. As Einhorn himself observed, the rule of law is tested not by its ability to protect “those we love” but by whether it protects “those we loathe.”

Douglas Mirell, a Los Angeles attorney, is a founder and first vice president of the Progressive Jewish Alliance, www.pjalliance.org.

Community Brief

Discrimination Suit Tossed Out

A federal judge has dismissed a lawsuit in which tenants alleged a Jewish landlord evicted them for sharing their apartment with a non-Jew. U.S. District Court Judge Gary Allen Feess threw out the lawsuit on technical grounds, saying the tenants should have raised the discrimination claim in an earlier legal proceeding.

The suit by Lawrence “Chaim” Stein alleged that he was wrongly evicted in 2004 by the board of Torat Hayim, a nonprofit that manages a Pico-Robertson school and synagogue as well as a handful of apartments.

Stein, who is Orthodox, was sharing the apartment with a non-Jewish friend. Stein’s central piece of evidence was a voice mail left by one of the defendants that seemed to chide him because he “rented to a goy.”

The trial never got that far because of how Stein handled the initial appeal of his eviction. Stein got his eviction overturned on a rent-control issue, but his court papers omitted the discrimination claim. By the time he won the appeal, Stein was living elsewhere and his old apartment, in the 8800 block of Alcott Street, had new tenants. Thus, getting back the apartment was a moot issue, but Stein decided to raise the discrimination claim in federal court and pursue damages.

Feess wouldn’t go for it.

“Whether or not a claim was actually litigated in a prior dispute, it cannot be raised in a second suit if it was within the scope of the prior dispute,” Feess wrote in his decision.

“He should have appealed on all the grounds” raised in the initial eviction, including discrimination, said Stacy Sokol, an attorney who is authorized to speak for Torat Hayim even though Sokol did not handle the court case.

“You don’t get a second bite at the apple,” said Sokol, who asserted that the real reason was eviction was nonpayment of rent.

Stein’s attorney, Raymond Zakari, criticized the ruling.

“Evictions are summary proceedings for landlords to recover possession of their real property, not a forum for these issues,” Zakari said. — Bobbi Murray, Contributing Writer

Anti-Jewish Rally Fizzles

A handful of neo-Nazis was outnumbered and out-shouted at what they called a “rally for justice and peace” outside the Simon Wiesenthal Center on July 29.

A Holocaust denial group, the Newport Beach-based Institute for Historical Review, staged the noon rally outside the center’s Pico Boulevard headquarters, across the street from the Museum of Tolerance. The event attracted no more than eight Holocaust deniers and neo-Nazi supporters. The crowd also included Orthodox high school boys who absorbed the event’s mosh-pit energy, anti-Nazi socialists and anti-they-were-not-exactly sure-what progressives.

The intersection at Pico Boulevard and Doheny Drive eventually became balkanized. Some media, six cops and the neo-Nazi/Holocaust deniers occupied the corner in front of the Wiesenthal Center.

Another corner held those who were both anti-Nazi and anti-Israel. One woman shouted: “Everyone who is not a Holocaust denier but is against what Israel stands for — go across the street!”

A Jewish Defense League contingent stood at a third corner, and at the fourth corner were assembled about seven pro-Israel/anti-JDL Jews.

The half-dozen JDL members were the most volatile; one hit a young protestor with a long Old Glory flagpole. Police are investigating that alleged battery.

Two African American women accepted and carried anti-Israel placards from Holocaust deniers, who denied that they were Holocaust deniers. Seeing this, an elderly Jewish women shouted: “Go back to the South!” The sight of Jews yelling at blacks prompted smiles among the Holocaust deniers.

The women returned the placards after getting more information about the protest organizers.

The event fizzled within one, loud hour. — David Finnigan, Contributing Writer

Vigil for Darfur Draws 500-Plus

More than 500 people attended a late July vigil at the Federal Building in Westwood, where Jews and non-Jews held a candlelight protest against the ongoing genocide in Sudan’s Darfur region.

“Folks, time is running out,” said Armenian American activist Armen Carapetian, who likened the situation in Darfur to the past century’s Armenian genocide.

The early evening rally signified an expansion of Darfur activism in the Jewish community, spurred on by Jewish World Watch, based at Valley Beth Shalom temple. The Conservative Encino shul’s leader, Rabbi Harold Shulweis, was among the speakers, who also included Rabbi Sharon Brous of the Westside IKAR congregation.

“I don’t want to stand here next summer,” Brous said, “and say, ‘Another year has gone. What have we done?'”

Human-rights experts estimate that 300,000 villagers have been killed since 2003 by Arab janjaweed horsemen tacitly supported by the Sudanese government.

The drive-time rally was a little smaller and more secular than a day of fasting held on May 26, when about 600 Southern California Jews attended Darfur events at synagogues in Pico-Robertson, Bel Air and Pasadena. Sponsors of the event at the Federal Building included Protestant, African immigrant, Catholic and Armenian groups.

Participants took part in making murals, singing and playing instruments and signing White House-bound petitions.

“It’s my sister’s birthday, and she asked that we all come here for this,” said Sarah Ham-Rosbrock, whose family, including her 28-year-old sister Lena, attends Temple Israel of Long Beach.

“I’m involved because I am black,” said homeless activist Ted Hayes, a speaker.

Progressive Jewish Alliance board member Eric Greene said Jews must be more involved in non-Jewish issues such as Darfur, even when the effort seems futile.

“It’s so daunting because it feels so big that it’s hard to know what you can do,” he said. — DF


Roberts Draws Little Jewish Opposition

So far, the nomination of Judge John Roberts to the U.S. Supreme Court has ruffled few feathers in the American Jewish community.

Many Jewish organization leaders were poised to fiercely oppose a conservative nominee — and to earmark resources to influence senators who must confirm him — but many have decided to wait until after Roberts’ confirmation hearings before determining whether to officially endorse or oppose him.

That’s despite the fact that delaying any initiative to oppose Roberts likely would lessen its impact, compared to a push before the hearings, which are scheduled for later this summer.

Groups that have a high standard for speaking out against a nominee say that, barring unforeseen circumstances, they won’t advocate against Roberts.

Most Jewish groups have taken a step back since Roberts was nominated July 19, acknowledging that his views on issues — to the extent that they’re known — are within what the groups consider acceptable bounds for a Supreme Court justice. At the same time, they say that not enough is known about Roberts’ legal ideology to judge him before the confirmation hearings.

Many suggest that President Bush’s selection of Roberts may have been designed to avoid an immediate fight — and that Bush’s choice may even have been influenced by the fact that Jewish groups and other liberal advocates were ready to oppose an archconservative.

“He picked someone we’re going to have to take a close look at the record on,” said Rabbi David Saperstein, director of the Washington, D.C.-based Religious Action Center for Reform Judaism. “It wasn’t someone who is so well known or controversial beforehand that folks would have lined up against him in advance.”

Roberts served on the U.S. Court of Appeals for the District of Columbia Circuit for just two years. He also has a body of work from his four years as deputy solicitor general under the first President Bush, but it’s unclear how much can be made of his writings in that post, because he was advocating for a client — the federal government — and not expressing his personal views.

One organization already has announced its opposition to him: The National Council of Jewish Women (NCJW) says Roberts has worked to erode fundamental rights, including abortion rights. They cite a brief he authored in the Solicitor General’s Office, advocating the overturning of Roe v. Wade, the landmark 1973 case that legalized abortion. The NCJW also opposed Roberts when he was named to the appellate court in 2003.

While Roberts is more conservative than most of the Jewish community on issues such as abortion and church-state separation, he is well-respected as a legal mind. In addition, his personal views on the controversial issues of the day are less clear than those of past nominees, such as Robert Bork, who was nominated to the Supreme Court in 1987.

Bork, whose nomination was rejected by a Democrat-controlled Senate, raised the ire of many Jews. Analysts say it’s unlikely Roberts’ confirmation will be as contentious.

Before the nomination was announced, Jewish organizations and other groups were bringing pressure on the Anti-Defamation League (ADL) and the American Jewish Committee (AJC), two groups that largely avoid nomination battles, to weigh in. That pressure has eased in the past week. Both the ADL and the AJC said it would take extreme circumstances for them to weigh in on Roberts.

Meanwhile, Republican Jews have been working to sell the nominee. The White House has been reaching out to Jewish leaders to gauge concerns, and, thus far, hasn’t heard serious qualms or hints of fierce resistance, sources said.

The White House also expressed hopes that Orthodox organizations might come to Roberts’ defense if his devout Catholicism becomes an issue. An opinion piece in Monday’s Los Angeles Times by a law professor at George Washington University suggested that Roberts would be torn between constitutional law and Catholic dogma on questions such as abortion or the death penalty.

Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, said his group would work to ensure that there’s no religious litmus test for judges.

“If senators are suggesting they are going to inquire whether John Roberts is fit for office on the basis of his devout Catholicism, then we are going to say loudly and clearly: ‘That’s offensive and unconstitutional,'” Diament said.

The Republican Jewish Coalition (RJC) also circulated an e-mail highlighting Roberts’ comments during his 2003 confirmation hearings, in which he called the Supreme Court’s position on Roe v. Wade “binding precedent.”

“He was very clear that he was not necessarily representing his own views; he was representing the views of his client,” said Matthew Brooks, the RJC’s executive director.

The RJC’s e-mail seems to challenge what many of Roberts’ advocates have been saying about his abortion rights views, especially to the White House’s conservative base. While conservatives claim that Roberts opposes abortion, the RJC’s message to the Jewish community is aimed at mollifying pro-choice Jews, including Republicans.

Brooks said he would not rule out an advertising campaign in support of Roberts.


Pollard Lawyers Get Day in Federal Court

Sept. 2 is going to be a big day for Jonathan Pollard: The American Jewish spy is going to get another day in court.

Pollard’s lawyers will have 40 minutes in a federal courtroom to explain why they should be permitted to continue efforts to rescind the life sentence he received 18 years ago for committing espionage for Israel.

Years of tenacious motions by attorneys Jacques Semmelman and Eliot Lauer either have been vigorously opposed by government attorneys or allowed to languish in the court.

Now U.S. District Court Judge Thomas Hogan has granted a hearing to Pollard and his attorneys — who are working on the case pro bono. Semmelman and Lauer will get 30 minutes to argue why they should be permitted to appeal, the government can take a half hour to respond and then Pollard’s attorneys will be granted 10 minutes for the last word.

So pivotal is the hearing that the judge has ordered federal prison officials in Butner, N.C., to shuttle Pollard to the U.S. District Court in Washington for the event. Prison officials said they are uncertain whether U.S. marshals would fly Pollard to the nation’s capital or drive.

"Normally, we drive them for a mere six-hour trip," a prison representative said, "but a high-profile prisoner like Pollard might be flown."

He added that arrangements would be made for Pollard’s kosher meals.

Despite mounds of legal briefs and well-researched citations, Pollard’s hearing boils down to two issues:

  • Was the ex-naval intelligence officer convicted in March 1987 on the basis of a misleading secret 46-page affidavit?

  • Was he denied due process by a defense attorney who declined to file a routine appeal after Judge Aubrey Robinson stunned Pollard and threw a crowded courtroom into pandemonium with an unexpected life sentence? The life sentence violated the prosecutor’s plea agreement to not ask for life in exchange for Pollard’s cooperation.

Then-Secretary of Defense Caspar Weinberger submitted the secret affidavit at virtually the last minute at Robinson’s personal request. In the affidavit, Weinberger wrote: "It is difficult for me, in the so-called ‘year of the spy’ to conceive of a greater harm to national security."

The message, backed up with some 20 classified documents, was clear: Give Pollard a life sentence — regardless of the written plea agreement.

Fifteen years later, Weinberger conceded that "the Pollard matter was comparatively minor. It was made far bigger than its actual importance." Pressed on why this was so, Weinberger replied, "I don’t know why — it just was."

Attorneys Semmelman and Lauer have been filing motion after motion to see the supposedly secret documents so they can adequately appeal. But their efforts have been denied on the grounds of national security, even though they have been granted the necessary security clearances. Semmelman is a former U.S. attorney. The documents concern sources and methods used two decades ago, before the proliferation of personal computers.

The second question asks whether Pollard was denied due process on account of "ineffective assistance of counsel," according to the motion.

Pollard’s attorney at the time, Richard Hibey, has been widely criticized for inaction. He failed to object when prosecutors violated the plea agreement and asked for life, failed to call for an evidentiary hearing on Weinberger’s secret affidavit and then — to the surprise of most observers — declined to file the routine notice of appeal in the 10 days allotted.

For years, Hibey has dodged all questions on his representation of Pollard.

Despite the hearing, there are few prospects for a Pollard release in the immediate future.

Even if Semmelman and Lauer were granted the opportunity to appeal — consistently denied because Hibey failed to file the 10-day notice — it might take another year or two for any decision.

Pollard already has served far longer than the average for people convicting of spying either for enemies of the United States or it allies.

Judges Facing Judgment Day

It is a simple enough question: yes or no? Voters on Nov. 5 will answer the question many times, and the independence of California’s judicial system depends on the answer.

Justices for the California Supreme Court and Court of Appeal are appointed for 12-year terms by the governor. They are confirmed by a committee consisting of the chief justice of the Supreme Court, the attorney general and the presiding justice of the Court of Appeal. If a judge is appointed to serve the remaining term of a retiring or deceased judge, or when the judge has finished a 12-year term, the jurist must be approved in an election in order to remain on the bench.

Among the judges up for retention on the Nov. 5 ballot are a handful of Gov. Gray Davis appointees with close ties to the L.A. Jewish community.

Appellate Court Justice Richard Mosk of the 2nd District (Los Angeles and Ventura counties) is active in the community. He is the son of former state Supreme Court Justice Stanley Mosk, who died in June 2001. Justice Carlos Moreno, who was named to Stanley Mosk’s seat on the Supreme Court, is up for vote as well.

Other Appellate Court justices on the ballot include Steven Perren, whose Jewish community involvement includes a stint as assistant cantorial soloist at Ventura’s Temple Beth Torah; Dennis Perluss, who is married to Rabbi Emily Feigenson of Leo Baeck Temple; and Laurence Rubin, who began his legal career as a law clerk for Justice Stanley Mosk .

Laurie Levenson, a professor at Loyola Law School and director of its Center for Ethical Advocacy, said of the Nov. 5 retention vote, "This is a gimme. All of these justices should be retained."

Levenson, who also serves on the Los Angeles County Bar Association’s Judiciary Committee, added, "I’m somewhat troubled by the concept of electing judges." Unless they have acted dishonestly or can be shown to be incompetent, she said, "the law anticipates that they will be reelected. The idea is a little bit of accountability," rather than a review of the judges’ stand on political issues.

However, political issues can intrude in the judicial sphere, as was the case in 1986, when pro-death penalty voters organized to defeat state Supreme Court Chief Justice Rose Bird and associate justices Cruz Reynoso and Joseph Grodin.

"The opinion in the legal profession is that the whole Rose Bird fiasco was not good for the courts," Levenson said. Yet that did not stop activists from organizing in 1998 against Chief Justice Ronald George and Associate Justice Ming Chin, primarily in opposition to their votes in the 1997 ruling overturning the law that required teenage girls to have parental consent for an abortion. The justices were retained. This year, no organized opposition has developed over the vote on the judges.

But the current slate of justices cannot rest easy. In an October 1998 article for the County Bar Association, then-Bar President Lee Smalley Edmon wrote that "a judge who must make a decision that may be politically unpopular and who faces the prospect of becoming a target in an election is under considerable pressure," and that "such threats to an independent judiciary should be a concern in our constitutional democracy."

Another threat to the judiciary that has surfaced is voter apathy. Since the 1986 election, the average "yes" vote for Supreme and Appellate Court justices has declined from 75 percent to 60 percent, according to the Bar Association.

Edmon attributed the decline to "the trend toward anti-government voting." He said there is also "a decline in public confidence in institutions generally," plus the fact that "the public is rarely well informed about individual judicial candidates."

Of the lack of information voters have on judges, Levenson said, "No news is good news." If a justice up for retention were dishonest or unqualified, she said, "believe me, you would hear about it."

Justice Richard Mosk posits another reason why Jews, in particular, should vote to retain the judges on the ballot: an independent judiciary is good for the Jews. "Jews depend upon religious freedom to protect their interests," he said. "Only an independent judiciary, unafraid of the electorate, will stand up to protect minorities."

Some prominent Jewish politicians have joined Mosk in asking voters to retain the judges. Former Los Angeles County Supervisor Edmund Edelman, Supervisor Zev Yaroslavsky, Los Angeles City Councilman Jack Weiss and Edward Sanders, former president of The Jewish Federation of Greater Los Angeles, sent a letter to The Jewish Journal, stating, "We believe it is very important that voters vote to retain all of the Supreme Court and Court of Appeal justices by voting ‘yes’ next to each of their names on the ballot."

"Voting to retain these justices will help preserve the independence of the judiciary," the letter said. "Judges should not have to worry about losing their positions unless they are clearly deficient, and none are."

Levenson went a step further, saying, "I actually think they’re a terrific bunch. I would go on the principle that they should be retained just if they’re competent. But actually in this election, we should check off the boxes and say we’re grateful."

Precedent Setting

Judge Pauline Nightingale, 90, says her mother taught her never to question the teacher’s authority. But when she entered the workforce after graduating from law school, she had no choice: authorities tried to keep her from practicing law because she was a woman. Not only did she learn to question authority, but she fought back and won.

Born Pauline Friedman to an Orthodox mother and a secular father, she grew up in Depression-era Boyle Heights. At 12 years old, she started working alongside the all-male crew in her father’s auto parts store.

Inspired by news articles about legal cases that her father discussed with her during work, she enrolled in evening classes at Los Angeles College of Law after graduating from UCLA in 1928. Nightingale — the only woman in her class — graduated valedictorian and summa cum laude, and passed the bar exam her first time in 1932.

Anti-Semitism was rampant in the larger legal firms, so she entered a practice with two Jewish men. A few years later, the firm was still struggling and she decided to look for a job in another field.

She took a non-legal interviewer position with the California Department of Employment. “Men [normally] interviewed men and women interviewed women,” she says. “But at that time the war was on and there was a shortage of men. So, I became the first woman to interview men.”

When she heard that there was an opening for a labor commissioner, a job in which she would enforce the working regulations for woman and minors, she realized it was a “golden opportunity” to work as an attorney. But the position was only open to men. “I protested the restriction,” she says.

After she passed the exams, she was told that she would have to work “irregular hours” from 10 p.m. to 5 a.m. — a last-ditch effort to dissuade her from taking the job. Instead, she accepted the position and worked those hours for a full year.

When she was finally transferred to the day shift, she hoped that she would finally be able to use her legal knowledge. Instead, she was assigned to check businesses to make sure that the urinals in the men’s toilets were adequate. She had never so much as seen a urinal before, but did the job for six months.

Her next job finally put her legal skills to use. She spent 20 years working as counsel for State Labor Commissioner Sigmund Arywitz recovering wages and vacation pay, and enforcing lien laws.

Then in 1963, Nightingale applied for a worker’s compensation judgeship, along with five other women. “They still didn’t want women,” Nightingale says. “All of the women passed the written exam, but we were disqualified during the oral exam.” Three of the women reapplied, and despite some difficulty all passed. Nightingale went on to serve as a judge for 10 years.

After stepping down from the bench in 1973, she became active in ORT, Technion and Hadassah. She belongs to three congregations: Knesset Israel, Temple Shalom, and Temple Emanuel (she is especially fond of Rabbi Laura Geller.)

Nightingale was recently presented with the Outstanding Older Worker in California award and a Lifetime Achievement Award by then-Gov. Pete Wilson. “I was impressed that I received the awards, considering the fact that I’m a woman.”

Despite these and other accolades, she isn’t resting on her laurels. Nightingale spends less time in the courtroom these days and more writing letters to the California Supreme Court. “I still haven’t achieved what I want to achieve. I have cases I filed back from 1986 that I’m still fighting.”

Nightingale is happy to have seen the number of women studying law increase from almost nothing to 50 percent in her lifetime.

“I still think this is a man’s world, but women have made tremendous progress,” Nightingale says.

Alexis Sherman contributed to this article .

Rough Justice

Some advice for the new year: Don’t get into trouble in New Jersey. The judges there are really tough.

How tough? Well, they’ve got Barry Fisher rattled, and that isn’t easy. A Los Angeles human-rights lawyer, Fisher has tussled with some of the toughest of the tough. But those New Jersey judges are something else.

Last week, two federal judges in Newark separately decided to throw two Holocaust-related lawsuits out of court. Kaput. Both cases were class-action lawsuits by Holocaust survivors against German companies that used them as slave laborers. Both judges decided, for different reasons, that the cases couldn’t be tried in court. This could be trouble.

Barry Fisher knows something about slave-labor justice. Besides being co-counsel on all the main Holocaust restitution lawsuits, he’s pursued his own worldwide crusade for justice. In Tokyo, helping Chinese and Korean war victims to seek redress from their one-time Japanese slavemasters. In Warsaw, representing the tormented Romany people (“don’t call them Gypsies”) in Holocaust-related lawsuits. In Vienna, working with lawyers for non-Jewish Poles suing their World War II-ear corporate slavemasters. In Miami, consulting with former American POWs who are suing their Japanese tormentors. And that’s just in the last week.

The toughest part of Fisher’s global tour this month was leaving Miami for home. He had to drive all night, dodging Hurricane Floyd, to find an open airport. Somehow he also managed a side-trip to Italy, where his klezmer band (he plays accordion) performed at the wedding of British actress Julia Ormond. No, there isn’t much that fazes Barry Fisher.

Those New Jersey decisions have him spooked, though. It’s not the substance of the rulings. They were based on fairly narrow grounds, he says. The statute of limitations ran out in one case, while the other appeared to run afoul of several postwar treaties. Both cases may be reversed on appeal. Even if the rulings stand, they shouldn’t have any direct legal impact on the dozens of other Holocaust-related lawsuits pending in U.S. courts.

What worries Fisher is the psychological impact. All told, there are about 36 Holocaust restitution lawsuits pending in federal courts, he says. So far, the New Jersey rulings “are the first substantive decisions on legal issues in any of these cases.” All the others are either sitting on judges’ desks or mired in out-of- court negotiations.

Even the big one, the Swiss banking case that ended last year in a $1.25 billion settlement, never received a single ruling from the judge. The judge forced the parties to negotiate a settlement before he ever decided any matters of law.

From a legal point of view, therefore, you might say this was the first test of Holocaust restitution, Fisher says, “and the good guys lost.”

The cases tossed out last week were class-action lawsuits against three German companies that used slave labor during the war, Siemens, Degussa and Ford. Degussa was also being sued for manufacturing the Zyklon-B gas used in death camp extermination chambers.

Dismissal doesn’t end the story. Separate from the lawsuits, the companies are locked in a complex negotiating process with victims’ representatives, along with Jewish organizations and the U.S., Israeli and German governments. The Germans have offered to set up a foundation to compensate victims. But they’re offering a fraction of the amount the lawsuits were demanding.

Victims’ lawyers say the suits’ dismissal removes any pressure on the companies to improve their offer. “The Germans are going to use it to try and lower the dollar amounts they’re going to offer, by saying they have no legal exposure,” says New York attorney Melvyn Weiss, one of the lead counsels in both cases. “Of course it’s going to hurt.”

Not everyone is so gloomy. Some leading Holocaust victims’ advocates think the lawsuits’ dismissal might even be a blessing in disguise. Removing the battle from the courts of law puts it back in the court of public opinion, where it belongs. “We’ve always said this is a moral issue, not a legal one,” says World Jewish Congress executive director Elan Steinberg.

Part of that thinking is practical. Bringing the Holocaust restitution struggle into court may inadvertently have played into the hands of the banks and companies, some strategists argue. Courtrooms offer defendants endless opportunities to stall for time. And time is one thing Holocaust survivors don’t have.

The World Jewish Congress and its allies maintain the best way to pursue justice is through their strategy of jawboning and public pressure. First get the Germans, Swiss or whoever to sit down. Then bring in a top U.S. government official — usually Deputy Treasury Secretary Stuart Eizenstat — as mediator. Keep up the public heat through congressional hearings. In the background, maintain a threat of boycotts by American city and state governments, organized by New York City Comptroller Alan Hevesi. That combination brings results, like the Swiss banks’ $1.25 billion, advocates say. And it doesn’t give the other side an opening for endless motions, writs and depositions.

By way of contrast, Jewish organizational leaders cite the settlement the lawyers negotiated with the Bank of Austria last spring, over the objections of the Jewish organizations. The result was a mere $40 million, of which one-fourth goes for costs and lawyers’ fees. Worse still, the organizations say, the Austrian settlement sets up a process for notifying claimants that’s hopelessly slow and complex. The only thing the lawyers add, they suggest, is lawyers’ fees.

Unless you’re a Gypsy Holocaust survivor, that is. Or a Korean, Chinese or non-Jewish Pole used for slave labor during the war. People like that don’t have a World Jewish Congress behind them. All they have is a lawyer.

Barry Fisher, who’s championed both Jewish and non- Jewish human rights causes for years, views the World War II restitution lawsuits as a crucial building block in a larger process: the developing body of international human-rights law. Along with the Bosnian war crimes tribunal, the Pinochet arrest and similar developments, they offer hope for the first time that victims of atrocity and can demand and win redress.

“We’re at a rare moment in history,” Fisher says. “As we end the century it’s kind of a hopeful sign that there’s interest in having an international human rights system.”

That’s why the New Jersey rulings are so worrying. As the first-ever decisions in federal Holocaust restitution cases, they set a sort of precedent. And, Fisher says, “precedent is important in human rights law.”

J.J. Goldberg writes a weekly column for The Jewish Journal.