Hamas, Eichmann, Due Process, and a Jewish Accomplice in Texas
My law practice cases back in the USA were almost all transactional civil matters, but I did have occasions to sit at the defense counsel’s table in some criminal cases.
Although the accused is technically the criminal defense attorney’s client, defense counsel’s function in a criminal case is to ensure that the prosecution dots all of the i’s, and crosses all the t’s, jumps through all of the hoops, skates around all of the barrels, does not cross the line of scrimmage before the ball is hiked, and honors all of the accused’s Constitutional rights. The criminal defense lawyer, then, is defending the United States Constitution.
The Israel analog to the United States Constitution is its set of Basic Laws; the main difference between the Israel system and the American system is the amendment process. Amending the U.S. Constitution requires a two-thirds supermajority vote by Congress or the states themselves to propose an amendment, followed by a three-fourths supermajority vote to ratify the amendment so proposed. Amending Israel’s Basic Laws is accomplished by a simple majority vote in the Knesset.
Whether in the USA or Israel, criminal defense lawyers perform an important function. Criminal prosecutors are government bureaucrats, and as with all government bureaucracies, their organizational mission will eventually become perverted and go rogue if an accountability mechanism is not in place. Criminal defense attorneys are that mechanism.
Although certain criminal defense attorneys are notorious for defending criminals who espouse particular political positions that today are, to say the least, unpopular with supporters of Israel, such lawyers nevertheless perform a vital function in preserving the integrity of the system; names such as William Kunstler, Ron Kuby, or Stephen Somerstein come immediately to mind. While those lawyers may well subscribe to the political positions of the clients they defend, they do prevent the legal system from going totally rogue on the populace; such would pose a greater danger to society than would allowing the terrorists and anarchists they represent to walk free at large.
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Adolf Eichmann was effectively a dead man the moment he was seized by Israeli agents in Buenos Aires. But Israel chose to conduct a trial and go through the due process routine; it was able to do so because Eichmann was not, by that time, actively engaged in live warfare against Israel or the Jewish people. And so, instead of neutralizing him on the spot, the Israeli agents secreted him out of Argentina and delivered him to Israel for the trial. Yes, there were elements in the proceeding of a show trial, but a leading concern was according Eichmann the due process necessary to preserve and further the integrity of Israel’s justice system no less than promoting Israel’s diplomatic standing.
Robert Servatius and Dieter Wechtenbruch, the German lawyers chosen by Israel as Eichmann’s defense counsel, performed exemplarily well in their function to ensure that Eichmann’s dispatch to the gallows was done with due process. Servatius and Wechtenbruch questioned early on whether Eichmann could receive a fair trial. The court addressed the fair trial issue by explaining that (1) there is a difference between having a bias against an individual personally and having a bias against murder or any other crime; and (2) while all judges carry their own personal perspectives and biases, the judges sitting at Eichmann’s trial were capable of fulfilling their professional obligation to detach themselves from and rise above their personal prejudices so that they can apply the law to the facts presented at the trial.
[Indeed, I myself had occasions to do likewise while serving as an Arbitrator in New York City Civil Court. There were instances in which I successfully rose above my personal biases, including the case in which the aforementioned Stephen Somerstein appeared before me as counsel for the plaintiff in a matter ancillary to the defense of another client of his in a pending criminal case. Without going into the particulars, the result of the Small Claims court-annexed civil arbitration enabled Somerstein to further the defense of his client in the criminal case. Although my personal empathies in the case before me were clearly slanted more to the respondent than to Somerstein or his primary client in the criminal case, Somerstein carried his civil client’s burden of proof. Having disconnected my personal biases in order to objectively view the matter, I ruled in Somerstein’s client’s favor.].
Once preliminary matters such as the court’s jurisdiction and fair trial were resolved, Servatius and Wechtenbruch continued throughout the proceedings to insist that due process was accorded to Eichmann.
The Eichmann trial demonstrated that Israel is capable of giving due process to accused criminals. At a Shurat HaDin Activist Lawyers program in 2016, I and other participants observed a trial at a Judea & Samaria military court. Trials at that court are open to the public (with due regard to spectator space and security issues), defendants are represented by lawyers admitted to practice law in Israel, the Palestinian Authority, or Jordan, and transcripts are availed by video to both prosecution and defense in real time. In the particular proceeding we observed, the defendant sitting in the dock was not flanked by soldiers as he consulted with his counsel (it was an automobile theft case). We were not present when the verdict was announced for this particular trial, but the statistic quoted to us was that approximately 25 percent of the cases not resolved by plea bargains ended in acquittals, a rate higher than the acquittal rates in the United States or Canada. The trials are conducted without juries; it is clear that the military judges here do put aside their personal prejudices and objectively weigh the evidence.
[What impressed me early on at that trial was the fact that the prosecuting and defense attorneys both entered the courtroom through the same door; one of my pet peeves about the American justice system is that government-side attorneys often have their own special entrances to the courthouse if not the courtroom itself; this sends the wrong subliminal metamessage to the public, the jurors, the prosecutors, and the judges themselves.].
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One judge on the bench who miserably failed to elevate himself above his personal biases was Vickers L. Cunningham, who showed clear bias in the capital case against Randy Halprin. Cunningham’s antisemitic biases were so egregious that Halprin was granted “a new trial based on a structural due process violation” on appeal, leaving a black mark on the integrity of the Texas judiciary.
In no way can I be considered an advocate for Randy Halprin, one of the so-called “Texas Seven” who perpetuated one of history’s most notorious prison breaks. The conviction that put Halprin behind bars in the first place was for extreme physical violence against a child. In breaking out of the prison, the Texas Seven physically injured four corrections officers, nine other prison employees, plus three convicts, uninvolved in the escape scheme, who were performing their assigned tasks within the maximum-security facility. While at large, the seven escapees went on a crime spree that included a robbery of a sporting goods store, during which they fatally shot Police Officer Aubrey Hawkins and ran him over with their escape vehicle. It was for the murder of Officer Hawkins that the six remaining escapees (the seventh had suicided before being captured) were convicted and sentenced to death.
My advocacy in that case is for the due process which Halprin was denied, and not for Halprin personally. It is conceptually easy to prosecute a capital murder case against Halprin. Incarcerating him in a maximum-security prison facility did not protect society, certainly not the 13 prison employees who were injured. As for the three non-complicit convicts assaulted and battered during the escape, they were sentenced to serve jail time, and not to get beaten unconscious. Now that Halprin has been granted a new trial, his case seems on course for due process. Perhaps a fair trial before an impartial judge will result in a death sentence (which the Dallas County District Attorney has indicated will be sought), but at least the due process to which Randy Halprin is entitled will have been accorded to him if he ends up getting strapped down to the gurney.
Halprin’s supporters are quick to insist that he does not deserve the death penalty because he was not the actual trigger man. That he did not fire any of the rounds that killed Officer Hawkins is not in dispute, but this is irrelevant under the Texas accomplice liability statute (often referred to as the “Law of Parties”). Accomplice liability statutes have a deterrence value and can aid prosecutors in obtaining cooperation from the accomplices for use against the primary perpetuators. Prosecutions for crimes committed as part of a group effort, such as shoplifting sprees or organized crime syndicate Mafia-type operations, especially lend themselves to a prosecutor’s use of accomplice liability prospects to induce participants having unclean hands to take the witness stand.
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As I have previously noted, Jonathan Pollard is no hero of mine, but, like the stopped clock, he occasionally gets something that is absolutely on-target. Here is one of them, in which he concludes:
“The only thing we must commit ourselves to if we decide to sacrifice the hostages for the survival of our state, is that every Hamas member – even those we’ve captured – must be executed and that Gaza must be annexed so that it will never again pose a threat to our people.”
To be sure, Pollard’s proposal is quite problematic even for capital punishment proponents such as myself. In light of the Geneva and Hague Conventions, Israel would be ill-advised to execute prisoners of war on the basis of that status alone. If Pollard’s scheme is to be actualized, then there would need to be some other reason to impose such drastic criminal punishment upon the Hamas operatives incarcerated by Israel. Other nations have executed offenders for far less egregious actions than the 7 October 2023 Hamas pogrom. Accomplice liability is one potential avenue to do so.
There would, of course, be some practical matters to address, including but not limited to the logistics of trying multiple defendants at one sitting (for which the lessons learned from the Nuremburg trials experience would surely prove valuable), giving each defendant an opportunity to demonstrate why he or she was not part of the common criminal enterprise alleged, and manner of imposing the death penalty if such is the sentence.
Israel needs to worry less about what other nations of the world think, and start acting in the interests of its citizens. Addressing the Hamas murderers in a manner consistent with due process is imperative in doing so, especially now that there are serious reservations among the public regarding the integrity of its judicial system.
