Joseph’s Jailor and Gideon’s Trumpet: The Scourge of Wrongful Conviction by ALEPH vice-chair David Markus

A d’var Torah for Parashat VaYeshev by Erev Rav David Evan Markus. Cross-posted from the website of T’ruah: The Rabbinic Call for Human Rights.


The Biblical Joseph evokes the dreamer, technicolor coat, and predictions that saved Egypt from famine.  Less often recalled is the Joseph who rotted in jail for a crime he didn’t commit. Joseph’s slavemaster Potiphar summarily incarcerated Joseph based on the lie of Potiphar’s wife that Joseph had come on to her when, in fact, Joseph had rebuffed her own illicit advances (Gen. 39:7-20).  Joseph’s story in this week’s Torah portion (Vayeishev) reminds us of the power of false accusation, the taint of corruption, how fleeting freedom can be, and the high price of bad justice.

The nonprofit Innocence Project reports that 321 Americans imprisoned on felony convictions were exonerated in the last quarter century, most of them in the 10 years.  They and thousands of others awaiting exoneration bear society’s heavy burden of wrongful conviction – when the officially guilty are actually innocent.  Wrongly convicted inmates in the U.S. spend an average of 13.5 years behind bars before exoneration; the price they pay in lost years and broken lives is incalculable.  Meanwhile, in every wrongful conviction, the justice system fails not once but twice: when the innocent are wrongly convicted, the truly guilty usually evade punishment and remain at liberty to re-offend, often with tragic results.

No justice system that depends on inherently imperfect humans ever can be perfect.  It’s one of many reasons that Torah calls us to “chase justice” rather than “do justice” (Deut. 16:20): it’s naïve to believe that truly perfect justice is attainable by any earthly means.  To be sure, we must do the best we can, and thankfully justice standards have evolved far since Joseph, who went to prison merely on the corrupt say-so and fury of a woman scorned.  Presumptions of innocence, proof beyond reasonable doubt, and rights to counsel were unknown in Joseph’s day.

Metaphorically speaking, however, Joseph’s story isn’t so far-fetched even in 21st century America.  Witness error, invalid or tainted forensic evidence, false or coerced confessions, and occasionally corrupt informants and prosecutorial misconduct all continue to mar the pursuit of justice.  These are among the prime causes of wrongful convictions: together they comprise a cancer on our justice system.

Perhaps the most tragic and correctable cause of wrongful conviction is bad lawyering, usually for reasons far beyond lawyers’ control.  Over 50 years ago, the U.S. Supreme Court established a constitutional right to indigent legal defense in the landmark case of Gideon v. Wainwright.  With a clarion call heard across the land, the Court unanimously held that “lawyers in criminal courts are necessities, not luxuries….  [It is an] obvious truth [that] any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided.”

This “obvious truth,” however, also is an inconvenient truth.  The constitutional right to counsel – and its protection against wrongful conviction – are only as meaningful as society makes well-trained counsel from public defender offices and legal aid societies available for each indigent criminal defendant at each phase of criminal proceedings.  The problem is that effective indigent defense does not come cheap, and too often governments so severely underfund indigent defense as to mute Gideon’s trumpet.  The result is too much work for too few lawyers to do, which jeopardizes the right to counsel and causes the justice system to go awry.

In my native New York, reputed to be a national pathfinder for civil rights, the Commission on the Future of Indigent Defense Services found wholesale underfunding of the indigent defense system.  In its report, the Commission noted that one county’s public defenders carry an average misdemeanor caseload of 1,000 cases and 175 felony cases per year per attorney – a caseload so high that indigent defenders can barely learn client names, much less conduct meaningful investigations and mount effective defenses.  Worse, this beleaguered office then was asked to submit a budget with a 10% cut – and these reports are by no means isolated.  Under such conditions, the Commission held, indigent defense risks becoming little more than a farce, an empty shell and a plea mill that all but guarantees some innocent defendants will be wrongly convicted or prompted to plead guilty to crimes they never committed.

New York, at least, is making strides: a recent lawsuit challenging the adequacy of New York’s indigent defense funding led in October 2014 to a landmark settlement that heralds reforms and resources so that indigent defense can be meaningful in practice as well as promising on paper.  Other states, however, are far worse and seemingly going nowhere or even backwards in making real the constitutional right to counsel.  Especially under challenging economic conditions, it can seem politically easy to balance tight budgets on the backs of people and causes perceived to be the least politically powerful.  Indigent criminal defendants make poor sound bytes.

It is offensive to core American values that a nation committed to the rule of law should balance budgets on the backs of indigent defendants wrongly convicted, their very freedom stolen from them.  Nobody should have to pay that price.

This week’s Joseph story reminds us that anyone can be wrongly convicted and imprisoned for a crime they never committed.  Remembering the lesson of Joseph, all of us have a stake in ensuring that our justice system is as fair as it can be.  All of us have a stake in ensuring truly effective indigent defense to vindicate this nation’s constitutional right to counsel.

David Evan Markus is vice chair of ALEPH: Alliance for Jewish Renewal.  He will be ordained as a rabbi by ALEPH in January 2015, and serves as associate spiritual leader of Temple Beth-El of City Island (New York, NY).  By day he serves as judicial referee in New York’s Supreme Court; previously he served as special counsel to the Chief Judge of New York, and as counsel to the New York State Commission on the Future of Indigent Defense Services.