36 Clifford E. Librach
contrary that the justification for Rabbi Tarfon’s refusal to help the Galileans was his fear that the blood avengers would punish him for assisting in the escape of criminals. Thus his self-interest in personal security justified his refusal to aid the fleeing Galileans. But Tosafot and the Rosh both insist that helping them would otherwise be permitted under Jewish law.
The issue for Rashi was Rabbi Tarfon’s doubt as to whether or not the Galileans were actually guilty. This has led one modern authority to insist that the decision to aid one who is guilty of a crime depends upon the actual knowledge of guilt on the part of the one whose assistance is requested:“If a lawyer knows that his client has committed a crime, it is forbidden for him to help the criminal escape the consequences of his act, by relying on some technical legal points or other devices. The lawyer, just as any Jew , is directed by the Torah to eradicate the evil from our midst, and may not actively assist someone to avoid his punishment.”®
Of course, the practical implications are such that the difference between Rashi and Tosafot may not be so great. Criminal defense attorneys rarely, if ever, know their client is guilty because the establishment of guilt is a legal, and not a factual, conclusion. A determination of guilt in modern systems of criminal justice involves the variables of testimony, witnesses, police misconduct and clearly established criminal intent. We may assume then that criminal guilt is never really known by a professional providing assistance to an accused defendant.
An interpretation is possible which reconciles Rashi , Tosafot and the Rosh and makes no distinction between known guilt and mere rumors of guilt. This is suggested by understanding Rabbi Tarfon’s hesitation to be essentially out of fear of violating the secular law and being punished for said violation. Thus, the sole limitation on assisting one accused of a crime would be the danger to one’s self, i.e., will the secular authorities chase and apprehend you for your assistance?’
Modern criminal justice systems not only permit but require professional assistance to criminal defendants, which is accordingly justified, as well, by Jewish law. If this is correct, then any form of assistance legally permitted by the secular society and authority would be permitted under Jewish law.
Particularly in light of current American law? this position appears both logical and sensible: namely that a professional's assistance simply insures that the secular society is satisfying its