By Mike Diederich, Jr.
Several years ago, N.Y.S. enacted legislation providing victims with the right to provide input into the criminal justice system in cases involving serious crime. Section § 647 of the N.Y.S. Executive Law provides , in relevant part, that:
“1. The court shall consider the views of the … family of a homicide victim … regarding discretionary decisions relating to the criminal case, including, but not limited to, plea agreements and sentence.”
The Evergreen case involved two horrible deaths and criminal culpability. One defendant plead guilty to “manslaughter,” which is a type of “homicide” (the death of a hominoid—of the species homo sapiens). Accordingly, it would appear that the County Court judge assigned to the case has the legal obligation of considering the views of the families regarding sentencing (at least if presented to him) at the plea and sentencing stages.
Based upon what I have read in the news, I believe that the family of the deceased fireman, Second Lieutenant Jared Lloyd, share the views of the volunteer firefighting community of Rockland County. Accordingly, I hope that the County Court judge will receive and consider the views of both the family of Jared Loyd and the firefighters of Rockland (if presented to him) before sentencing the two defendants.
Forgiveness based upon Religiosity?
One might expect that the rabbis’ defense attorneys will argue that the father and son rabbis are deeply religious individuals who, guided by their faith, took the actions they did to “purify” the kitchen environment to kosher standards. Their attorneys might argue that a flame in the kitchen is no different than candles on the altar in a Catholic Church or a Buddhist Temple, or countless other religious rituals or practices of differing faiths that might result in an injury or death. (Faith-based COVID Vaccine aversion is another recent example of religious views affecting public health.)
However, giving criminally culpable people a “pass” (e.g., no jail time) because they were practicing their religion is a slippery slope. If the general public (including the religious community) sees that no substantial penalty is imposed for conduct that resulted in a huge fire and the deaths of two innocent human beings, what will be the possible responses?
One response, by the religious community, may be to continue the apparently dangerous practice of “koshering” a kitchen by flame.[1] Why not continue to kosherize with a blowtorch if the worst case scenario, if death results, is a criminal conviction on paper and probation?
Another response, especially from firefighters, may be great resentment and the feeling that their voluntary service to the community is being made unnecessarily dangerous because of what they might perceived to be a reckless religious practice in a kosher kitchen?
A third response, from the family of the decedents, will be anguish over the loss of their loved ones because of a religious practice which, whether a mere accident or something worse, nonetheless resulted in the deaths.
A nation apart?
Another response from the public at large is more generalized. It is the perception by many in Rockland County that the ultraorthodox Jewish community and here, two of its members, are being given special favor by a politically elected official (the county District Attorney) due to political influence. The political power possessed by the Hasidic leadership, exercised through that religious sect’s “bloc vote,” is something of which every politician with is Hasidic constituency is acutely aware.
This perception is compounded by the fact that the DA is running unopposed for re-election, on both the Democratic and Republican lines, as was also the case in 2019. In 2019, the Republican Party gave him the Wilson-Pakula to run on their line, and the bloc vote then gave him over 99% of its vote on the Democratic and Republican lines, including the Conservative Party minority line. Today, the most prominent county Republican—Congressman Michael Lawler—routinely panders to the Hasidic community for its support.
Let me be clear that I am not accusing DA Thomas Walsh of any wrongdoing in the Evergreen case. Nor I am not accusing him of giving special treatment or pandering to a Hasidic community that clearly supports him. As I have written before, I am not privy to the evidence the DA’s office possesses.
The DA’s office may have legitimately concluded that it would more likely than not lose the criminal case, and thus guilty pleas guaranteeing the families of the victims findings of liability in a civil lawsuit a sound result. However, in this regard, New York law requires that the views of the victims’ families be considered, as stated above.
I have another concern. In my view, it is wrong to give special favor to any group of citizens based upon their religious beliefs or practices, if special treatment penalizes the larger community. Today, there is a national debate about the proper role of religion in the United States. This relates to the Founding Fathers’ creation of a constitution that unequivocally keeps religion out of governance, with a Bill of Rights that expressly prohibits an “establishment” of religion in America.
Favoring religion is a slippery slope. It has, as a logical conclusion, the ability of religious groups to form their own separate nation within our nation. We see this happening in Israel today. We see nascent versions of this in the small nation-states of New Square, Kiryas Joel, Lakewood and Williamsburg. These are microcosms of municipalities, and eventually states, to come, based upon demographic trends—especially population growth rates.
Of course, the two rabbi defendants are merely members of their religious community. It could be that their religious community is an exemplar of law-abidingness and contribution to the larger society. And that their particular kitchen koshering activity was not the norm.
As with Christian and other faith communities, there are great differences in rituals, customs and practices among people of the Jewish faith.
In America, however, the one commonality that has made America strong, and cohesive in challenging times, is religious moderation and integration with American society. Strong American communities are religiously moderate, integrated communities.
I mean no offense to the faithful, but the strength of United States democracy is the way it unites people of differing faiths for the common good, in times of war and peace. Example are Americans of all religious faiths volunteering for civic works during the Great Depression of the 1930s, or for military service during WW II, or advocating for equality during the Civil Rights Movement of the 1960s, or those seeking social justice today.
Sadly, it is often the case that the stronger the feelings of religious conviction, the weaker the democracy and the Rule of Law. Religious extremism, like ideological extremism, is poison to a nation built by “We the People.” Shared values and interaction are what unite a people. Segregation, insularity and extremism do the opposite.
And American law must be fair and just for all. Justice Antonin Scalia, in the U.S. Supreme Court case Employment Division v. Smith, wrote that laws do not violate the constitution’s Free Exercise clause when non-discriminatory and of “general applicability.” [2] As he explained, the First Amendment's protection of the “free exercise” of religion does not allow a person to use a religious motivation as a reason not to obey generally applicable laws, because (citing Reynolds v. United States) “[t]o permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”[3]
Today, the U.S. Supreme Court seems to be ignoring Justice Scalia’s wise holding, by increasingly affording special privilege to religion, potentially at the expense of the larger society. Yet Employment Division remains good law today.
Therefore, the County Court judge in the Evergreen case, Judge Russo, should not bestow special favor based upon religion. He should impose a sentence based upon the defendants’ acts and omissions, but not their religion. Religion must be kept out of governance, and this includes the adjudication of criminal justice.
Victims’ Input at Sentencing
The victims of the Evergreen fire (the family of the decedents and also first responders) are entitled to provide their views to the sentencing judge. In fairness to the Defendants, they should let the County Court, the DA’s Office and the defense know their intention to present their views well in advance of the sentencing date, so that the defendant rabbis are not blind-sided.
The public can and should attend the sentencing. But please, not as a mob with grievance, but rather as citizens willing to rationally consider all the evidence with an open mind and a view toward justice.
Justice, after all, is possible only after all sides are rationally considered, with emotions put aside.
/s/ Mike Diederich, Jr.
Diederich Law Office
Stony Point, NY
27 June 2023
[1] See, e.g., Koshering Your Kitchen, Chabat.org, https://www.chabad.org/library/article_cdo/aid/82667/jewish/Koshering-Your-Kitchen.htm (a blowtorch is a tool used; the article does not describe any safety precautions).
[2] Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). [3] Reynolds v. United States, 98 U.S. 145, 167 (1878) ("To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.").