Liberty's last champion: His ethics? Two noted Jewish law scholars tackle the ethics of defending the guilty. Their conclusions may surprise you. by Micah Sachs    Despite defending a seemingly brutal monster in front of millions everyday on CourtTV and local San Diego stations, Steven Feldman suffered his harshest criticism after the trial was over.    It was in September, only a few days after the trial ended, that the San Diego Union-Tribune broke the story that Feldman was ready to have David Westerfield plead guilty to murder before the trial began. In exchange for pleading guilty and revealing where Danielle van Dam's body was, the newspaper reported, Westerfield would not receive the death penalty. But then, according to the Union-Tribune's unnamed sources, Danielle's body was found and all bets were off. The revelation's insinuation is obvious: Feldman knew Westerfield was guilty and yet continued to represent him.    Bill O'Reilly, of The O'Reilly Factor on Fox News Channel, lambasted Feldman (and co-counsel Robert Boyce) after this report, saying, "How could two lawyers stand in court week after week and try to get a child killer set free when they knew, they knew the man had brutally assaulted and murdered a defenseless little girl?" He went on to say: "No American should ever talk to these two people again - that's how sleazy they are."    Feldman would not talk about the report, but he is steadfast in his belief that a defense attorney's job is to do everything he can to help his client, short of outright lying. This belief was affirmed time and again by attorneys who said it was Feldman's legal obligation to seek the best scenario for his client. Indeed, O'Reilly's accusations were so sloppy that he urged his viewers to call the wrong bar association to complain about Feldman's "unethical" behavior.    But law and morality are two very different animals, and many instinctively recoiled at the notion of protecting a man who you know is guilty. But according to two experts in Jewish law and ethics, the Jewish tradition would stand by Feldman's decision.    "It would be the same sort of thing that you would get in American ethics, which is you may not tell outright lies or encourage your client to do so - that's perjury - but you should put his position in the best light possible because otherwise the jury can't evaluate this side of the argument," says Elliot Dorff, a University of Judaism professor who serves as vice-chair of the Conservative movement's committee on Jewish law and standards. "If you think about some of the classical Jewish sources, the judges are supposed to look for reasons to acquit and not just reasons to convict and so, for that reason, the defense attorney should present to the court as vigorously the true parts of the client's case, which would tend to acquit."    It's not a simple conclusion to come by. In Jewish tradition, there were no attorneys, defense or prosecution - there were only judges. It was their job to decide, from evidence they or their assistants gathered, whether the accused was guilty of a crime.    Therefore, the classical sources - the Talmud, the Mishna, et al. - don't speak directly about the ethical responsibilities of attorneys. But the ancient Jewish standards about what judges may do and not do are remarkably similar to modern American judicial standards.    There are variety of rules to ensure a fair trial: rules that ensure the accused is not judged based on his education or social standing, rules that prevent judges from leading witnesses, rules that require the accused and accuser to wear clothes of similar value, rules that require interpreters for foreign language speakers.    The burden of proof is close to modern standards: "Basically what it says is that it has to be clear that a person is guilty in order to convict," says Dorff. "It does not say that it has to be clear to the judges that a person is not guilty in		order to acquit. Because the burden of proof is the on the one who wants to say the person is guilty. So it's close to beyond a reasonable doubt."    And most importantly, the Jewish tradition does not allow confessions on the part of the accused. Jewish tradition, while idealistic in its aspirations, was realistic in its expectations, and envisioned the possibility that corrupt powers would coerce confessions.    So even if Westerfield confessed his crimes to Feldman - a matter Feldman won't speak about - Westerfield would still be deserving of a fair trial, even in the ancient Jewish tradition.    Says Michael Broyde, a law professor at Emory University who wrote a book about the ethical responsibilities of Jewish lawyers in America titled The Pursuit of Justice and Jewish Law: "In my view, a defense attorney can do anything that the secular law permits him to do in the course of defense."    But the less-discussed moral issue still remains: if van Dam's body were not found before the trial, and the plea bargain were rejected, it's possible that the state could pursue a case against Westerfield without the body. Which means that it's possible that Feldman could continue with the trial knowing that a 7-year-old girl's body was rotting in a ditch in El Cajon without a proper burial.    This is where things would seem to get sticky, at least from a Jewish perspective. Jewish tradition places great value on the concept of kavod ha-met ("honoring the dead") and commands that bodies be buried as soon as possible after death. Indeed, in Israel, hospitals are not allowed perform autopsies routinely because they desecrate the dead and delay burial.    "The problem is that Jewish law doesn't presume a lot of things that American law presumes," says Dorff. "The first thing is that Jewish law assumes that any capital case is going to be decided in one day, and that if they come to a capital conviction, the judges have to stay overnight… so some judges can convince other judges to overturn [the death sentence].    "But nevertheless, if dawn comes, and they still have a capital conviction, execution is carried out that day. In other words, the day after the trial… But in American law, it's years."    So if Feldman were arguing in front of a Jewish court in ancient times, his obligation would be to reveal the location of the body as soon as Westerfield were executed. And the body would still be buried rather quickly.    But in American law, the body could remain unfound for years. But even still, says Dorff, preventing another death - that of Westerfield's - takes precedence over all else.    "So even though we have a mandate to honor the dead - and that includes burying them as soon after death as is possible - that mandate is superceded when you can save a life," he says. "Pikkuah nefesh ["Saving a person's life"] takes precedence over kavod ha-met."    So it is because California has the death penalty that Feldman is given a moral mandate to protect a child-killer. Without the death penalty, much of the moral authority behind protecting accused killers would disappear - a case that Feldman wouldn't even argue with.    And wasn't the death penalty supposed to prevent crime? For feedback, contact editor@sdjewishjournal.com.