In this week’s parshah the Torah sets forth some of the procedures and operations of beis din. The pasuk says that we are to follow the opinion of the majority of judges.
In a capital sentence, a minimum of 23 judges are required. Rashi points out that in order to incriminate someone in a capital sentence there must be more than a one-judge victory. In other words if 12 judges say that he is guilty and 11 rule for his innocence, he cannot be liable. There must be a minimum of two judges more who believe that he is guilty than those who believe he is innocent in order for beis din, meaning in order for beis din to kill someone the verdict must have a minimum of 13 judges who believe he is guilty.
The Gemara in Sanhedrin 17a says that if all of the judges find the culprit guilty he is patur. The general understanding of this halachah is that at least one judge must be able to find some reason why the perpetrator should be found innocent. If they have not found any reason for his innocence then they cannot execute him.
The Ohr Hachayim raises the following question: what if the first 22 judges found the culprit guilty, and the last judge believes that he is guilty as well. Should he state that he finds him guilty as well, which will result in his freedom, or should he state that he finds him innocent, which will lead to his execution? And, on the contrary, in the same circumstance where all 22 judges have found him guilty and the last judge actually believes that he is innocent. Should he state his opinion as he see the case, that he is innocent, which would lead to his execution, or should he state that he believes that he is guilty leading to his vindication?
The Ohr Hachayim rules that one may not manipulate the system; rather he must state his opinion as he see the ruling in the case; not as he would like the outcome of the verdict to become.
The Torah Temima, Rav Baruch Epstein, offers a revolutionary pshat in this halachah. He cites that the Rama, Rav Meir Halevi (not to be confused with the Rema, Rav Moshe Isserles) explains that the Gemara says that if all of the judges find the culprit guilty “potrin oso.” Literally this means that he is patur – exempt. However the Rama explains that it means that we execute him immediately, and we don’t wait until the next day, as is the general procedure. The Torah Temima explains that we find such an expression elsewhere in the Gemara in Shavuos 39a where one is obligated to swear and the beis din explains to him the severity of swearing, and he decides he does not want to swear. The Gemara says “potrin oso miyad.” Rashi in Shavuos explains that beis din makes him pay immediately. Additionally, the Rama is brought in the Maharit Algazi’s sefer Kehilas Yaakov, erech patur.
Therefore, Rav Epstein suggests that if all of the judges find the culprit guilty, the beis din will execute him immediately. With this he answers several questions. First, it does not make sense that if all of the judges find someone guilty that he should be vindicated. If the case is crystal clear that one person murdered another, why should he not be executed? Second, the Gemara says that there are other scenarios where beis din does not have sufficient evidence to execute someone but they feel that he is guilty, for example if the witnesses are invalid witnesses but they are compelling, beis din may place the culprit into a cell and effectively wait until he dies. Why should a scenario where there are valid witnesses testifying to that extent offer less of a punishment?