Defense attorneys are invoking Jewish law in infant murder case

PHILADELPHIA (JTA) — Attorneys for a teenage murder suspect have invoked Jewish law in a bid to prevent her parents from testifying.

The action by the attorneys for Amy Grossberg raises questions about the standing of halachah vis-a-vis the statutes of a sovereign state.

Grossberg, 19, and her boyfriend, Brian Peterson Jr., also 19, are charged with first-degree murder in the killing of their newborn infant son in November 1996.

Police say the two murdered the baby and dumped his body in a trash bin behind a motel in Newark, Del. Grossberg was a freshman at the University of Delaware at the time.

In July, her parents, Alan and Sonye Grossberg of Wyckoff, N.J., were served with subpoenas ordering them to come before Delaware Attorney General Jane Brady to disclose their daughter's confidences about the case.

The action came on the heels of an ABC-TV news program, "20/20," in which Sonye Grossberg told interviewer Barbara Walters that her daughter had revealed to her why she had concealed her pregnancy.

"Why do you think Amy didn't tell you she was pregnant?" Walters asked.

"I know the answer to that," Sonye Grossberg replied, "but I'm not at liberty right now to give it."

Their attorneys are now trying to prevent the Grossbergs from having to give Delaware's attorney general that answer — or any other testimony that might be used against their daughter in this capital case.

They have enlisted the ancient halachic statutes of the Mishnah, the Code of Maimonides and the Shulchan Aruch in their effort to do so.

The Grossbergs' Nov. 21 motion to quash the attorney general's subpoenas states that they are members of the Conservative branch of Judaism and that the subpoenas would violate their right to the free exercise of religion as protected by the First Amendment to the Constitution.

Superior Court President Judge Henry duPont Ridgely will not rule on the motion until the prosecution has had the opportunity to file a counter motion.

The Grossbergs are reportedly members of Temple Beth Rishon in Wyckoff. Rabbi Kenneth Emert, religious leader of Beth Rishon, declined to comment on the case.

One of the Grossbergs' three attorneys, Jack Gruenstein of Philadelphia, said he was uncomfortable discussing anything about the case because of a gag order imposed on all parties by Ridgely.

To back up their attempt to quash the subpoenas, the defense attorneys have appended to their motion an affidavit from Rabbi Joel Roth, Finkelstein Professor of Talmud and Jewish Law at the Conservative movement's Jewish Theological Seminary of America in New York.

"Under Jewish law, a mother and/or a father are not allowed to give testimony against their child in any legal proceeding," writes Roth, a member and former chair of the movement's Committee on Jewish Law and Standards.

Although Roth would offer no opinion on whether the secular court should take Jewish religious law into account in this case, several local rabbis did.

It is not appropriate to invoke Jewish law in the Grossberg case, said Rabbi Albert Gabbai, president of the Board of Rabbis of Greater Philadelphia and spiritual leader of Congregation Mikveh Israel.

"Personally, I think that we should always live by Jewish law," said Gabbai. "Having said that, I don't know how this Jewish law is relevant there, because it is not a Jewish court where the testimony of a relative is not taken into account. It is an American court."

According to Gabbai, another Jewish law prevails: the talmudic precept "The law of the land is the law."

"If the law of the land says you must testify, there's no choice," he said.

Rabbi Morris Dembowitz, religious leader of Philadelphia's Congregation Ner Zedek-Ezrath Israel-Beth Uziel, agreed.

"I think there is no reason to invoke Jewish law in a matter of this nature," he said. "You invoke religious law in matters of ritual. In matters of civil law and criminal law, the law of the land is the law."

Rabbi Gerald Wolpe said he sees the invocation of Jewish law in this case as a moral and understandable strategy by the Grossbergs' attorneys.

"I am not at all outraged that they've done this," said Wolpe, religious leader of Har Zion Temple in Penn Valley, Pa. "I think it's a valid approach."

Jewish law has been invoked on many occasions in secular courts — specifically, in cases involving divorce, adoption and bioethical issues, said Wolpe, who heads the Finkelstein Institute at JTS, a center for Jewish bioethics.

"The whole question of whether American law can utilize Jewish law for purposes of adjudicating a case is not without precedent," he said.

Rabbi Ira Stone joined his colleagues in stressing the importance of abiding by the law of the land — "to the extent that it doesn't force us into an egregious collision with Jewish law and life," said Stone, a visiting instructor in Jewish philosophy at JTS.

"The question is: Is this a collision?" Among the concerns are whether capital punishment is a form of murder, he said.

"These are very subtle philosophical and legal issues," Stone said. "I'm concerned that they be fully thought out."