|Photo by: Wikimedia Commons|
When you’re in a hole, stop digging!
By HERSHEL SHANKS
For more than 50 years I have been trying to predict what judges would do and I admit it is an uncertain enterprise at best.
Oops! Sorry. Is that the way criminal indictments are initiated? It seems so in
the case of Rafi Brown, who for many years had been chief conservator at
Jerusalem’s Israel Museum, later became an authorized antiquities dealer and
subsequently closed his shop and became a private conservator, often based in
Brown was one of the original defendants in the “forgery
trial of the century,” recently dismissed by the judge after a five-year trial.
But Brown wasn’t one of the vindicated defendants.
Although he was one of
the original defendants, the government long ago dropped him from the
He was originally indicted for involvement with the alleged forgery
of a famous seal impression of the prophet Jeremiah’s scribe, Baruch ben Neriyah
(Jeremiah 36), among other things, one of the prize possessions of the Israel
The dismissal of the indictment against Brown was little noticed
at the time. But it was a tip-off to those who follow these things closely as to
how casually and irresponsibly this case has been handled. Imagine what it means
to a man like Brown (to say nothing of his professional standing in the
community) to be indicted for involvement in a forgery.
The judge recently threw out the forgery charges against the
remaining two defendants in the case. His 547- page decision repeatedly shows
how off-handedly this case has been treated by the government.
imagine putting on the stand one of your chief witnesses – who claims to have
seen the James Ossuary inscription (“James, son of Joseph, brother of Jesus”)
without “the brother Jesus” – without first inquiring of your witness where and
when and how he saw the inscription, only to find on his cross-examination that
he saw the inscription for a few seconds at most and, in any event, he could not
read the Aramaic even if he had seen it, although it contained his own name,
This was not the only embarrassment.
Take the government’s
chief scientific witness, Tel Aviv University professor Yuval Goren. The
government knew that conservator Orna Cohen had said she had seen original
ancient patina in the word “Jesus” despite the government’s contention that it
was a modern forgery.
Apparently, neither the government nor Goren
focused on this “insignificant” bit of ancient patina until Goren was asked
about it on cross-examination. He asked to be excused so he could look at the
inscription itself and came back admitting that indeed it was there, although
perhaps the forger, he said, used an ancient scratch (with ancient patina) as
one of the strokes of the letter which he forged.
The government also
violated another basic rule in this case. As framed by the American humorist
Will Rogers, “When you find yourself in a hole, stop digging.”
than 50 years I have been trying to predict what judges would do and I admit it
is an uncertain enterprise at best. But in this case Judge Aharon Farkash gave
plenty of indications where he was coming out; the government, however,
perversely refused to accede to his admonitions.
AS EARLY as 2008, the
judge invited the prosecution to drop the case, telling the prosecutor: “Not
every case ends the way you think it will when it starts. Maybe we can save
ourselves the rest.”
The prosecution refused to take the judge’s advice.
Subsequent suggestions from the bench were met with the same obstinate
Even after the judge’s decision, the Antiquities Authority
would not admit defeat. At a hearing on the punishment that should be imposed on
Oded Golan, owner of the James ossuary who was convicted of the minor offense of
trading in antiquities without a license, prosecutor Dan Bahat (not the
well-known Jerusalem archaeologist of the same name) sought to reargue the case,
insisting the artifacts were fakes and should not be returned to the
“The judge seemed unimpressed,” one observer
Recently, Dr. David Jeselsohn, the internationally respected
antiquities collector, a major contributor to the Israel Museum and founder of
Bar-Ilan University’s Jeselsohn Epigraphic Center of Jewish History, posted a
blog stating: “This trial would not have taken place were it not for the fact
that the [Israel] Antiquities Authority acted imprudently, senselessly,
foolishly and, regrettably, with malice. Yes, with malice.”
expressed the view that “the Antiquities Authority should express its full
apology and reimburse him [Robert Deutsch, one of the two defendants who
remained in the case] for the damages he sustained as well as learn a lesson for
the future. If they are not forthcoming, the authorities responsible for the
activities of the Antiquities Authority, including the minister in charge and
the Archaeological Council, should draw their conclusions in light of all that
transpired and the total loss of confidence in the Antiquities
As one leading professor from Yeshiva University emailed me:
“Jeselsohn is straight-on right.”
The writer is an attorney formerly with
the US Department of Justice and is now editor of the Biblical Archaeology