Many events are rescheduled to accommodate Jewish practice: some public schools systems are closed on Rosh Hashana and Yom Kippur; plenty of universities work with Jewish students to schedule exams and assignments around holidays; employers are sometimes required to adjust to employees' religious needs. But what about a criminal trial involving a Haredi Orthodox Jewish man during the Three Weeks?

Before pleading guilty to federal sex crimes charges last week, lawyers for Jacob Daskal, the founder of Boro Park Shomrim, asked the judge to delay his trial to account for the Three Weeks. That is the period between the fast days of Shiva Asar B'tammuz and Tish’a B’av, a period of particular misfortune according to Jewish tradition. The Shulchan Arukh, among the most-cited codes of Jewish law, discourages potentially dangerous activity during this period, and some scholars recommend delaying elective surgeries until after it concludes.

Daskal’s attorney, Ilana Haramati, explained the thinking behind her request for a delay, in pre-trial hearings last month, “The period between those three [weeks] on the Jewish calendar, depending on your level of observance, is considered unlucky days, where, you know, which Orthodox Jews try not to do things of import in their lives.” 

Judge Nicholas Garaufis ruled against the request. Legal experts suggested the ruling itself was non-controversial, but questioned some of the reasoning he used. In the non-controversial part of his ruling, Garaufis noted that the defense did not consider the Three Weeks to be a “holiday” during which the defendant would not work, and instead could be considered a period between two holidays, and that therefore not having a trial during the Three Weeks would be a “convenience” to avoid “unlucky days.” Coming only a month before the scheduled trial date, Garaufis accused the defense of “manipulation” in bringing a late challenge to the trial schedule.

However, Garaufis then went on to assert without further research that the Three Weeks are not a legitimate reason to delay a trial. “My sons are both -- have both been Bar Mitzvah. Some of my law clerks have been Orthodox Jews,” he told Haramati. “No one came to me about unlucky days in July. That is just an absurdity, it’s an insult. Don’t ever insult me.”

Two experts in religious accommodations under US law told Shtetl that the judge should have avoided using his own opinions to determine how to rule on a religious day’s significance.

“I'm not terribly comfortable with that, because there's a legal framework for religious claims or religious liberty claims, and it's not based on the judge growing up in New York and thinking about what he or she knows,” Chaim Saiman, a law professor at Villanova University, told Shtetl in a phone interview. “We shouldn't have a regime where the answer is the judge says, ‘Well, I know how Judaism works.’”

Michael Helfland, a law professor at Pepperdine Caruso School of Law, concurred, asserted in an email to Shtetl that “the one thing that a judge in these circumstances ought not do is make decisions based on his or her perceived familiarity with the relevant religious observance or faith tradition." Judges “should not be the arbiters of religious significance,” Helfand wrote, adding that instead, “they should be the arbiters of what is necessary to protect judicial resources as well as what is necessary to conduct trials in their courthouse.” 

As to whether the Three Weeks specifically should be a reason to delay a trial, Saimain explained that the test for that should be whether a religious belief is “sincerely held,” while taking into account the needs of the justice system. He provided the example of a case in which Orthodox Jewish prisoners won a suit to be allowed to receive and eat cheesecake on the holiday of Shavuos, in which the court found the belief to be “sincerely held.” Key to that case, Saiman asserted, was that the state did not demonstrate it had a “compelling interest” in denying the request.

And it’s that “compelling interest” that leads Helfand to think that the judge’s ruling was ultimately correct, even if it was wrong in its underlying approach to religious accommodation. “Requesting the better part of a month and doing so at the last minute appear to have given the judge the impression that there was some gamesmanship going on here,” Helfand said. If the request had been made in a timely manner or had been scaled back, the ruling might have been different, Helfand asserted. “Courts ought to grant modest requests with enough advanced notice.”

Under different circumstances, the judge might have ruled differently. “The judge clearly seemed to be willing to avoid having the trial on actual Jewish fast days so it was not as if the judge wasn't sympathetic to clear and discrete religious observances,” Helfand noted.