Realities of the Street

Michael sounds exactly the way one would imagine a retired undercover police office. His tone resonates with a mixture of professionalism, determination and confidence that hint at years of dealing with the harsh realities of the street. It is clear that he has strong feelings about this particular type of case. “I believe that I am actually working against drug trafficking by testifying for the defense in these cases,” he asserts. Indeed, Mr. Levine has been waging a battle against drug trafficking in United States courts for years — by testifying for the defense.

The “blind mule” ploy, Mr. Levine says, is a common tactic used by drug traffickers, and many innocent travelers fall prey to it. Law enforcement officers tend to be content with apprehending the “mule,” or courier of illegal drugs, without bothering to pursue the real criminals — the drug traffickers who recruit the unwitting couriers. He considers this approach a result of poor training or ineptitude, and represents a decline in the deterrence ability of law enforcement and the judicial system.

“Years ago, a person who was arrested while carrying drugs often wouldn’t be prosecuted as long as there was a reasonable doubt as to whether he knew what he was carrying,” Mr. Levine relates. “Sometimes they were proven to be lying, but often the prosecutors wouldn’t pursue the case.” Over the past couple of decades, however, the “blind mule” defense has lost much credibility in court. Government experts have taken the position that drug traffickers would never entrust a shipment of illegal drugs, often worth millions of dollars, to a courier who has no idea what he is transporting.

Mr. Levine is quick to take issue with that assertion. “Drug traffickers know that some of their ‘merchandise’ is bound to be discovered and confiscated, and that’s a risk they are willing to take. They view a certain degree of loss as an inevitable cost of doing business. But what they cannot tolerate is the possibility that they themselves might be detected. Using a blind mule is the best way for them to protect themselves. The mule has no idea what he’s doing, and if he’s arrested, he will be prosecuted while the drug traffickers themselves get away. You see, then, that when the police go after the mules, they’re actually working for the drug traffickers, enabling them to stay in business.”

According to Mr. Levine, even in the United States, innocent mules are often convicted and can end up spending decades in prison—but his own testimony as an expert witness has saved many from such a fate. In one such instance, a woman had returned from visiting family in Colombia and one of her suitcases was lost en route. One week after her return, she received a telephone call informing her that the suitcase had been retrieved and she could pick it up at the airport. She was met by a customs officer who ordered her to sign a statement affirming that she was the owner of everything in her suitcase. She complied and was immediately arrested. To her utter bewilderment, a small package of drugs worth millions of dollars had been discovered in her luggage. She protested bitterly that she had never seen the package before and someone else must have placed it there, but the police refused to heed her claims. It was only two years later, when Michael Levine appeared as a witness at her trial and attested to the legitimacy of the “blind mule defense,” that she was acquitted and freed.

Other “blind mules” who did not benefit from Mr. Levine’s testimony were not so fortunate. Mr. Levine relates the story of an businessman who was seemingly tricked into bringing illegal drugs into the United States and was sentenced to 20 years in prison. The man was offered a tantalizing business deal; glass construction blocks were available for purchase in Venezuela for an extremely low price, and could be sold in the United States for a significant profit. Unbeknownst to the businessman, his contact had concealed $10 million worth of illegal drugs in the glass blocks. The drugs were discovered and the businessman was tried, convicted, and sentenced to a twenty-year prison sentence. He was given a retrial due to legal technicalities and was offered the chance to plead guilty in exchange for a drastically reduced prison sentence, but he declined the offer, asserting that he would not plead guilty to a crime he had not committed. Once again, he was convicted and sentenced.

It was only after the second trial that his attorneys turned to Mr. Levine, who filed an affidavit in support of appealing his conviction. The appeal was rejected, and Mr. Levine laments the fact that an expert witness was not retained earlier. He believes that the businessman, who is still imprisoned today, is innocent of the crime. True to his position on the subject, Mr. Levine also criticized the government’s lack of interest in pursuing the drug traffickers in Venezuela who, he feels, were the real culprits in that incident.

Mr. Levine’s own experience yields concrete evidence that drug traffickers favor the “blind mule” tactic. “Years ago, as an undercover cop, I traveled to Bangkok, Thailand, posing as a drug dealer and bought a large amount of drugs from an international drug trafficker. I asked him how to smuggle the drugs into the United States, and he told me, ‘Put the drugs in suitcases with false bottoms and then go find some unsuspecting tourists or GIs (members of the U.S. armed forces) who will be willing to take the suitcases to the States for pay. Tell them that you’re trying to get jewels across the border to evade taxes.’ ” This plot, described by a master criminal, shares many eerie similarities to the bachurim’s story.

Convincing the Court

When Michael Levine arrived in Japan this past July, he was already familiar with the country and its people. “I had visited Japan before, and I’ve also studied martial arts, so I’m familiar with their way of thinking. In fact,” he laughs, “I had much more of a new cultural experience when I interacted with the chassidim I met there.”

Mr. Levine also describes his experience with the religious askanim as a positive one. “I was treated wonderfully by Chabad in Japan; they even drove me to the airport. I interacted with chassidim throughout my stay there, and I was pleasantly surprised to discover that they were all wonderful people.” Ironically, Mr. Levine, who lives in Monsey, had a much deeper exposure to chassidim in faraway Japan than he had ever experienced back in New York.

The trial notwithstanding, Japan, says Michael Levine, is a pleasant place to visit. “The first thing that you notice there is that the streets are spotless. Everything is immaculate and orderly. There is much less crime than in comparable parts of the West. The Japanese people themselves tend to be friendly and smile a lot. I tried to learn as much Japanese as I could, but many of them laughed at my attempts to speak the language.”

He spent ten days in Japan, most of which were dedicated to consultations with the defense team and other preparations for his appearance in court. Then the day of his testimony arrived. In the courtroom, his experience paralleled, to a large degree, that of a witness in a trial in the United States. He was called up as a witness and seated, along with an interpreter, at a table facing the high bench where the panel of three judges sat. Yoel Zev, the defendant, was brought into the court in shackles and then released; he was seated to Mr. Levine’s right and surrounded by guards. The prosecutor sat to his left. The judges were dressed in black robes.

While the courtroom experience was similar to the familiar territory of the United States, Mr. Levine emphasized the differences in the Japanese judicial system. Trials are adjudicated by a panel of three judges, rather than a jury and single judge who appear in American trials. A trial consists of multiple hearings spread out over the course of a year, while a trial in the United States is often concluded in a matter of days.

In his testimony, Mr. Levine identified several aspects of the boys’ behavior that point to their innocence. “Before the boys left Israel, they purchased new suitcases, but when they arrived in Amsterdam, their contacts told them to throw the suitcases away and gave them different luggage. A person who knows that he’s going to be smuggling drugs would not have bought new luggage. Furthermore, one of the boys tried to open the double-bottom suitcase in Amsterdam and doing so, accidentally tore the lining. He left it damaged, which is bound to attract the attention of a customs inspector. That’s not something you do if you know that you’ve got contraband in your luggage.”

In addition, the boys all traveled with their real names on their passports, and when they arrived in Japan, they all went to the same customs inspector — something that professional “mules” would never do, to minimize the chances of an entire group being caught.

The boys’ behavior after their arrest also points to their innocence, Mr. Levine adds. As soon as they were detained, they offered to help the authorities by taking them to the hotel where their contacts were staying, or at least by calling them from the police station. A professional drug courier would never make such an offer. The police refused the boys’ offer and thus, in Mr. Levine’s view, allowed the real criminals to escape.

“In the United States, the procedure followed in such situations is called a ‘controlled delivery’. The mule is essentially turned into a double agent. He’s wired with a hidden microphone and camera and sent to deliver the drugs, enabling the police to trap the real smugglers. Japanese police and customs officials have been trained in this tactic as well, but it seems that the police on that day were not properly trained, or else they weren’t prepared for that kind of operation. In any event, there’s no excuse for the fact that they didn’t put the boys on the telephone with their contacts. They could have gotten valuable evidence that way.”

Mr. Levine walked a fine line between pointing out the mistakes that had been made and being overly critical of the Japanese authorities. “The Japanese have a powerful sense of pride, and it’s very important to them not to lose face,” he explains. “I pointed out diplomatically that the situation had not been handled correctly, and that when something like this happens in the United States, prosecutors do not press charges when the police did not act correctly.” True to his strong feelings on the subject, Mr. Levine added that by failing to pursue the handlers, the police had essentially worked on behalf of the drug traffickers themselves. “They were very surprised,” he relates. “They had never heard anything like that before.”

Levine, who says he is convinced that the boys are innocent, adds that his very appearance in court was itself groundbreaking. “I was the first foreign police procedures expert to testify in a Japanese court,” he relates. “In the court, the interpreter even commented to me, ‘This is history.’ ”

Truth or Consequences

Another expert witness retained by the askanim involved in the defense is Gershon Ben-Shakhar, a professor of psychology at Hebrew University in Jerusalem and an internationally renowned expert on polygraphs. After the young men’s arrest, they willingly submitted to a polygraph test in order to prove their innocence. All three passed the test, with results proving “No Knowledge”.

But the prosecution countered the results with the testimony of Ms. Reiko Suzuki, the technician who conducted the tests. Ms. Suzuki claimed in her post-hoc testimony, contrary to her initial findings of “No knowledge”, that the boys still might have had “vague knowledge” or “suspicion” of the illicit contents of their luggage.

Understandably, the boys’ claim that they were deceived was met with no small measure of skepticism from the Japanese authorities. After all, they reasoned, the request to transport false-bottomed suitcases into Japan should have aroused the boys’ suspicions immediately. How did they not suspect that they might be carrying drugs? Thus, the authorities reasoned, they must be lying.

The defense responded to this reasoning by introducing the Japanese court to chassidic lifestyle. While the average twenty-first-century youth is certainly familiar with the concept of illegal drugs, young chassidim are generally not. To explain this point to the court, the mashgiach of the boys’ yeshivah to testified in Japan; further testimony was given by Rabbi Moshe Dovid Niederman, president of the United Jewish Organizations of Williamsburg, and a renowned askan in his own right, with years of experience helping Jewish refugees and Jews who have been imprisoned. Like the jailed youths, Rabbi Niederman is a Satmar chassid. He explained to the court how the defendants could live in a city and still be shielded from outside influences.

“My job was to demonstrate and explain to the court how it is possible that the members of our community drive cars, run businesses, yet still remain strictly isolated from the world at large,” says Rabbi Niederman. “That meant explaining to them what it means to live a life in which every step, from when you wake up in the morning until you go to sleep at night, is completely governed by Torah principles. They have no familiarity with the ways of secular society — how could they have known?”

To refute Ms. Suzuki’s testimony and strengthen the position of “how could they have known,” the defense team solicited Professor Gershon Ben-Shakhar’s assistance. The professor had been unaware of the case until Rabbi Meilech Bindinger, one of the askanim involved, contacted him. Upon reviewing the details and relevant documentation, the professor became convinced of the boys’ innocence.

Professor Ben-Shakhar’s office on the Hebrew University campus is a compact room, sparsely furnished and lined with books, accessible via a maze of corridors and staircases. From the small office, Japan has never seemed more remote. But as he discusses the situation that brought him there, the Far East takes on a frightening immediacy.

The professor gives a bit of general background about polygraph tests. He speaks in the measured tones one might expect of an academic; his English is impeccable, tinged with a faint accent. In truth, he explains, there is no single procedure known as a “polygraph test.” A polygraph is a machine that is capable of simultaneously reading several physiological measures. The standard polygraph measures at least three different physiological reactions: changes in skin resistance mediated by the activity of sweat glands, changes in blood pressure (and sometimes heart rate), and changes in respiration.

Although the polygraph is often used in criminal investigations, the machine itself does not identify deception. The polygraph machine merely detects physiological signs of arousal. In order to draw conclusions from the results of a polygraph test, an investigator must construct a series of questions and develop a rationale to explain why the subject’s reactions warrant his conclusions.

When used as a “lie detector,” a polygraph machine is far from conclusive. While a person may react to certain questions with signs of arousal, such a reaction does not necessarily indicate guilt or deception. Innocent people can fail a polygraph test, and guilty parties can pass it. In fact, the use of polygraph tests in criminal investigations is the subject of significant controversy. In Israel, polygraph results are not accepted by the courts as evidence in criminal cases. In the United States, the issue is much more complex; different states have different policies on the subject, and the admissibility of polygraph results can usually be debated in court on a case-by-case basis.

When the polygraph was originally invented, psychologists believed — naively, the professor adds — that the physiological changes it monitors are a reliable indication of deception. Investigators assumed that a suspect could be asked point-blank whether he had committed a crime, and the polygraph machine would reveal whether he was telling the truth. Scientists have since come to recognize, however, that the changes identified by a polygraph can be triggered by any of a variety of factors, including a sudden, unexpected noise or even a degree of mental effort such as that required to multiply two-digit numbers. As a result, the reliability of a polygraph as a “lie detector” has been seriously challenged.

One solution to this flaw, which enjoys popularity in many Western countries, is the Controlled Question Test or CQT (also known as the Comparison Question Test). This more sophisticated test still employs the machine to detect deception, but it utilizes additional questions to shed light on the meaning of the subject’s physiological responses. In a criminal investigation, for instance, a suspect may be asked a direct question, such as whether he committed the crime. This question will be accompanied by other questions, known as “control questions,” which are of a more general nature and are not directly related to the case at hand. The suspect may be asked, for instance, whether he has ever violated the law. In the case of a theft, the suspect may be asked whether he has ever taken anything that did not belong to him. The premise of the CQT is that every individual will exhibit signs of arousal when asked such questions, which are mildly threatening and relate to infractions that most people are likely to have committed. However, if a suspect reacts more strongly when denying involvement in the specific crime under investigation, then it can be concluded that he is lying about that.

Professor Ben-Shakhar feels that even the CQT is not a reliable method of detecting deception, since even truthful responses can be accompanied by signs of extreme arousal under the circumstances of such a test. “Imagine that a theft has taken place,” the professor explains, “and the police have taken an innocent person into custody. He is interrogated by an officer and asked if he was the thief. Knowing that he is under suspicion and that he is facing potential imprisonment, he is likely to find the question highly threatening and to react strongly even if he is innocent.” Consequently, Professor Ben-Shakhar discourages the use of the CQT as an investigative tool, a position about which he has written extensively.

Although some psychologists do endorse the use of the Controlled Question Test, there is another common use of polygraphs which scientists view as unreliable. Polygraph machines are often thought to be a general indication of honesty, and some employers and government agencies use the polygraph as part of the screening process for applicants. Since these tests are not used to determine the answers to specific questions, but rather to assess the applicant’s overall integrity, even the supporters of the CQT in the scientific community view such polygraph tests as ineffective.

Threatening Questions

One approach that Professor Ben-Shakhar does strongly endorse is known as the Concealed Information Test, or CIT. This form of polygraph test, once known as the Guilty Knowledge Test, does not seek to identify deception; rather, it is designed to detect concealed knowledge. Its strength, according to the professor, lies in the fact that it uses questions that innocent people are not likely to perceive as threatening. The investigator formulates a series of questions, often in multiple choice style, and deliberately includes information that can be known only by the true perpetrator. If a suspect reacts more strongly to the option that can be known only by the perpetrator, he can be identified as the possessor of the “guilty knowledge.”

In the case of a theft, the investigator’s questions might relate to the object that was stolen or the method used to carry out the theft. For example, the investigator might ask the subject, “What did you steal: a gold watch, a diamond ring, a necklace, or a bracelet?” He might ask, “How did you break into the house: through the front window, through the side door, or through the rear entrance?” In each of these cases, the true perpetrator of the crime will exhibit the strongest reaction when presented with the option that is true, while anyone who did not commit the crime has no reason to react more strongly to any one choice than to the others. The CIT is not foolproof, but the professor does feel that it can be used reliably in criminal investigations.

There is only one country in the world where investigators use the CIT exclusively: Japan. Each of the three boys was interrogated using the CIT approach, with several questions whose answers they could have known only if they were willing participants in the scheme. Professor Ben-Shakhar maintains that the test results provided powerful evidence of their innocence.

Lose-Lose?

One of the most striking aspects of this saga is the way that it has drawn in numerous players from across the spectrum of society. In fact, Professor Ben-Shakhar relates that the outpouring of assistance for the bachurim made a deep impression on him. “I was extremely impressed by what I saw in the chareidi world, the way that so many people are investing so much time and effort to help a couple of young boys whom they don’t know, whom they’ve never met. In fact, one of the rabbis involved in the case, Rabbi Weiss of Antwerp, told me that for the past two years, he has put aside everything else and has been involved in nothing other than this case. It’s really incredible.”

Before Professor Ben-Shakhar joined the effort to secure the bachurim’s release, he had visited Japan twice, to deliver talks on the subject of polygraphs. He is even personally acquainted with the polygraph expert Ms. Suzuki. Japan, he says, is clean, friendly, and safe. In Kyoto, for instance, people leave their bicycles on the street unlocked. On the other hand, he notes that Japan is typified by a rigid adherence to bureaucracy and hierarchy that is, perhaps, the downside of the Japanese way of life. “In this sense, I perceive Japanese culture as the extreme opposite of Israeli culture,” he smirks. “In Israel, after all, we are used to finding clever ways of doing things and operating outside of the rules. In Japan, you cannot deviate from regulations even by one inch.” That rigidity spills into, and typifies, the judicial system.

When the askanim first contacted Professor Ben-Shakhar, all they asked was that he write an expert opinion refuting Ms. Suzuki’s testimony. The court was no longer allowing live witnesses, but the written testimony of an expert could be presented. The professor was glad to oblige. “When I read the records of the case,” he relates, “I became rather irritated. Ms. Suzuki’s testimony essentially challenged the reliability of the CIT, which is the type of polygraph test that is accepted in Japan. I felt that if they support a test, and they developed a method of using it, they have a responsibility to stick to it.”

According to Professor Ben-Shakhar, Ms. Suzuki’s supposition that the defendants might have had “vague knowledge” is utterly unsubstantiated. Her statement, he says, has no scientific basis,  nor does he believe there any evidence of such a phenomenon.

Professor Ben-Shakhar explains the absurd lose-lose scenario. “Polygraph tests are performed only with the subject’s consent, and it has to be an informed consent. Anyone taking a polygraph test must be made aware that even innocent people can fail the test. Why, then, does anyone submit to such a test? If a person knows that he is innocent, he is willing to take the risk that he might fail because he feels that he has a far greater chance of passing the test, in which case he will establish his innocence. If the boys had failed the polygraph tests, the results certainly would have been used against them in court. But now that they passed the tests, the court is simply discarding the results. Who would willingly submit to a test that can only be used against them but cannot be brought as evidence in their favor?”

After submitting his written testimony, Professor Ben-Shakhar thought that he had done his share. He was surprised, then, when he received an ecstatic e-mail from a Japanese attorney informing him that the court was willing to hear his testimony in person. So it was that on January 26, Professor Ben-Shakhar appeared in the High Court to testify on behalf of Yaakov Yosef Grunwald.

Since polygraphs are not accepted in Israeli criminal courts, it is rare that any court is graced by Professor Ben-Shakhar’s presence. Indeed, the professor relates, he has only testified in two other trials over the course of his lengthy career, but he felt that the courtroom experience in Japan was essentially identical to the trials in which he had participated in Israel. “The only thing that was different,” he remarks laughingly, “was the fact that the prosecutor approached me after the session and apologized in case he had offended me with any of his questions. The Japanese are very polite and well-mannered, and offending another person is considered a serious transgression. I could never imagine a prosecuting attorney in Israel apologizing to me after the trial.”

The court session, which was conducted through an interpreter, lasted four hours, which Rabbi Aron Nezri – one of the key askanim in the case –relates was unexpected, and which he feels is a positive sign that the judge was indeed  interested in getting at the truth.

What was it like to testify in the court? Professor Ben-Shakhar smiles. “At first, it was awkward because I didn’t know what to expect. I was afraid that the prosecutor would be hostile and try to trick me. But as soon as I started talking, I began to feel comfortable. I felt almost as if I was lecturing in a class at the university. I was questioned by both the prosecutor and the judge, and they both asked many technical questions. The prosecutor asked many questions about the difference between the CQT and the CIT, and the judge displayed charts from the polygraph tests and asked me to identify each physiological response on the chart. All in all, I felt at home.”

For the professor, there was an additional dimension of awkwardness at the session, due to the presence of Ms. Suzuki in the courtroom. “We are colleagues, and since I know her personally, I approached her after my testimony to say hello. I felt it was only polite to do that, but she seemed reluctant,” the professor relates sadly. “I tried to explain to her that I felt I was actually defending her profession, that her testimony had essentially discredited her own test. After all, what kind of test can it be if the results indicate that the boys are guilty regardless of whether they pass or fail?”

On February 28, Professor Ben-Shakhar returned to Japan for another hearing. This time, though, it was not the professor who was on the witness stand, but rather Ms. Reiko Suzuki. The prosecution hoped to discredit the results of the polygraph tests, with Ms. Suzuki’s help, and the professor made the long trip from Jerusalem to advise the defense team on how to respond to her testimony.

According to Rabbi Nezri, during the course of Ms. Suzuki’s testimony, it because apparent that she had strayed from her role as a neutral witness. “As a polygraph technician, she is not supposed to take sides in the case. But her behavior indicates collusion with the prosecution.” The prosecutor spoke at great length while he questioned her, taking care to ask only questions that required brief answers—which the defense team interpreted as a deliberate attempt to cover up deception.

“Under cross examination from the defense, she was caught in a lie at least twice,” Rabbi Nezri adds. “Furthermore, she contradicted many things she had said in previous testimony, and she was being particularly evasive. Her claim of ‘vague knowledge’ is at best speculation and at worst an outright lie. And even if we do give her the benefit of the doubt and call it speculation, there isn’t a single polygraph scientist out there who will be willing to back up her claim.” According to the askanim, Professor Ben-Shakhar expressed surprise and disappointment at his colleague’s conduct. As for the judge, it remains to be seen whether he understood the complexities of the issue.

Surprising Flexibility

According to Rabbi Nezri, the appeals court has already demonstrated a surprising (by Japanese standards) and unusual degree of flexibility by reopening the trial and taking this additional testimony into account, which he hopes will bode well for the trial’s conclusion.

Regarding Yosef Zev’s trial, the askanim began to press for the court to accept various pieces of evidence that the previous judge had refused to admit. Newly-appointed Judge Hatoko seemed to have a milder temperament than that of his predecessor, and he agreed to admit some new testimony, although he refused to override the previous judge’s decision not to accept any more live witnesses.

So, while Professor Ben-Shakhar was recruited to testify at Yaakov Yosef’s trial, his appearance in court may bode well for Yoel Zev as well. Rabbi Nezri relates that Judge Hatoko agreed to accept Professor Ben-Shakhar’s written testimony (although he could not testify live) and is waiting to see the outcome of the debate in Yaakov Yosef’s case before he renders a decision in that of Yoel Zev. “He apologized to Yoel Zev three times for keeping him in detention longer,” Rabbi Nezri says, “but he stressed that it is for his own benefit. This will give him time to determine if the results of the polygraph tests can be used in Yoel Zev’s favor, based on what happens in the other case.” Thus, while the two cases cannot be officially linked, the outcome of Yoel Zev’s trial has become unofficially dependent (at least partially) on the court’s judgement in Yaakov Yosef’s case.

Only time will tell if the testimony of these expert witnesses has succeeded in swaying the judges. And although the askanim have stopped at nothing to retain the services of the most experienced experts in their respective fields, “the kings’ heart lies is in the hand of G-d.”

(Originally featured in Mishpacha, Issue 350)