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Why Do We Have A Conscience?

October 04, 2014

Why Do We Have A Conscience?

On the holiest day of each year three members of Temple Ohabai Sholom in Nashville are asked to address the congregation about their Jewish experiences. This day is our Day of Atonement – Yom Kippur – where we gather as a community and ask God for forgiveness and strength to become better people. This year I was honored to participate in the Congregant’s Hour. What follows are my reflections on why we have a conscience.

After God finished creating the world, who were the first five people? statue

There was Adam and Eve. There was Cain. There was Able.

When Cain was charged with killing his brother Abel, Cain drew the toughest judge in the Universe. But Cain got off with what is effectively manslaughter. He was banished and had a mark placed on his forehead.

Not a bad result for murdering your brother. How did Cain pull that off? Some folks suggest that at the time there was a fifth person in the world: Cain’s defense attorney.

Good afternoon, I am David Raybin. I am a defense attorney.

My clients have been charged with arson, burglary, contempt, DUI, extortion, forgery, grand larceny, homicide – and so on, an alphabet of woe.

Each case is serious. Each person wants the same thing. I want to turn back time to before I was arrested. I want my life back.

It is astounding to see people under such stress. In some cases they are perfectly innocent. In others they are perfectly guilty. For those that are, I do not judge but I wonder if there is remorse or consciousness of wrongdoing?

I have stolen a car

I robbed a bank

I assaulted my husband.

I have killed my wife.

Why do we have conscience? To answer that question I suggest we should first inquire where our conscience comes from.

Is regret natural?

Is regret a product of our society?

Is regret God-given?

I think the answers to these questions are all of the above. Regret may be natural, a product of our genes. But regret is certainly counter-intuitive. We have to be selfish to a degree to survive. But why have regret as an emotion? What purpose does it serve?

Regret is not the same thing as being sorry you got caught. It is an inner feeling that you have done something wrong in a more general sense. You feel bad. It is a self-governor.

Clients tell me it is a balance of risks and rewards. There is a sense that I will risk doing the bad thing notwithstanding a risk of apprehension and a knowledge that this is wrong. The police cannot be everywhere. Fortunately the self-governor controls most of us most of the time. Were that not the case we would not have a society. We would have anarchy. Thus, I think there is a general sense of individual morality.

There is also societal morality. The problem is morality is relative to the society. 70 years ago 5000 miles to your right a society thought it correct to kill 6 million Jews. The immorality of that act is reflected in the Nuremberg trials and the execution of some of the perpetrators.

150 years ago a society thought is correct to enslave African people. 500 yards to your left are the slave quarters of some of those people. The immorality of that is reflected in a civil war and a constitutional amendment prohibiting slavery.

Clearly a collective conscience can go awry. However, I am hopeful that most of the time society tries to do the right thing and promote human dignity and freedom.

Does God give us a conscience? Religion plays a dominant role in dictating behavior. This is certainly the case in our criminal justice system. In the early 1800s criminals were whipped and then branded on the inside of the palm of their right hand to show that they were felons. Indeed, when a person went to court to testify they had to raise their right hand to show that they were not a branded felon. That, by the way, is why we still raise our right hand whenever we take an oath. That ceremonial act persists to this day.

Religious leaders eventually hit on the idea of building large prisons. Instead of whipping and branding as punishment, criminals would now be forced to sit alone in their cells with a Bible and do penitence for years. It is from the word penitence that we get the term penitentiary.

But back to the question of God and the issue of conscience. I suppose you want to know if I think God exists. My answer is: “How can I not believe in God?” Nothing in my experience suggests that there is no God. Indeed, I once had a profound experience that I can only attribute to a greater power.

When my father died in Virginia, Kay and I traveled home to be with my mother and other family members. This was without doubt the worst time of my life. I could not breathe. I could not think. I was in total misery.

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When I got to Virginia, I walked behind my parent’s home to the top of a very large hill. I was alone in the woods. I was alone in my sorrow.

Suddenly my father appeared just to my right. It was so very comforting to see him. I was not afraid because he told me that he was all right. As an attorney I was taught to be cynical and to doubt everything. But as a rational person I tell you that this event with my father was as real to me as anything I have ever experienced. For the time that we were together I really was with my father. As we walked down the hill together I suddenly found myself alone. But I also found myself at peace. I know that God visited with me that day and gave me a chance to say goodbye to my father face-to-face.

Because of this experience I have always respected those who feel that they have had some personal connection with God.

I also believe that God created us. I think it took God several tries to get humans as we are today. After all, God destroyed most of the world by flood because people were wicked and incapable of forgiveness or perhaps of even being forgiven. Indeed, Moses destroyed the first set of the Ten Commandments because, in his absence, the people had also turned wicked. God had to download a second set of the Ten Commandments after Moses convinced God to give the people a second chance. God forgave them. Perhaps God has a conscience as well.

Each of us therefore carries within us that same conscience that God found in Moses. And with a conscience we also know when we have failed and when we have done wrong. But conscience has a severe consequence. It would be intolerable to carry the burden of failure forever. And so we ask for forgiveness and pardon.

As an attorney I sometimes seek a pardon for my clients. I have learned that pardons from the governor or the president bestow forgiveness but only removes the direct consequences of the conviction. A pardon does not expunge the record for the crime that my client committed. And so when we ask God to pardon and forgive us, our sins are not forgotten forever but guilt and remorse are lifted from our souls because we have acknowledged to ourselves and our Creator that we have failed. Sincere and profound regret and reflection can help reset our personal compass.

In my practice I see people every day who need to reset their personal compass. Indeed, it is because their lives are in profound disarray that they are sitting in my office in the first place. I would like to tell you that I represent these folks in serious criminal cases only out of some benign desire to help them.

Litigation is war. The truth is I enjoy the fight. The truth is I enjoy taking a complex situation and coming up with a solution where I don’t have control of all the variables. It is stressful in some ways but it is exhilarating.

People in these criminal cases, be they the accused, an alleged victim, or a material witness are not in their normal skin. They are totally different and react in unpredictable ways not only to others but to themselves. Every case is a real story and the stakes are not just money but people’s freedom and their very lives.

When taking on a case I try to address the entire person in three ways. First, why did this crime happen — if in fact there was a crime? And, if so, is my client the guilty party?

There are few people who are totally guilty or totally innocent. The truth lies somewhere between and the puzzle is to figure out where. I really like that part of it. It’s like two pilots trying to shoot each other down in an aerial dogfight. Amateur lawyers dwell on the fight; professionals value preparation. Hours and sometimes days of preparation is the only way to prevail.

Second, how can I mitigate the sin if in fact there was one? Mitigation – if my client is found guilty – requires an assessment of accountability and an argument for redemption. Forgiveness after a period of atonement. That is so difficult because I have to know my client. Every intimate detail. People are never more naked than when they face prison or the electric chair.

These tasks are simple when compared to the third phase of effective representation: how to help my client avoid some future legal entanglements so the client does not fall into past patterns that brought them to me in the first place.

When I won a major case some years ago I felt like I had painted a great masterpiece. My client got in trouble again in just six weeks and was tossed back in jail. I started wailing that the fellow had torn up the Mona Lisa I had created. My wife pointed out to me that an acquittal in a murder trial is no guarantee that a person will not quickly return to their old ways.

I need to help the clients repair their lives, and so my tool chest doesn’t just include investigators and forensic scientists. I now employ social workers and mental health experts. And I have been known to prevail on not a few clergy to help with spiritual healing.

Only by addressing these three issues can I ever have any hope of success that is both meaningful and permanent. It took me years to figure that out.

When I go to work each day I never know what will happen. God has given me the ability to do these things and enjoy them as my life’s work. It is all about dealing with people who have shattered lives either through their own fault or a terrible misadventure. And somehow in looking for self-awareness and self-assessment in others I can find those qualities in myself. It is a fantastic experience to see that which makes us human and gives us that unique quality: a sense of conscience.

My first memories date back to when I was 5 years old. I remember a happy time when my mom took me to the Howdy Doody TV show when we lived in New York. Yes, I was actually sitting in the studio with the other children in the Peanut Gallery. I was with Clarabelle the clown, Buffalo Bob, and Howdy Doody. I was only 5 but this is a  vivid memory.

But I also remember when I was 5, I spent time in a friend’s house. I saw a toy soldier that I really wanted. I coveted the toy. I took the toy. No, I stole it. I remember it to this day. It is always the first thing on my list every year at every Yom Kipper. I wish I hadn’t done it. I regret it. And I ask God to pardon me. It was my first sin but certainly not my last. Which is why I have a list.

Today we ask forgiveness for ourselves and we seek forgiveness from those whom we have wronged. But absent from today is condemnation of others. Absent from today is visiting judgment on fellow humans. That takes a greater degree of restraint and insight. We should only adjust our own conscience by our own internal clock and not that of others.

That we sit here today asking for God’s forgiveness for ourselves is proof that our conscience is not only in our genes, is not only part of our society, but our conscience is also part of our Soul. It is not an easy thing to cleanse the soul. Indeed, I suggest that God’s toughest time was yesterday when God was preparing for every Jew in the world to ask for individual forgiveness all at once.

God has given us this Torah. A book of laws. God has given us Souls which have a conscience. And God has given us the capacity for pardon and forgiveness so we can live and rejoice in our faith, our family, and our friends.

My family means everything to me. I learned morality from my parents. My father would tell us I will never do anything to embarrass you and you should never do anything to embarrass your family. That is a valuable lesson since the consequences of wrongdoing affect not only oneself but one’s family as well. And that is why it is so important that we collectively gather here both to obtain strength from each other and to seek forgiveness from each other as well.

Today is not just a ceremony. It is a celebration that we have a conscience and it is why we gather here on Yom Kipper: to ask for forgiveness.

We cannot turn back time to before we committed a wrong to ourselves or to others or to God. But we can get our life back. We can each get a fresh start.

And now that we are being refreshed by God’s pardon, Kay and I wish you and your family a wonderful and peaceful and happy new year.


Postscript.       The video of the three presentations and the Rabbi’s concluding remarks can be viewed HERE   (It will  take perhaps 30 seconds or so to load)   Randy Goldstein (whose remarks were not all recorded) is the first speaker. At minute mark 10:03 you will find Harriet Schiftan and at 35:00 are my remarks. The Rabbi is at 54:10.

David Raybin was born in Sacramento, California in 1949. His family moved to New York for a few years and then they lived in Staunton, Virginia. David graduated from Augusta Military Academy in 1967 and Virginia Commonwealth University in 1971.

David Raybin is a 1973 Order of the Coif graduate of the University of Tennessee College of Law. After graduation he served as an Assistant State Attorney General for three years. He was then hired by Tom Shriver to serve as an Assistant District Attorney in Nashville for seven years. After his service with the government, David went into private practice and is now the senior partner of Raybin & Weissman.

David practices criminal and federal civil rights law. He serves as local counsel for Children’s Rights, a non-profit involved in foster care litigation. For over twenty-five years David has represented Nashville police officers through the Fraternal Order of Police. He was twice awarded the Justice Joe Henry Award for outstanding legal writing by the Tennessee Bar Association and received the Jack Norman Award from the Nashville Bar Association for his criminal defense work.  He is also the author of the three-volume treatise Tennessee Criminal Practice and Procedure.

David married Kay Kraft at the Temple in 1976. They have two children.  Jaime Beth is a local artist and also works as a recruiter for Watkins College of Art where she took her degree. Benjamin graduated from Vanderbilt Law School and now practices with his father. David’s mother, Temple member Inge Raybin is a Nashville resident.

David L. Raybin

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