Numbers 35:12 – These cities shall serve you as a refuge from an avenger, so that the murderer shall not die until he stands in judgment before the congregation.
Gemora Makot 8b – We learn in a beraitha that Rabbi Akiva said, “From which verse do we know that if judges in a court should see a person kill another person, they must hand the accused over to a different court for judgement? The answer is from the verse that states “until he stands in judgement”. This verse implies ‘until he stands in judgement before a different court’”.
Torah Temimah Colloquial Translation on Note #17:
It is possible to say that this beraitha is the same beraitha that is mentioned with slightly different phraseology in a variety of places in the Gemora. That beraitha reads as follows: “[if] a court sees a person kill aonther person, all of the judges become [instead] witnesses…and a witness is not able to be a judge [in a given court case.]
So according to our beraitha, this ruling is a “decree from above” and is dictated in writing by the verse above. If this is so, then the logical explanation that ‘a witness cannot be a judge in the same case’ is merely stated as giving a logical reason for the heavenly decree.
Note that in Gemora Rosh HaShannah 27a, the reason is given for Rabbi Akiva’s opinion from another set of verses in Numbers 35 (24-25) where it states “…and they will judge the one who smote…and they will save him from the avenger…”. From the juxtaposition of those verses, the Gemora concludes that it is the obligation of the judges to seek ways to find a person innocent. However, in the case where the judges actually saw the person commit the murder, they would be incapable of seeing any reason to find him innocent.
Thus, it would result from this discussion that there are two reasons why a court that witnesses a murder must turn the accused over to a different court. 1. Witnesses cannot also be judges 2. If they were judges they would not be in a position to find or seek any reason to find the person innocent. However, since a law cannot have two sources, the principle source for this law is from our verse which states that it is a “decree from above”. The reason for this decree would then be that a witness cannot also be a judge. The reason for this would be the verse ahead (35:24) alluding to the idea that the judges must seek reasons for finding the person innocent. The Tosafot in Rosh Hashanah on this section of Gemora strive to reconcile these various, different sources. However, according to the way we explain it above, the answers to these questions are clear.
Look also in the Rambam in Chapter 1, Halacha 5 regarding the laws of a murderer. There he writes that a murderer may not be executed by the witnesses until he is brought before a court [and they try him according to the rule of law]. The Rambam then cites our verse above as support. The Kesef Mishah (a famous commentary on the Rambam) then brings support for the Rambam’s position. We, however, mention in our previous note, that the Kesef Mishna’s opinions are difficult to defend.
It is more appropriate to state that the Rambam was focusing on the our beraitha. It is somewhat difficult to understand why the Rambam did not precisely quote the law as stated in the beraitha that we have quoted per the Gemora in Sanhedrin that the witnesses/judges will need to bring him before a different court. Perhaps one can say that the Rambam was focusing on the idea mentioned by Rabbi Akiva that a witness cannot become a judge. This concept, however, is mentioned by the Rambam in the laws of witnesses in Chapter 5, Halacha 8.
Notice also that the point that the Rambam makes that our verse is the source for the law that it is forbidden for the witnesses to execute the murderer before he is tried [according to the rule of law] in a court can be explained. Behold, even though this case is only discussed in Gemora Sanhedrim [which does not quote our verse], however, it is obvious the logic applied here is a fortiori . [If judges who see a murder are not allowed to take the law into their own hands, how much more so would this be true of two ordinary individuals who see a murder committed.) The Rambam often relies on a particular verse to support a clear, simple law even though the Gemora does not explain that verse in exactly the same way. We have explained this several times in our commentary. See in particular, the note in Parshat Shmini, Chapter 10, verse 6.
Editor’s Note: The idea that religious judges who, themselves, witness a murder cannot be judges in that particular case is, I think, an important idea for our times. Religious judges who have no limit to their power is extremely ill-advised.