A modified grand jury could fix our broken justice system

The long drawn out Liberman and Olmert cases are but two of many that have provoked severe criticism of the office of the attorney general (AG).

Current AG Yehuda Weinstein’s decision to close the major cases in the long drawn out investigation of former FM Liberman has caused widespread speculation about inefficiency and undue influence.

The AG’s position is onerous. According to the MFA web site, while serving as legal counsel for the Government the AG also directs the state prosecution and supervises the department that prepares and reviews proposed legislation. He has very wide powers. He may decide whether or not to indict an accused person, to investigate or close a file and to stay criminal proceedings after an indictment has been submitted. His decisions may be overruled only by the Supreme Court.

As legal advisor, he counsels the Government, the ministers, government ministries, local authorities, and other public bodies and is responsible for issuing guidelines on the interpretation of law and appropriate legal procedures. His legal opinions are accepted as authoritative interpretations of the law and are therefore binding on all government authorities.

The AG delegates much of this responsibility to the State Attorney currently Moshe Lador.

When former PM Olmert was acquitted on two main charges, the Jerusalem Post reported that legal experts agreed the acquittal dealt a major blow to the State Attorney’s Office and was particularly damaging to Lador who had very publicly pledged to take personal responsibility for the case

Prof. Yoram Shachar, a criminal law expert said Olmert’s exoneration should prompt the prosecution to conduct a major heshbon nefesh, or soul searching and that the State Attorney’s Office needs to take a good, hard look at its campaign against government corruption.

Weinstein’s predecessor, Menachem Mazuz  was no less subject to criticism as in the Greek Island Affair, in which PM Sharon was cleared in 2004 of allegations  that he used his influence to help real estate developer David Appel in return for large payments toSharon’s son Gilad. As in the Liberman case, theSharonaffair came at a critical time in Israeli politics, arising then fromSharon’s proposals to evacuate theGazastrip.

In 2010 Justice Minister Ne’eman called for supervision of the State Prosecutor’s Office after then State Comptroller Micha Lindenstrauss issued a scathing report regarding wiretapping in the kissing affair involving former Minister Haim Ramon.

According to a Y-net report of June 29, 2010, Neeman was not the only one who believed the State Prosecutor’s Office required supervision. Former Justice Minister Amnon Rubinstein said there was a need to appoint an ombudsman for the State Prosecutor’s Office in order to allow minimal supervision over this powerful institution. And former justice minister, Daniel Friedmann said an external body must be appointed to handle the failures of the State Prosecutor’s Office.

In 2010 The Israel Democracy Institute (IDI) published a report titled “The Attorney General and the State Prosecutor. Is Institutional Separation Warranted?“

A systematic examination of the legal and political regimes in 57 democratic states around the world indicated that the most prevalent configuration with respect to the functions of the state prosecution and the attorney general entails institutional separation between the legal counsel to the government and the public prosecution.

In only 37% of the democracies surveyed is the attorney general also directly responsible for the state prosecutor’s office. Thus, the situation inIsraelin which the AG (who is generally not an expert in criminal law) takes precedence over the state prosecutor and can veto his or her decisions, is quite unusual from a comparative perspective.

The key recommendation of the IDI is to institutionally separate the office of the AG and the state prosecution. This would constitute a major reform in one of the most prominent and crucial aspects of governance, which would noticeably strengthen the office of the state prosecutor inIsraeland possibly that of the AG as well.

In the light of the lengthy and reportedly complex investigations in many prominent cases and the excruciatingly difficult considerations weighing public interest and legitimate as well as illegitimate political aspects that inevitably influence decisions on whether or no to indict, it is unreasonable to place the burden on any one person; the AG. In these circumstances, a modified form of the American Grand jury system or preferably a form of preliminary hearing as used in some countries can come to the rescue in addition to adopting the recommendations of the IDI.

In the USAa grand jury determines whether a criminal indictment will be issued. According to the American bar Association “The primary function of the modern grand jury is to review the evidence presented by the prosecutor and determine whether there is probable cause to return an indictment”.

It is not suggested that theUSAgrand jury system be adopted unmodified as it suffers from several disadvantages. Normal rules of evidence don’t apply and a judge is not generally present. A judge is needed only to rule on privilege issues or issues relating to contempt.

Unlike in regular trials, grand jurors are not screened for biases or other improper factors and there is no requirement that the grand jury be instructed in the law. In the federal system, a witness cannot have his or her lawyer present in the grand jury room, although witnesses may interrupt their testimony and leave the grand jury room to consult with their lawyer

A modified form of grand jury combined with some features of a preliminary hearing as used in many countries would seem preferable. A preliminary hearing is conducted in front of a judge or judges without a jury. Unlike a regular trial the purpose is not to determine a defendant’s guilt, but rather to screen cases and determine if the evidence warrants sending the case to a regular trial. The burden of proof is much lower and the prosecution has to show only probable cause that the accused committed the alleged crime.

As all humans are fallible, certainly some change is needed so that the burden of deciding on whether or not to prosecute in highly sensitive political and other complex or controversial cases is shared by several persons. It should not rest on only one mortal, no matter how qualified and trustworthy.