Challenging Justice

“But while the courts are necessary to preserve the balance of power, they must themselves be kept in check. What makes them especially dangerous is that, unlike elected officials, they are typically not answerable to voters” [Israel’s Imperious Judiciary:- KPF – Moshe Koppel]

“Indeed, until the judiciary is brought to heel, it is open to question whether Israel can be considered a democracy at all.” [Israeli’s Judicial Tyranny: Jerusalem Post – Caroline Glick]

“The greatest human ideal of justice is only as good as the character of those who administer it, existing only if its guardians are devotees to integrity and fairness.” [Review remarks by Michael Adams PHD, Associate Professor of English, University of Texas, Austin on Licensed to Lie : Exposing Corruption in the Department of Justice by Sidney Powell]

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This essay explores a comparison of elements in Israeli judicial practices with those of the US. An Israeli attorney has proclaimed criminal law to be fairly straight forward. He views it through two basic sets of rules: “must do” and “mustn’t do” Anything within the latter list, is against the law.

The subject attorney states that the role of criminal law is to determine, according to specific facts of the case, if the behavior of the defendant was criminal or not, whether the act was intentional or not, if the act was done negligently, if the mental condition of the accused allows him to be tried and any other defined issues. Criminal offenses of fraud are serious and can result in a heavy fine or imprisonment.

The specific focus to be considered is wrongful conviction in Israel and the US. In the case of the former, considerable information was obtained from Arye Rattner, Professor of Sociology and Criminology, Haifa University. The key points he makes follow:

* During the 1980s and early 1990s,there were cases of miscarriages of justice, not in which the guilty were freed, but in which the totally innocent were severely punished, and became front page news.
* Newspaper accounts and interviews with attorneys, court records, interviews with victims of false convictions, victims of crime and firsthand knowledge ,were collected by several authors.
* It was only late in the 1990s that a series of books and articles provided a more analytic framework for understanding the problem of wrongful conviction.
* Subsequently studies pointed to some key elements as leading causes towards wrongful conviction among them – eyewitness identification, perjury by criminal justice officials, negligence by justice officials, false and coerced confessions, forensic errors and several other factors .
* Recognizing that official abuses of power does occur, appellate review represents both a safeguard for the individual accused and an opportunity to elaborate upon the rights of the individual, or that an error has occurred.
* Professor Rattner attempts to show how despite the existence of a review mechanism in the Israeli criminal justice system, a general attitude that judicial errors and mistakes rarely occur, defends what one may call the “sanctity of the criminal law.”
* On October 1995, Israeli Knesset adopted an amendment to Section 31 of the court law. According to the amendment , a retrial could be ordered by the Supreme Court, where real suspicion exist, that the accused had suffered miscarriage of justice The amendment indicated that every piece of evidence, new or old could be used as the subject of the application for a retrial as long as it had its own potential to exonerate , thus to justify such an application. It also made provision that whenever there is doubt that a miscarriage of justice occurred, this doubt could be sufficient and justified for a retrial.
* Of some 85 requests for retrial that were submitted to the Supreme Court after the amendment to section 31 of the Court Law, a retrial was ordered in 7 cases. Three of these were widely publicized. In 2 of these cases, those who were convicted, were fully exonerated, while in the3rd case, conviction was not overturned.

Professor Rattner ‘s conclusion is rather disquieting. He states that examination of the process in Israel, despite the amendment of the Court Law, revealed that the Supreme Court placed considerable importance on the attitude and recommendation of the Attorney General regarding requests for a retrial.

The criminal justice system, commencing with police investigation of an alleged crime and culminating in the Appellate Court, tends to ratify errors made at lower levels in the system. The further the case progresses in the system, the less chance there is that an error will be discovered and corrected. The further a case progresses in the system, the less chance there is that n error will be discovered and corrected.

According to Professor Rattner, the criminal law in Israel is in many ways an exception, it suffers from many deficiencies and from a great deal of unwillingness to admit its own errors to an extent that makes some of us wonder about the sanctity of the criminal law. What an admission! It is rather surprising that he does not address wrongful acquittal. This does occur, and obviously is no less important. Two cases, described below fall into this category and have a commonness – the police failed to interview witnesses.

The first case concerns an American yeshiva student , who died during a hike in the Judean Desert on September 10, 2014. In the first round of investigation, police and prosecutors closed the case without making any effort to interview two key witnesses and without fully confronting the main suspect and tour guide. These witnesses allegedly had incriminating evidence.

The case dragged onto several stages, possibly the most recent public report appeared on September 9, 2019 and was written by the deceased student’s father. His initial statement reads, “The bias against American victims of negligent homicide in Israel is extreme as Israel’s prosecutor’ have never once ever arrested or indicted anyone in such a situation, when the victim is an American.”

In fact, he raises many thoughtful and penetrating questions. “Why is the Israel Supreme Court giving any deference to the purported professional judgment professional judgment of biased prosecutors? It is as clear as day they are acting in the role of desperate defense attorneys for criminals and not performing as criminal prosecutors for the state.”

Upon reading more deeply into the case, one is left with the definite impression that bias against American victims of negligent homicide in Israel is extreme, since Israel’s prosecutors have never once indicted anyone in such a situation, when the victim is an American. The list of those key individuals not interrogated by the prosecutors is so large that it can only be described as shameful and embarrassing. Bias is not the prerogative of justice.

The other case which comes to mind does not involve homicide, but serves as well to demonstrate the failings of Israel’s Judiciary. It involves an Israeli Real Estate Agent, an immigrant, and his client, a 91 year old American woman, who spends approximately a quarter of the year in Israel. The case involved a civil suit and a criminal case. In the former, the judge ruled in favor of the plaintiff, the elderly woman.

Now this criminal case differed from that of the hiker, given that there were no witnesses at all. Further, it included signature forgery, extensive perjury and law infringements; and yet it was dismissed by the police as not finding any evidence of criminality. Several vital documents were not revealed to the police, primarily because none of the witnesses were interrogated by them.

Whereas the initial short form police report dated 25/02/2016, entitled, “Decision to Terminate Investigation and not to Prosecute” gives as a reason, “No criminal culpability”, investigation of the history points to either incompetence, corruption or deliberately electing not to indict. A well established Tel Aviv attorney has stated that the Israeli police are encouraged to limit indictments since there is a large shortage of prosecutors in the state.

Now, the record shows that the said police report was not sent to the plaintiff as registered mail, nor was it directed to her Israeli address. It does draw attention to the allowance in 60 days for filing an appeal. However, the plaintiff was in the US during this time.

In a prior directive of the President or Deputy President of the Supreme Court or a District Court alluding to a retrial of a criminal case, in which a final verdict had been handed down, if:

[a] A court has ruled that some evidence introduced in the case is based on falsehood or forgery, and there are grounds for supposing that without said evidence, the outcome of the trial would have been different.
[b] New facts or evidence has been uncovered which, on its own or in combination with the material originally presented to the court, is likely to change the outcome of the trial.

These are the known facts:

[1] The so-called “Authorization” document contains a forged signature. This can be verified by an available poster or a computer screen.
[2] The Real Estate Broker Act 5756-1996 clearly defines obligations and responsibilities applicable for a broker. Evidence is available to demonstrate that the defendant [a] was not licensed for the 1st 2 months of conducting business [b] prepared a document of a legal nature and [c] demands a real estate agent to be of good character. The defendant can be shown to have violated all of these conditions, as can the witnesses. And yet, to this day, the judge refuses to reopen the case.

When considering outstanding journalists, the name Evelyn Gordon is among the top. Thus, “It’s hard to imagine a former justice in any other democracy trying to orchestrate a mass judicial resignation” and “Israeli’s ‘anti-democracy mood’ stems from the fact that Israeli democracy isn’t delivering democracy’s chief good: enabling the public to influence policy. The only way to change this is by finally letting Israelis elect their MKs directly.”

In general, Israeli’s are given to be admirer’s of Israel. And yet, have not rushed to embrace representative democracy. With the American system of democracy every citizen is able to be engaged. Any citizen can approach any Congressman or Senator for matters of concern. In Israel , all public officials are totally unaccountable to citizens. When there are failings in America’s judiciary, in time they can be addressed.

Sidney Powell’s, “Licensed to Lie: Exposing Corruption in the Department of Justice”, a Best Seller book of 456 pages, covers the good and the bad of an ugly period in US judiciary history. She began her legal career as the youngest US attorney in the country. The book offers any Israeli an opportunity of knowing what is not available to him/her.

Powell has worked under 9 different US attorneys from both political parties over 10 years and in 3 districts. She has been lead counsel in more than 500 appeals. In 2014 she published the given book in which she literally quotes chapter and verse from the key trials of the century she participated.

In her book she covers a tragic suicide, a likely murder, wrongful imprisonment, and tense courtroom scenes. Readers are drawn into this compelling story, furnishing them with a frightening them perspective on justice corrupted and who should be accountable when evidence is withheld. It is a scathing attack on corrupt prosecutors, the judges who turn a blind eye to these injustices. It is about the strong-arm, illegal and unethical tactics used by headline-grabbing federal prosecutors in their narcissistic pursuit of power. Its scope reaches from the US Department of Justice to the US Senate, the FBI and the White House. Bottom line – it is about how one woman can make a difference and does.

Interestingly ,The Tulsa Law Journal of Spring 1999 is dedicated to the Judicial System in Israel. It defines the three main differences between the American and Israeli systems as [1] Israel does not have a written constitution [b] Israel does not have a jury system and [3] Israel does not have capital punishment.

About the Author
Alex Rose was born in South Africa in 1935 and lived there until departing for the US in 1977 where he spent 26 years. He is an engineering consultant. For 18 years he was employed by Westinghouse until age 60 whereupon he became self-employed. He was also formerly on the Executive of Americans for a Safe Israel and a founding member of CAMERA, New York (Committee for Accuracy in Middle East Reporting in America and today one of the largest media monitoring organizations concerned with accuracy and balanced reporting on Israel). In 2003 he and his wife made Aliyah to Israel and presently reside in Ashkelon.