Defendants’ rights
No sooner had Supreme Court Justice Yoram Danziger returned to the bench, he found himself at loggerheads with Court President Dorit Beinisch a few days ago over a key issue of defendants’ rights.
In a minority opinion, Danziger asserted that details of classified internal probes in any organization – where testimony was given with the understanding that it remain confidential – cannot be handed over to police, or used as prosecution evidence.
The scathing disagreement’s details aside, Danziger’s dogged dissent and ardent defense of human rights were refreshing. Yet we nearly lost this independent nonconformist voice in our highest judicial echelon.
Danziger spent the past five months on a leave of absence, having become Israel’s first Supreme Court justice interrogated under caution in the context of a criminal case. It all had to do with the corruption charges leveled against Bat Yam Mayor Shlomi Lahiani.
During Lahiani’s grilling it emerged that prior to Danziger’s Supreme Court appointment in 2007, he advised Lahiani free of charge – among other ties between the two. This generated suspicions of bribery.
Only last week did Attorney-general Yehuda Weinstein finally close the case on the grounds of “lack of guilt.”
These three words facilitated Danziger’s immediate return to the court. However, had State Attorney Moshe Lador had his way, Danziger would have been let off for “lack of evidence.”
This alternative set of three words would have barred Danziger’s comeback and cut short his promising career.
There was never much of a convincing case against Danziger, or any serious prospect of indicting him. Yet his future hinged on how the police and prosecution explain why he’s not put on trial.
This legal hot potato was tossed to Weinstein, who had to choose how to close a questionable case that couldn’t be pursued further. After too long a time, the AG finally reached the only conscionable decision.
Although Weinstein did the right thing in the end, the entire episode disturbingly demonstrates how the prosecution and the police can arbitrarily destroy reputations. No member of the public is immune.
The very idea that both policemen and prosecutors wield the authority to determine that someone might be guilty, but that not enough corroboration could be dug up to underpin suspicion, means that our law-enforcers possess the power to keep dark clouds hanging over the head of anyone they target.
Moreover, the Israel Police – chronically tainted with glory-seeking and publicity stunts – is empowered to recommend to prosecutors whether or not to prosecute. This shouldn’t altogether be a police prerogative.
The results of police investigations ought to be passed on to the prosecution, which, we hope, is capable of drawing its own learned conclusions.
In effect, our officers are permitted to intimate – even when backing down from unfounded accusations – that there’s no smoke without fire. It shouldn’t be up to them to advocate whether to press ahead with prosecution and they certainly shouldn’t be entitled to declare an individual innocent, or just a lucky miscreant who beat the system and got away with malfeasance.
Any equivocations on why a case is dropped might potentially smear the blameless, without the injured party being able to mount any defense.
Trial can clear defendants’ names, but vague hints of culpability cannot be effectively rebutted in the absence of due process – i.e. witnesses, evidence, cross-examination, verdict and appeals. Only a clear conviction should signify guilt, not a willful ruling by a bureaucrat, who needs to substantiate nothing to trash anyone.
Under our laws, the prosecution must prove guilt. It’s not incumbent upon the accused to establish innocence. Therefore, it’s time for the Knesset to legislate against the quirk in our legal system that differentiates between reasons not to try a suspect.
This oddity must be erased. Because hypothetically it can impact anyone, eliminating the oddity should be everyone’s concern.
A person who isn’t indicted – regardless of his/her public standing and the commotion drummed up in a particular case – deserves the presumption of innocence no matter what the private hunches of investigators/prosecutors.
Different categories of not-guilty shouldn’t be tolerated.