Civil Fights: Due process undermined

One cannot blame Supreme Court justices for being as outraged as other Israelis by former president Moshe Katsav’s plea bargain. But unlike ordinary Israelis, the justices cannot express their views without influencing the outcome of the case. Thus by agreeing to hear several petitions against the plea bargain, the court has undermined one of the key values it is sworn to uphold: the right to a fair trial.

As Justice Minister Daniel Friedmann aptly noted, even the initial hearing was highly prejudicial: Given the justices’ harsh comments about the deal during that session, it would have been difficult for any lower court to then approve it, even had the justices ultimately rejected the petitions on procedural grounds: that deciding whether or not to accept a plea bargain is – as the law in fact states – the trial court’s job.

But by issuing a show-cause order, which indicates that they intend to decide the petitions on their merits, the justices have made the situation infinitely worse.

Should they ultimately reject the petitions on the grounds that the deal is not so unreasonable as to justify their intervention, this would prejudice the ability of the petitioners, who include two of Katsav’s alleged victims, to obtain a fair hearing in the trial court. In theory, a trial court is free to reject any plea bargain, whereas the High Court of Justice may overturn an attorney-general’s decision only if it is extremely unreasonable. Yet in practice, no lower court would overturn a bargain that the High Court has approved.

Given the justices’ comments to date, however, it seems far more likely that they will ultimately accept the petitions. If so, Attorney-General Menachem Mazuz would essentially be forced to charge Katsav with raping one former employee and committing lesser sexual offenses against another, as these are the two aspects of the plea bargain that the court has castigated during the hearing: the absence of rape charges and the lack of any charges at all relating to the second employee.

Yet once the nation’s highest court has ordered Katsav’s indictment, it would be very hard for any trial court to hear the evidence fairly and acquit him if warranted. After all, Mazuz’s main reason for not indicting Katsav on these counts was his belief that the evidence failed to provide a reasonable chance of conviction, which is the standard test of whether to indict. Thus no matter how strongly the court stresses in its ruling that the evidence is only prima facie, and does not necessarily prove Katsav’s guilt, the fact remains that by overturning Mazuz’s decision, it is essentially declaring that it considers the evidence strong enough to provide a reasonable chance of conviction. And after that, how could any lower court presume to disagree?

JUST HOW strongly High Court intervention can affect a trial court is evident from the rare precedents in this area.

In 1990, for instance, the High Court overturned then attorney-general Yosef Harish’s decision not to indict a group of senior bankers whose share manipulations caused a severe stock market crash in 1983. The case therefore went to trial, and after what was then one of the longest and most expensive trials in Israel’s history (two and a half years and an estimated $30 million), the trial court duly convicted the bankers and sentenced them to prison. But the bankers appealed – whereupon that same Supreme Court that had ordered their indictment overturned a key element of the conviction and threw out their jail sentences.

Similarly, in 1989, the court overturned the attorney-general’s decision not to indict Yediot Aharonot‘s editor-in-chief and one of its reporters for violating the sub judice laws. A trial court duly convicted them. Yet they, too, were acquitted on appeal.

What is clear from both cases is that when the High Court orders an indictment, it is very hard for the trial court not to feel an obligation to convict – even though the High Court, unlike the trial court, has not examined the evidence in depth or heard witnesses. This clearly undermines the defendant’s right to a fair trial. And even if, as in both these examples, the defendant is fully or partially acquitted on appeal, it will have taken him additional years in court, and additional thousands, or millions, of shekels in legal fees, in order to obtain a verdict that he might have been able to obtain the first time around with an unprejudiced trial court.

MOREOVER, IT is far from clear that such court-ordered indictments serve the public interest. Any trial consumes court time and public funds, both of which are in short supply. That is precisely why prosecutors try not to waste either commodity on cases that they do not deem to have a reasonable chance of conviction. And a Katsav trial would assuredly be both lengthy and expensive. Thus if Mazuz – who, unlike the justices, has examined the evidence in depth – truly considers it insufficient to convict Katsav on serious charges, he is right to save the time and money by signing a plea bargain on minor charges.

Clearly, the complainants have as much right to a fair hearing as Katsav does. Yet their right would in no way have been compromised had the High Court refused to hear their petitions: They could have raised the same arguments in the trial court that considered the plea bargain, and had that court rejected the deal, Mazuz would still have been forced to either go to trial or reopen negotiations on a bargain less favorable to Katsav.

The right to a fair hearing is a fundamental component of any justice system worthy of the name. But by choosing to rule on the plea bargain themselves rather than leaving the decision to the trial court – where by law it belongs – the justices have irremediably undermined one or the other of the parties’ right to due process, regardless of how it ultimately rules.

Somehow, one would expect better from our self-proclaimed guardians of the rule of law.