Hanegbi’s character witnesses: Should the court care?

It is regrettable that leading politicians see fit to go out of their way to seek leniency for a colleague who has been duly convicted of this serious crime.

By ASHER MEIR
September 16, 2010 21:29
4 minute read.
Asher Meir.

58_asher meir. (photo credit: Courtesy)

A 2004 report by the State Comptroller’s Office indicating that MK Tzahi Hanegbi had made improper political appointments in the Environmental Protection Ministry led to a police investigation, and Hanegbi was put on trial in 2006 for fraud, perjury and electoral bribery. This July he was convicted of perjury, and his sentencing is imminent.

One of the key questions that the judges will consider is whether the transgression involves moral turpitude.

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Besides the importance of the inherent moral judgment, the ruling will determine Hanegbi’s future in politics. A person convicted of a crime of moral turpitude is prevented from holding public office for three years.

Over the past few days, the public has witnessed a bizarre spectacle of many of Hanegbi’s most prominent political rivals writing effusive letters attesting to his character and asking the court not to consider him guilty of moral turpitude, including Prime Minister Binyamin Netanyahu and Defense Minister Ehud Barak.

On the other side, the Movement for Quality Government in Israel (MQGI) issued a sharply worded statement criticizing the parade of supporters and urging the court to acknowledge moral turpitude in Hanegbi’s crime, and it is circulating a petition urging the same.

What is a character witness, and why should the court pay attention to one? Is the testimony in this case judicially meaningful, as Hanegbi’s supporters believe, or is it scurrilous as the MQGI asserts? Character testimony can take various forms. At one extreme, it can be purely judicial; when the facts are in dispute, knowledge about someone’s character may be pertinent. If the court is trying to determine whether a person instigated violence or was provoked, a flood of witnesses testifying to decades of fine conduct on the part of the defendant could do much to resolve the doubt.

At the other extreme it can be purely for clemency. Sometimes after a person has been convicted and sentenced, people will turn to the head of state (in Israel, the president) and request a pardon. A pardon acknowledges that the judicial system has done its job, but it invokes some extrajudicial standard of clemency to justify overriding the judgment.

The most familiar situation for character testimony in Israel is between these extremes: during sentencing, after the defendant has already been convicted. Judges typically have broad discretion in sentencing, and the petitioners providing character evidence evidently believe that their insights have a valid bearing on the exercise of this discretion. That is where Hanegbi finds himself.

In his case, the judges could go so far as to put him in prison (though the prosecution is demanding only probation), or let him off with a mere fine. In between looms the question of moral turpitude and its threat to his political career. Here, too, there can be a legitimate role for character testimony.

Punishment for crime is justified on many grounds. Among the most familiar are deterrence (making it expensive to commit crimes; this is by far the most important), removal (keeping criminals off the streets), retribution (“an eye for an eye”), and rehabilitation (this is mostly a factor in juvenile sentencing; prisons have a tendency to be “crime colleges” and not really a place to return to social usefulness). A person’s character could be relevant for some of these, notably removal (the testimony shows the person is not a continuing threat) or retribution (ameliorating circumstances may make retribution inappropriate in some instances).

While character testimony can in some cases be pertinent to sentencing, in my opinion the letters sent to the court do not reflect this valid purpose.

The letters sent by both Netanyahu and Barak emphasized Hanegbi’s talents as a lawmaker and the contribution he could make to public life in Israel – which would be foregone if his crime is one of moral turpitude.

This is generally, and properly, considered an extrajudicial consideration. The letters did not imply that Hanegbi is an honest person who did not mean to lie (repeatedly) before the court; they did not imply that Hanegbi is unlikely to commit perjury in the future.

It is also disconcerting that our most prominent political leaders are intervening in the case to assert that a convicted perjurer can make some kind of unique contribution to public life in Israel.

Perjury is a very severe offense that undermines the very basis of accountability in our justice system. It is regrettable that leading politicians see fit to go out of their way to seek leniency for a colleague who has been duly convicted of this serious crime. It is equally regrettable that they seek to introduce extraneous and even counterproductive considerations into a weighty judicial decision.

[email protected] Asher Meir is research director at the Business Ethics Center of Jerusalem, an independent institute in the Jerusalem College of Technology (Machon Lev).


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