NJ Law

By ABIGAIL KLEIN
August 27, 2010 16:42

Israel trip has an effect on 4 NJ prosecutors.




LEGAL EAGLES at the Knesset. From left, Tom Kearney, Vered Adoni, Ron McCormick and Cathy Fantuzzi.

New Jersey prosecutors 311. (photo credit: Ofer Lichtig)

Haifa native Vered Adoni did not know much about Israel’s legal system when she volunteered to lead a professional exchange trip for the Bergen County New Jersey prosecutor’s office. She assumed it was much like the American system.

But after nine days of meetings with Israeli lawmakers, law-enforcement personnel, professors and judges last spring, she and three fellow assistant prosecutors came away enlightened. Now they are sharing what they learned and looking at ways to continue the dialogue.

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“The focus was on anything and everything that happens from the moment a crime is committed to when an appeal takes place,” said the New York-educated Adoni. “We were fascinated by the differences between the two legal systems. We were just sponges for information.”

The point of the program was not to introduce procedural changes in New Jersey’s most populous county – Jews comprise about 10 percent of the one million residents – but to provide a horizon-broadening opportunity for the 60 assistant prosecutors to compare and contrast criminal justice in another democracy, said Bergen County Prosecutor John Molinelli.

“I wanted our lawyers to learn how the administration of justice is accomplished in foreign countries, particularly in those jurisdictions where social settings would dictate a heightened awareness of the rights of both the victims and the accused,” said Molinelli.

The program also was intended to forge relationships among members of the Israeli and New Jersey bar associations. In July, Molinelli received an award from the UJA of Northern New Jersey – which facilitated the exchange – for his efforts in creating “ambassadors” between the two communities. Hoping to make the exchange an annual event, the UJA steering committee hopes to sponsor a visit from four Israeli prosecutors next June.

Adoni and colleagues Catherine Fantuzzi, Thomas Kearney and Ron McCormick translated their copious notes into PowerPoint presentations for the other assistant prosecutors. Emphasizing the relevance of their findings, they pointed out that Israel and New Jersey have similar square mileage, population, crime rates, numbers of police officers and security personnel, and vulnerability to terror threats.

The trip, said Adoni, “opened up a whole world for the four of us and, after the presentation, for the office as well. Some of the other prosecutors had said to us that Israel was not on the top of their list of places to visit. But afterward, Cathy [Fantuzzi] said she’d go again and encouraged everyone else to go, too.

“For me, as an Israeli and a Jew, I feel I have done my job and created three more fans of the State of Israel who otherwise wouldn’t know anything about it other than what they see on the news.”

In the spirit of talk-show host David Letterman, Fantuzzi organized her thoughts into humorous “Top 10 Reasons to be an Israeli Prosecutor” and “Top 10 Reasons Not to be an Israeli Prosecutor” lists (see sidebar). The first list noted advantages such as liberal family, vacation and overtime policies; the second included items such as lenient sentencing laws and the absence of a jury system.

Because trial by jury is a cornerstone of the American criminal justice system, that particular item was a real eye-opener for the visitors.

“We belong to the same Anglo-American adversarial tradition and we seem to be facing a lot of the same problems, such as high caseloads leading to a high rate of plea bargaining, but we don’t have a jury system here,” explained Talia Fisher, senior lecturer and director of the Taubenschlag Institute of Criminal Law at Tel Aviv University.

FISHER TOLD the New Jersey prosecutors that this is a remnant of colonial rule prior to the state’s independence. “During the British Mandate, they didn’t want the ‘natives’ to adjudicate cases; they wanted professional English judges. So, to this day, judges here decide questions of guilt and sentencing.”

When they later discussed the issue with Tel Aviv District Court President Devorah Berliner and several of her judges, the Israelis expressed wariness at the very idea of relying on laymen with no legal training.

“They had a hard time understanding how we can conduct a trial in front of 12 people from different backgrounds,” said Adoni. “And we have a hard time understanding how a judge has so much power in deciding the fate of the accused.”

The visitors learned from their session with Nazareth Deputy Prosecutor Shalva Levine that Israeli prosecutors also wield more power than do their American colleagues.

“In the United States, prosecutors cannot make a decision to indict; that decision is made by a grand jury to whom we present the evidence,” said Adoni. “In Israel, indictment is the sole decision of the prosecutor.”

Moreover, Israeli prosecutors can attempt to argue that a defendant’s silence is indicative of guilt, Adoni said. “One of the fundamental rights in the United States is the right to remain silent, and if, God forbid, a prosecutor comments on a defendant’s silence, it results in a mistrial. So this was a shocker for us.”

They were equally surprised to learn that most Israeli crimes carry no minimum sentences. MK David Rotem, chairman of the Knesset’s Constitution, Law, and Justice Committee, told the delegation that he is looking into the possibility of introducing such requirements.

“Israeli judges can impose any jail time they want, as long as they don’t go past the maximum,” Adoni related. “We told Rotem that we thought this gave too much power and discretion to judges. He challenged us as to why he thought we could be wrong, and explained the constraints faced by his committee as lawyers and prosecutors are pulling in different directions.”

They better understood Rotem’s dilemma after a group of Israeli public defenders explained that the current sentencing laws generally benefit their clients. And those clients are not necessarily destitute. In Israel, even wealthy defendants can qualify for free representation if they meet certain criteria. Adoni said their hosts “were astonished to learn that money is the only issue” determining eligibility for public defense in the States. Another wide gap the visitors discovered is that the supreme courts of the United States and Israel function quite differently. The Israeli chief justices take on an overwhelming 10,000 cases annually, compared to fewer than 100 in the US Supreme Court.

“That was incredible from our perspective,” Adoni said. “The US Supreme Court gets to pick and choose which cases to hear, but the Israeli Supreme Court must consider each and every case brought before it because they sit not only as [the final] court of appeals but also as the high court of justice. Because of the number of cases, state’s attorneys have a very busy appellate role. We wondered why this can’t be changed. And we learned that certain issues are being worked on, but politics makes change tough.”

Though the New Jersey delegation’s interest in these marked differences between the legal systems is mostly academic, they identified several practical areas where they and their Israeli counterparts might benefit from sharing knowledge and ideas.

For example, coming from a county where law enforcers are increasingly sensitive to the challenges of ethnic and racial diversity, the prosecutors were attentive to Hebrew University criminologist Badi Hasisi’s assessment of how different Israeli populations perceive the police.

Hasisi said that attitudes toward police officers in the West Bank had soured in the past decade among both Jewish residents of Judea and Samaria, largely as a result of the 2005 disengagement, and among Arab-Israelis in the wake of clashes during the intifada several years previously.

Having dealt with much of the fallout surrounding the 2001 terror attacks across the river in Manhattan and the continuing specter of Islamist hostilities, the Bergen prosecutors also took a strong practical interest in Hasisi’s recently published research suggesting that fighting terror produces a “zero-sum” effect on police performance.

“When police serving Jewish populations have to deal with terror, they neglect their usual missions in crime-fighting,” he told them. “The inverse is true for police serving Arab populations: When the threat of terror is high, they do very well because, for example, the roadblocks they set up to find terrorists also help them find drug smugglers. This tells us something about moving resources to deal with terror’s byproducts.”


IN NAZARETH, Levine briefed the group on the thriving drug trade along the Lebanon-Israel border, and took them to one of the smuggling hot spots. The Bergen visitors, who often deal with drug-related crime, took note of this issue as a potentially worthwhile area for professional exchange.

Adoni was pleased to learn, during a tour of a Tiberias prison, that both Americans and Israelis share an emphasis on rehabilitation. “The legal system’s goal here is not only to punish but also to rehabilitate and educate,” she said. “It was very apparent that they attempt to return the defendant to society in the best way possible.”

Fisher, the Tel Aviv University law professor, said she believes American and Israeli lawyers have much common ground to explore. “We have a lot of exchange programs with American law schools,” said Fisher, who was on sabbatical at Harvard this summer. “This connection [with the Bergen County Prosecutor’s Office] is very fruitful and we’d be happy to continue the correspondence.”


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