Saving the state prosecution

The acquittal of Ehud Olmert on most of the serious charges levied against him while in office undermines public confidence in the State Attorney’s Office. When the people no longer have confidence in their legal system, its ability to protect them, whether against graft in high office or more ordinary crimes on the streets, is compromised.

The Olmert case merely underscores the steady erosion of public confidence in Israel’s law enforcement system and the rising tide of criticism levied against it. A series of polls conducted by the Israel Democracy Institute found that the percentage of citizens expressing confidence in the State Attorney’s Office fell by over half between 2004 and 2008, from 66 percent to 32%. The percentage recovered somewhat by 2010, but the Olmert episode will likely send the figure south again.

Complaints about the State Attorney’s Office are mostly anecdotal, because this organization is extremely secretive. Requests for information under Israel’s Freedom of Information Act, and even court orders to produce information, are met by stonewalling.

Scores of public defenders and private defense attorneys have their horror stories of inflated charge sheets and pretrial remand granted on the basis of unsubstantiated affidavits submitted by prosecutors to the courts.

Plea-bargain negotiations are particularly notorious. Many of them would be labeled blackmail if conducted by private citizens. About 90% of prosecutions in Israel end in plea bargains in which defendants, hoping to avoid costly trials and time in jail, plead guilty to lesser charges. Court oversight of these bargains is pro-forma, a policy based on decisions of the Supreme Court itself. Were the original, serious charges justified? Could convictions actually have been obtained on the lesser charges? UNLESS ONE is an Ehud Olmert, with deep pockets and nothing but money to lose, most people prefer not to find out.

Occasionally the State Comptroller investigates the State Attorney’s Office, usually with harsh results. One conclusion arising from the Comptroller’s reports is that the state prosecution is incapable of fixing itself. A 2011 report recounts the story of a decade and a half of harsh reports, followed by the promises of three different attorneysgeneral to correct the same faults, followed by... nothing.

The State Attorney’s Office possesses immense power to ruin ordinary citizens’ lives. An indictment destroys one’s reputation. One can be remanded to jail for months before one’s case is heard. Just hiring a defense attorney costs tens of thousands of shekels; if one is charged with a crime that will be heard by a district court, the cost rises to six figures. This immense power is exercised today without oversight or transparency. The attorney-general issues policy directives to the state attorney, but nobody knows whether the directives are actually followed in individual cases, because no comprehensive records are kept.

The solution would appear to be obvious.

Israel’s State Attorney’s Office will only improve, and public confidence in it restored, if it is exposed to the lash of independent, systematic criticism, conducted in public.

An independent inspectorate should be set up to oversee the work of the State Attorney’s Office. It should have the right to demand any document and question any employee of the State Prosecution Service. It should be able to compel the State Attorney’s Office to keep orderly, computerized records of all investigations in order to facilitate oversight. It should accept and investigate complaints against prosecutors from the general public. It should not have the power to interfere in ongoing investigations or prosecutions, but the past should be an open book. Its findings should be public and accessible to all.

THE PROFESSIONAL consensus regarding the need for such a body is broad. Prof. Mordechai Kremnitzer of the Israel Democracy Institute and former justice minister Daniel Friedman have penned separate proposals to establish such an inspectorate. Dr. Aviad Bakshi, Atty. Moran Nagid and this author, of the Kohelet Policy Forum, are working on another.

There are precedents. In Britain, the Crown Prosecution Service Inspectorate (HMCPSI) is an independent body charged with overseeing the work of the Crown Prosecution. It can obtain any document from the Crown Prosecution and examine the professional judgment exercised by prosecutors in pressing charges or closing a case. Is reports are made to Parliament and are public.

When established, the HMCPSI was not independent but rather a review board set up within the Crown Prosecution Service. Its reports were anemic and its impact limited. In the wake of a report by a judge, Sir Iain Glidewell, the HMCPSI was set up as an independent authority. Since then its hardhitting reports have led to a significant improvement in the performance of the Crown Prosecution.

The HMCPSI does not receive complaints from ordinary citizens. However, in the US the Office of Professional Responsibility (OPR) within the Department of Justice does investigate complaints lodged against individual prosecutors, though it is not independent of the department.

For the past two and a half years the Knesset’s Committee for State Control has been pressing the state prosecution to establish an internal oversight committee. Attorney-General Weinstein has responded by retreating into bunker mentality. He has done everything possible to drag his feet, to buy time, making promises and failing to keep them. His latest promise was to establish an internal oversight committee within a month.

That was in May.

By now, an internal oversight committee will not be enough. It cannot restore the public confidence that the state prosecution has lost, not only in the Olmert fiasco but through a decade and a half of exercising power without restraint or transparency.

Only an independent inspectorate empowered to investigate all the state prosecution’s functions, and to report its findings in public, will do. From now on, the state attorney’s business must be conducted in public, criticized in public, and corrected in public. That is the only way to save the State Attorney’s Office from itself.

The writer is director of Policy Research at the Kohelet Policy Forum.