Legal Affairs: 'No, I'm not Mazuz's yes-man'

Outgoing state attorney defends his decisions and his harmonious partnership with the attorney-general.

By DAN IZENBERG
October 18, 2007 20:40
Legal Affairs: 'No, I'm not Mazuz's yes-man'

shendar 224. (photo credit: Ariel Jerozolimski)

 
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The almost immediate impression that outgoing State Attorney Eran Shendar makes on me is that he has not been carried away by the power he has wielded over the past three years. He is modest, unassuming and friendly. Above all, he treats the questions he is asked with respect, and answers them fully and animatedly. There is nothing the least bit arrogant or snobbish about him. The other impression that I develop over the course of our hour-long interview is that he is sensitive to the criticism he has received in the media, and has been hurt by it. I start off by pressing on perhaps the most painful wound of all, the allegations by academics, such as Professor Mordechai Kremnitzer and Attorney Yuval Elbashan of Hebrew University, who accuse him and Attorney-General Menahem Mazuz of not knowing enough about criminal law. Shendar: "I was raised in the Jerusalem District Attorney's Office and appeared in murder cases, bribery, rape and espionage. I appeared in the double-murder case in the Mashbir Latzarchan and the big bribery case - in my opinion, the biggest ever in the Jerusalem District - involving Rafi Levy, head of the Interior Ministry's Jerusalem district. Also in all the first knifing cases in Jerusalem and in negligence cases. I appeared in every type of case in the criminal code and did not do a bad job. So, if there is anything that can be said with certainty, it is that I definitely am a field expert in criminal law. One can say that the attorney-general is not an expert in criminal law. He's an expert in administrative law, he knows the civil law field, he is less of a criminal law expert. About me one cannot say that I'm an expert in the administrative area or civil law, but I most certainly know, have appeared in court and have sweated a lot in the criminal field. Critics say that you are the attorney-general's yes-man, that he chose you because he knew you would not challenge his top position in the state prosecution hierarchy as your predecessor, Edna Arbel, had challenged Mazuz's predecessor, Elyakim Rubinstein. Is it better for the rule of law, as opposed to the media, if, for example, every time I don't agree with the attorney-general I run to the newspaper and make headlines? Or, when the attorney-general decides something, I run to the papers and tell them I have the opposite opinion? Will the man on the street, in the final analysis, say that from the point of view of the rule of law, this disharmony is wonderful, it advances the goals of the rule of law? I, innocently, think that this is not good for the rule of law, and I think there are more vulgar words than "harmony." My approach is not tantamount to being a yes-man to Mazuz. There were very many instances in which we did not agree, that I did not think like he did. In some cases, he accepted my opinion and in others he did not and made a different decision. And may the media forgive me for the fact that they did not know [in which cases we had differences of opinion.] The media gets the bottom line, the final decision, and that's the way it should be. As for media "criticism" about Mazuz and I having gotten along: Is it a criticism to say that Mazuz and I work in harmony? I don't think so. I consider it a compliment. Part of working in harmony means that when I don't agree with you, I tell you. We then debate the matter openly. I try to persuade you and you try to persuade me. As a former litigant, I have a certain power of persuasion. Either I convince you or I don't, in which case you make a different decision. You have also been criticized for not "standing out" or having a strong personality. I want you to know that I suffer when I have to leave my anonymity. I don't enjoy it. Therefore, I am willing to forgo whatever pleasures the limelight may offer... However, in the final analysis, I think that what really counts is what we do, rather than what we say. For example, we filed charges of manslaughter against the youth [an Israeli Arab from Shibli village at the foot of Mt. Tabor] who rode his all-terrain vehicle on Yom Kippur [in Kfar Tabor, killing a young girl who was riding her bike]; five charges against former Finance Minister Avraham Hirchson; five charges against MK Tzahi Hanegbi; and five charges against former minister Shlomo Benizri. The media needs to personify everything, but the truth is that the state prosecution must show that it is working. In the final analysis, what the man on the street really wants is to be certain that every matter we deal with is considered on its merits. I have paid a heavy price for conducting myself without flash and putting all my energy into the work itself. If I were to favor one or two journalists and feed them scoops all the time, I could guarantee flattering press. But, because I don't play that game, it is clear to me that I must pay the price, some of which stems from the questions you have asked. It is not easy for me to pay it, but I prefer to do that than to do the alternative. Furthermore, I do have red lines, and if Mazuz were to have made decisions that crossed them, I would have said, "This is as far as I go." After I was appointed, I told the attorneys in the State Attorney's Office that if there were differences of opinion between Mazuz and me that could not be bridged, I would act. I would tell the attorney-general that on this matter of principle, I could not accept [his decision,] and I would resign. But you can't stay in the job and all the time declare in public that you think differently, because the people deserve to hear only one voice. The most controversial decision that you and Mazuz have made in your partnership of more than three years was your agreement to reach a plea bargain with former president Moshe Katsav. The final indictment agreed upon by the prosecution and Katsav's lawyers contained vastly lighter charges compared to the draft indictment prepared several months earlier, which included two rape charges and charges involving Katsav's treatment of the first A., which were dropped altogether. Not only were the charges far less serious, but the state did not even ask for a jail sentence for Katsav. The latest flip-flop in the Katsav affair was the decision to ask the court to declare that Katsav's actions constituted moral turpitude. Why did you not ask for that in the original indictment? Did you change your mind because you were intimidated by public opinion, or feared that without it you would lose the against the High Court petitions? We try to consider only what the existing law calls for. What could we do when all the sanctions for former politicians convicted of crimes involving moral turpitude were only legislated after we signed the plea bargain? [According to the new law, former public servants, including presidents of the state, stand to lose privileges they are entitled to by law if they have been convicted of crimes involving moral turpitude. No such penalties existed at the time of the plea bargain signing.] As soon as the Knesset passed the law, we immediately informed the High Court there had been a change of circumstances. All along, we believed Katsav's actions involved moral turpitude, but this fact had no practical or legal implications. Now that it does, we will definitely ask the court to declare them as such. Are you worried about the outcome of the High Court hearing, scheduled for Oct. 30, on the petitions calling for nullifying the plea bargain and ordering Mazuz to charge Katsav with the original indictment? I'm not worried about the outcome in the sense that we will have to deal with the decision, should the court decide to intervene. When I look at myself in the mirror, I still see that the alternative we chose was the least bad out of three bad alternatives. By the way, this is like asking district court judges who convict a person of murder whether they were wrong if the Supreme Court overturns their ruling. They will tell you, "We think we were right, but our judicial system determines that we must accept the ruling that we were wrong." That's how the system works. The same applies to us. Though Mazuz is considered the main culprit of the critics in the Katsav decision, you get the "credit" for the decision to prosecute Haim Ramon for inserting his tongue into the mouth of a female soldier. The most vitriolic critic was Justice Minister Daniel Friedmann, who linked your decision with previous ones by the state prosecution to put on trial Ya'acov Ne'eman when he was justice minister, and to investigate Reuven Rivlin when he was touted for the post. Friedmann, and many others, have implied that when the State Attorney civil servants don't like the minister imposed upon them - if he doesn't fit in with their "ethos" - they exploit their power to get rid of him. What do you say to these allegations? Come here tonight at 9 p.m. and you will see all the attorneys arriving with their collars turned up and wearing fedoras, sitting with their newspapers and asking, "Whom should we get rid of today?" In fact, these speculations are paranoid, and have no truth to them at all. They fit in very well with conspiracy theories, which offer those who make them a great advantage. The conspiracy theory removes suspicion from the suspect and shifts it to the other side - in other words, to us. This certainly applies in the case of Haim Ramon. We thought a crime had been committed. A panel of three judges ruled that we were right, and handed down a very severe ruling. So the critics say the judges were blinded, that they were captives of the prosecution. Or perhaps it is just possible that when a 56-year-old man, a minister who does not know the soldier, sticks his tongue into her mouth, it is a criminal offense, as we thought. In terms of probability, I would choose the second option. However, because we have less accessibility to the press than Ramon, our voice is not heard as loudly as his, and a campaign is conducted against us. That, apparently, is the price we pay.

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