High Court opposes prosecution interventions with forensic experts

Petition also challenges A-G’s authority over Justice Ministry oversight czar.

February 20, 2017 00:00
2 minute read.

The Supreme Court, Jerusalem. (photo credit: Wikimedia Commons)


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The state prosecution was put on the defensive on Sunday as the High Court of Justice issued a conditional order against it, demanding it explain how its interventions with the state’s medical forensic experts’ testimony are not illegal.

Prosecutors have been battling the last few years against allegations of tampering with the written and oral testimony of its forensic experts to get them to tailor their conclusions closer to the prosecutors’ narratives in any given case.

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In the same decision on Sunday, in what may be the first step to a revolution in the balance of power between the prosecution and the attorney-general on one hand, and the Justice Ministry oversight “czar” on the other hand, the High Court did not take up the request of the petitioner, the Movement for the Quality of Government in Israel, to completely break away the oversight czar from the attorney-general’s authority.

Still, the High Court did not reject the NGO’s request, sidestepping deciding the issue by saying it had no practical real-life impacts as of yet - but also leaving the possibility open for the future that oversight czar David Rozen could become a completely independent power center in the law enforcement apparatus.

Until the Knesset passed a law revamping the oversight czar’s structure and powers in August, he was clearly under the control of the attorney-general.

Since the law was approved, the Movement for the Quality of Government and others have insisted that the oversight czar have power over the prosecution without the attorney-general being able to overrule his decisions.

In December, the High Court decided that a report under gag order written by ex-justice ministry czar Hila Gerstl, which accused the state prosecution of systematically tampering with the state’s medical forensic experts’ testimony and named and shamed individual prosecutors, would be publicly released.

That ruling marked one high point in the years-long battle between Gerstl and the state prosecution over whether medical forensic experts were state witnesses in the sense of being able to be guided toward prosecutorial conclusions, or neutral witnesses whom prosecutors should avoid talking to.

Overall the ruling was a likely win for Gerstl, as she and Rozen are both ex-judges perceived as having similar worldviews, but the prosecutors had held out hope, with a senior source noting the High Court said Rozen must give them a full hearing (which Gerstl did not do) before publicizing the report.

Even if Rozen allows changes to the report to make it more friendly to the prosecution, the report was still expected to rock the prosecution, including implicating top officials, once it is published.

But Sunday’s decision struck even deeper at the prosecution’s autonomy, suggesting the High Court is leaning toward formally prohibiting prosecutors from trying to convince forensic experts to alter some of their written declarations to better fit prosecutors’ cases.

The state was given two months to respond.

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