Saving the state prosecution in spite of itself

An independent inspectorate must oversee the work of the state prosecution.

By YITZHAK KLEIN
FORMER PRIME MINISTER Ehud Olmert in court 370 (photo credit: Marc Israel Sellem/The Jerusalem Post)
FORMER PRIME MINISTER Ehud Olmert in court 370
(photo credit: Marc Israel Sellem/The Jerusalem Post)
Former prime minister Ehud Olmert’s acquittal on most of the serious charges levied against him while in office undermines public confidence in the state prosecution. 
When the people lose confidence in their legal system, the law compromises its ability to protect them from crime – whether it is committed on the streets or in high office.
The Olmert case merely underscores the steady erosion of public confidence in Israel’s law enforcement system.
A series of polls conducted by the Israel Democracy Institute found that the percentage of citizens expressing confidence in the state prosecution fell from 66 percent to 32 percent between 2004 and 2008. By 2010, the percentage slightly recovered; however, the Olmert episode will likely send the figure south once again.
Due to its devout secrecy, complaints about the state prosecution are mostly anecdotal. Requests for information under Israel’s Freedom of Information Act, and even court orders to produce information are stonewalled. 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.
Plea bargain negotiations are particularly infamous. Many of these negotiations would be labeled blackmail if conducted by private citizens. About 90 percent 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 levied against Olmert justified? Could convictions actually have been obtained on the lesser charges? Most people prefer not to find out – unless they have the deep pockets and fast cash of Ehud Olmert.
Occasionally the state comptroller investigates the state prosecution and these investigations typically yield harsh results. 
One comptroller report concluded that the state prosecution is incapable of fixing itself. A 2011 report recounts the story of a decade and a half of extremely critical reports, followed by the promises of three different attorneys general to correct the same faults – followed by nothing.
The state prosecution has the power to ruin the lives of ordinary citizens. And today, this power is wielded without any form of oversight. An indictment destroys a person’s reputation. In the Israeli legal system, one can be remanded to jail for months before their 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. The lack of transparency is disturbing. The attorney general issues policy directives to the state prosecution, but nobody knows if these directives are actually followed in individual cases because no comprehensive records are kept.
The solution is obvious. If Israel’s state prosecution is subjected to a lash of independent, systematic public criticism, the system will improve and public confidence will be restored.
An independent inspectorate – with the right to demand any document and question any employee – must oversee the work of the state prosecution. In order to facilitate oversight, it must impel the state prosecution to keep orderly, computerized records of all investigations. It must accept and investigate complaints against prosecutors from the general public. The inspectorate should not have the power to interfere in ongoing investigations or prosecutions – but the past should be an open book.  Its findings should be made public and accessible to all. 
The professional consensus regarding the need for such a body is broad.  Professor 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, attorney 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. These reports are made to parliament and are public. 
When established, the HMCPSI was a review board set up within the Crown Prosecution Service.  Its reports were anemic and its impact was 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 hard-hitting reports have led to 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 Yehuda Weinstein has responded with reluctant ambiguity. Weinstein has dragged his feet; buying time, making promises and failing to keep them. His latest promise was to establish an internal oversight committee for the state prosecution within a month. That was in May.
By now, an internal oversight committee within the state prosecution will not be enough to not restore the public’s confidence in the state prosecution, especially after a decade and a half of exercising power without restraint or transparency. 
Only an independent inspectorate empowered to investigate and publicly report all of the state prosecution’s functions will do. 
From now on, the state prosecution’s business must be conducted in public, criticized in public, and corrected in public. This is the only way to restore the public’s trust.
The writer is the director of policy research at the Kohelet Policy Forum.