Legal Affairs: It ain't over till it's over

Anyone outraged by the closing of Olmert's Bank Leumi case should examine judicial methodology.

olmert says fuck 224.88 (photo credit: Ariel Jerozolimski )
olmert says fuck 224.88
(photo credit: Ariel Jerozolimski )
The reaction to the news that the police have recommended closing the file against Prime Minister Ehud Olmert in the case of the Bank Le'umi tender is expressive of the excitable and emotionally charged responses that are so often elicited among Israelis. Both Olmert's supporters and his detractors, not to mention the public at large, should know very well that the police recommendation is not the final word on the affair. At best, it is an indication of the strength, or lack of same, of the evidence against the prime minister that the police gathered during its investigation. Furthermore, in this particular case, the police investigators were reportedly divided about how strong the evidence was. Some wanted to recommend indicting Olmert. In the end, the final decision will be made by the new state attorney, Moshe Lador. Because Lador has been outside the Justice Ministry loop for the past few years, after retiring as Jerusalem District Attorney and going into private practice, it might take him longer to make up his mind than it would have former state attorney Eran Shendar, who followed the case closely while he was in office. Until then, we will all have to wait as patiently as possible for Lador's decision. In the meantime, I have been surprised to hear grumbling among by no means unintelligent people about the fact that if the investigation against Olmert does not lead to an indictment and is so expensive, why conduct it in the first place? Wouldn't the money have been better used had it gone to help the poor, or pay the teachers, or underwrite many other worthy and under-financed state responsibilities? The first, obvious, answer to this kind of complaint is the one mentioned above - that the investigation ain't over till it's over. But that, obviously, is a technical response. There is, of course, a good chance that Lador will, in the end, decide to close the case. If he does, will that give credence to the complaints of those who criticize the legal system for conducting investigations that end up not leading to indictments? What about indictments that do not lead to convictions? Are they, too, a waste of money? (Although the fact is today that only about one percent of suspects brought to trial on criminal charges are acquitted!) Such an approach appears to be exceedingly hard-headed and simplistically pragmatic. The police and the state prosecution receive a large number of complaints from the public. From the beginning, they have to determine which of them deserve, on the face of it, to be investigated. But there is, and must be, a limit to how opinionated law enforcement officials should be about a case they initially know nothing about. The police investigation and its assessment by whomever makes the final decision on whether to indict or not (the attorney-general, the state attorney or, in some 85 percent of the cases, the police) is aimed at determining whether there is enough evidence against the suspect to warrant putting him on trial. In most cases (unless the criminal is caught in the act or voluntarily admits his crime), the law enforcement authorities should not know the answer in advance. Even after a hopefully exhaustive investigation, and after they have determined that there is enough evidence to warrant putting the suspect on trial, they are still not the ones who know, or are supposed to know, whether the suspect is guilty of the crime or not. That is for the court to decide. THESE ARE the fundamental principles of what is euphemistically known in Israel as the "judicial methodology." This methodology obviously costs money. But it is meant to safeguard the individual's most basic human rights and with all of its many flaws, given that it is administered by human beings, it succeeds in its mission to a higher degree than any other that has been tried. Is the system worth the money it costs? That is a question for each individual to decide for himself. But those that think it is not should keep in mind that many revolutions have been fought, and many people killed, in order to bring it into their social systems. As for the particular investigation of Olmert regarding the Bank Le'umi affair, there was an additional filter which is unusual in criminal cases. Even before the matter came to the attention of the attorney-general, it was investigated by State Comptroller Micha Lindenstrauss. The investigation started at the beginning of 2006. The suspicions of criminal activity on Olmert's part were based largely on the testimony of then accountant-general Yaron Zelicha, who accused the then-finance minister of changing the terms of the tender in midstream to suit his business friends Frank Lowy and Daniel Abraham. Zelicha is admittedly a controversial figure, but his testimony obviously has some weight that cannot be dismissed out of hand. After seven months, Lindenstrauss halted his investigation and informally handed over the material to Attorney-General Menahem Mazuz. Mazuz did not like this procedure, which had no legal basis, and asked Lindenstrauss to complete his investigation. Three months later, on October 25, 2007, the state-comptroller again handed over the material to the state prosecution, this time formally, in accordance with Article 14 (c) of the State Comptroller's Law. Shendar immediately ordered the police to conduct a "preliminary examination" of the evidence to see whether it warranted a full-scale investigation. "The findings of the preliminary examination led to the conclusion that that there is sufficient evidence to justify opening a criminal investigation," Shendar wrote on January 16, 2007. Altogether, the procedures leading up to the decision to launch a criminal investigation against Olmert lasted a year, and included two non-criminal investigations by experienced investigators who came to the same conclusion - that the evidence warranted an exhaustive examination of the affair. But it must be remembered that they did not conclude that Olmert was guilty, only that there was enough evidence to warrant a serious investigation of his actions. As I said before, the "legal methodology" that applies in Israel does not demand that Shendar or the police determine at the beginning of the investigation whether it is worth conducting. Their job is to determine at the end of the investigation whether there is sufficient evidence to warrant indicting the suspect. "Justice is blind," the old motto goes. It does not only mean that justice does not distinguish between the powerful and the weak, or the rich and the poor, but that it also does not determine in advance who should be put on trial and who should not. On the other hand, blind justice costs much more than pre-determined "justice."