Civil Fights: Israel's 'apolitical' attorney-general

Branding someone a rapist as a 'lever for a plea bargain' on lesser offenses is a gross abuse of power.

By EVELYN GORDON
mazuz press 298.88 (photo credit: Ariel Jerozolimski [file])
mazuz press 298.88
(photo credit: Ariel Jerozolimski [file])
It is ironic that President Moshe Katsav's plea bargain was signed a mere month after Menachem Mazuz, backed by most of the legal establishment, successfully thwarted a proposal to change the process of selecting the attorney-general. The proposal's opponents argued that only an apolitical process, such as that which produced Mazuz, could guarantee a qualified candidate rather than a political hack. Yet no political hack could have disgraced the justice system more thoroughly than Mazuz did with this plea bargain. There are only two possible ways to interpret it: Either the attorney-general spent a year unjustly besmirching the president as a rapist, or he is allowing a presidential rapist to walk free. Mazuz's press conference last Thursday permits either conclusion. His astounding assertion, for instance, that "there were grounds for an indictment on rape charges" begs the second interpretation: If so, how can he justify a deal under which Katsav confesses merely to hugging one woman and kissing another, and will not even do community service, much less jail time? KATSAV HAS claimed throughout that he never had sex with any of the complainants, and that his hugs and kisses expressed platonic affection rather than sexual interest. Not only does nothing in the plea bargain refute this claim (for instance, he will not confess to sleeping with either woman), but the punishment - a suspended sentence plus compensation to both complainants - is unusually light for the relevant offenses (indecent assault and sexual harassment), thereby supporting his contention that he did nothing seriously wrong. He can even plausibly claim that he confessed to crimes of which he considers himself innocent solely to spare himself and his family the hell of a trial, which would devour years of his life even if he were ultimately acquitted. Thus for all Mazuz's insistence that Katsav's confession to these charges is a significant prosecutorial achievement, the president is essentially getting off scot-free - an unconscionable result if there were indeed grounds for rape charges. MAZUZ THEN added insult to injury by claiming that he sought, inter alia, to spare Israel the "image price" entailed in a trial that would "garner media headlines worldwide." Since Katsav, thanks to Mazuz, has already been branded a serial rapist in the world press, that "image price" has already been paid. But now, in addition, Israel is being portrayed as a country that lets high-ranking rapists walk for the sake of protecting its image. No trial could be half so damaging. The alternative interpretation stems from an equally astounding Mazuz statement: that including rape in the draft indictment was "the lever for reaching the plea bargain." Since serious evidence of rape is not usually bargained away for a confession to lesser crimes, that implies Mazuz never had such evidence, and merely threatened rape charges to blackmail Katsav. Even worse, it implies that he never deemed any of the evidence, even on the lesser charges, sufficient for a trial: His only hope of securing a conviction, even on minor counts, was with a confession, and therefore he deliberately extorted one by threatening Katsav with rape charges. Otherwise, why make a deal at all? He could simply have gone to court with the lesser indictment - and probably secured a stiffer sentence, to boot. PUBLICLY branding someone a rapist merely as a "lever for reaching a plea bargain" on lesser offenses is a gross abuse of prosecutorial power even if the lesser charges were warranted. And the abuse is magnified sevenfold if they were not. We may never know which Mazuz is guilty of: whitewashing rape, or character assassination. What is incontrovertible, however, is the enormous damage he has done to Israel's legal system. Mazuz and his colleagues frequently complain that criticizing the justice system undermines public faith in it. But no criticism could possibly undermine the public's faith as badly as he did through this plea bargain. How could anyone trust a system that allows high-ranking rapists to walk free? Alternatively, how could anyone trust a system that tars a man as a rapist without sufficient evidence? In any normal country, such a debacle would result in Mazuz either resigning or being fired. But in Israel, precisely because our attorney-general is "independent and apolitical," that is impossible. ONLY THE cabinet can legally fire an attorney-general. And had it appointed Mazuz, it would do so, since it would be stained by his behavior. But Mazuz was selected by an "apolitical" panel whose three "independent" members (a chairman appointed by the Supreme Court president and two others chosen respectively by the Bar Association and the country's law school deans) outnumbered the two government representatives. Former justice minister Yosef Lapid actually tried twice to nominate someone else, but after one candidate withdrew due to committee intimations that it would reject him, a second was rejected and the panel "advised" Lapid not to try again, the minister gave in and accepted Mazuz. Thus the cabinet can truthfully eschew any responsibility for Mazuz's behavior. Moreover, in this particular case, it is far from clear that even the cabinet could fire Mazuz: While it can fire an attorney-general over policy differences, since he is also the government's legal adviser, the High Court of Justice might well rule that firing him over a prosecutorial decision contradicts the law's aim of ensuring prosecutorial independence. And even absent court intervention, prominent individuals would certainly assail the cabinet for "undermining" this independence. Why would any government risk either outcome in order to fire an attorney-general whose malfeasance in no way tarnishes its own standing, since it bears no responsibility for him? In short, not only did our "apolitical" selection mechanism produce an attorney-general who has damaged the legal system more profoundly than any political hack ever could, it also provides no way of ousting an incumbent in whom the entire public has now lost confidence. If proof were needed of the dangers of making a senior legal official accountable to nobody, last week amply provided it. One can only hope that the Knesset will draw the necessary conclusions.