AG Versus the Prosecution

The attorney general proved to be a legal innovator in the way he reached his decision not to indict Prime Minister Ariel Sharon or his son Gilad.

Attorney General Menachem Mazuz has decided to close the case against Prime Minister Ariel Sharon and his son Gilad. That decision is within his authority and his rights. He did so because, in his assessment, a "sufficient infrastructure of evidence" for an indictment did not exist. He said he reached this conclusion using the test of whether there was "a reasonable chance to convict," and from a belief that "there is only one law for both the prime minister and the ordinary man."

The attorney general proved to be a legal innovator in the way he reached his decision not to indict. The innovation lay not in the fact that his conclusion differed from that of a senior team headed by former state prosecutor Edna Arbel, which recommended indicting the prime minister. That has happened before.

The previous attorney general, Elyakim Rubinstein, decided not to indict former prime minister Benjamin Netanyahu in the Amedi affair, despite Arbel's contrary opinion, but this did not create any "earthquakes" of the sort that are being felt now.

Mazuz's legal innovation lay in the fact that he appointed a new team to evaluate the evidence - something that has never before occurred in the prosecution. From that moment on it should have been clear that something had happened that would affect the way decisions are made about indicting a prime minister or any other senior official in the future.

The minute the conclusions of a skilled and experienced team are not accepted, a new team will be appointed in its stead. The mythological Buzaglo, who can be indicted by any police prosecutor, can only sigh as he reads the attorney general's declaration that "all citizens are equal before the law."

The attorney general's lack of faith in the prosecution was not just expressed in his decision to set up his own team. It also emerged from many pages of his detailed and reasoned decision regarding Sharon. This decision contained a legal-factual analysis and an interpretation of the facts about which the last legal word has not yet been spoken.

Yet it seems that never before has a document written and signed by the head of Israel's prosecution, the attorney general, portrayed the skilled team subordinate to him as an empty vessel.

The attorney general's remarks about "evidentiary material that suffered from weakness" with regard to both the factual and the psychological elements of the crime, and that it "did not add up to a structure capable of standing on its own," essentially assigned a grade of "unsatisfactory" to the prosecutors whose job it was to assess what jurists call "the sufficiency of the evidence."

The attorney general treated the prosecution's opinion as an "allegation" that Sharon had accepted a bribe. This allegation, in his opinion, "is based on a web of generalizations and indirect and circumstantial evidence." This finding is a direct slap at work in which great effort was invested.

Not only is such a style not the norm among civil servants who are supposed to work together in enforcing the rule of law, it is also not to be found in criticisms by external bodies such as the State Comptroller's Office or the courts, which are always careful of an agency's dignity even when they cancel its decisions.

High Court of Justice rulings that have overturned attorney generals' directives or their decisions not to indict someone due to lack of "public interest" have never leveled such grave accusations. The standard phrase used by lawyers, "my learned colleague," which has already eroded over time, has now suffered a mortal blow from the attorney general, who is supposed to set an example for young attorneys.

The attorney general's temper had not cooled when he met reporters and launched an unprecedently vicious attack on the prosecutors who were part of Arbel's team. He described the head of the team as having "influenced" the others and of having set herself a "target" - something that to jurists would constitute an egregious lack of professional integrity. Hurling such accusations is like accusing the attorney general of having approached the Sharon case with the "target" of not indicting him - something that is equally inconceivable.

The attorney general announced yesterday, a day late, that he would publish the state prosecutor's opinion and the draft indictment that she had prepared. This will make it possible to evaluate the nature of the evidence and the reasonability of the prosecution's recommendation and the attorney general's decision.

But regardless of the reasonableness of the attorney general's decision not to indict, his style, and the accusation that he drafted against senior prosecutors who as civil servants are barred from responding publicly, are clearly unreasonable. Mazuz must now demonstrate leadership by putting his house in order, without defining a "target," and by finding a way to close the case of "the attorney general versus the prosecution."