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The quality of judgment By Tomer Zarchin Tags: Israel News At the end of this month, District Court Judge Saviona Rotlevy will finish reading out her last judgment, thus concluding 31 years on the bench, and will call it a judicial day. "I have lost something of the joy of doing," she said this week, before placing her robe in storage. Accordingly, she decided to leave - three years before retirement age for judges. "The courtroom ha s become an arena of combat," she explains. "Something has gone wrong in the attitude of the lawyers and even of the audience in the courtroom." She is referring to disrespect for judges, the infiltration of street language into hearings, the ringing of cellular phones while court is in session, the sending of text messages. "Female lawyers show up in T-shirts or in skimpy blouses and jeans - anything goes, as long as they wear a robe on top." Spectators, too, are taking unprecedented liberties. "The Israeli street has entered the courtroom, a place where there used to be a different atmosphere, the legacy of the British tradition," Rotlevy observes. "For decades I came to work joyfully, eager to enter the courtroom, but lately that joy has been diminished. It's not pleasant to have to be a kindergarten teacher." Advertisement She attributes some of the blame for this deterioration to Justice Minister Daniel Friedmann: "When the courts are delegitimized and the judicial system is attacked systematically, then everyone feels he can legitimately assail the court, and that is not pleasant." According to defense attorney Zion Amir, one of former president Moshe Katsav's lawyers, who has appeared before Rotlevy in court, "She had a proper judgmental temperament. She projected seriousness and dictated respect in the courtroom. Everything was clean - a clean look and clean language - and the procedure was dignified. She conducted hearings with quiet leadership, nothing brutal. I never saw anything wild, any outbursts of passion, in her courtroom." Rotlevy, 67, has handed down thousands of rulings during her career, some of them precedent-setting. For 15 years she was a judge in Juvenile Court and is considered a proponent of children's rights. During such cases, she "discovered," among others, Roni and David Harari, who at the time were juvenile delinquents, but later became the bosses of the underworld "Ramat Amidar gang." Has anything changed regarding juvenile delinquency over the years? Rotlevy: "Things are far more intense now. It used to be that children were brought into court for peddling or vagrancy, minor property infractions and minor sexual offenses. These days property crimes are a very central element in offenses perpetrated by minors, and acts of violence are becoming far more acute, in terms of both seriousness and number." Why is this happening? "I see the sources of the phenomenon in the aftermath of the Six-Day War. This is the second and third generation that grew up in a regime different from the one in which I was raised. This generation sees considerable violence against Arabs and a great deal of violence on television. You cannot tell a child not to be violent in school if he experiences violence everywhere else. Just yesterday I saw on television youths coming out of a synagogue in Hebron dressed in pure white and attacking Palestinians who were picking olives. I have no doubt that children are affected by this. What went on there for years has had salient implications for the Israeli society." For the past 15 years Rotlevy has been a Tel Aviv District Court judge, serving among other things as head of a panel on serious crime (where she was considered to be very strict, particularly in regard to sex crimes). According to a senior prosecution attorney, who is well-acquainted with Rotlevy's work: "She was not the darling of the defense counsels. If judges can be divided into those who convict everyone and those who convict almost everyone, she is one of those of whom it can be said, as a generalization, that she convicted everyone and also imposed harsh sentences. That is probably a worldview that she formed at Juvenile Court." Zion Amir agrees: "She was a strict judge, and where she thought harsh things had been done, she came down hard." Rotlevy heard appeals against decisions by psychiatric committees on coerced hospitalization, and she considers her judgments, which protected the rights of psychiatric patients, an achievement. Hearing appeals against decisions by Family Affairs Courts, she discerned that "there are hardly any appeals over custody, visitation or education: Most of the appeals deal with money, alimony and inheritances. To me, that says that children are very much a matter of rhetoric: Everyone says that the children are the most precious thing, but it looks as though what bothers people most is money, not children." The pinnacle of Rotlevy's judicial activity is a committee she chaired, which examined children's basic legal rights and their implementation in legislation. As a result of the committee's work, the law was amended to allow a more central place for children's rights in both criminal and civil proceedings. "The adult world finds it very difficult to accept children's rights," Rotlevy says. "Adults are afraid they will lose power and control. The adult world finds it convenient to have obedient children. The fear is that children's rights will infringe on adults' rights." One of the projects she spearheaded during the past year involved allowing children to take part in cases heard in the Family Affairs Court, mainly in regard to custody and visitation. In an experiment she led, children were granted the right to express their opinion directly on the issues under discussion - either privately, in the judge's chambers, or through the mediation of the auxiliary staff that operate in Family Affairs Courts. So far, only a few children have agreed to meet privately with judges to make their opinions known; most have requested that their message be transmitted through intermediaries. On the other hand, a few of the judges who took part in the experiment did not have the tools to deal directly with the children, while others said they were already overburdened. In addition, some lawyers objected to the procedure. However, Rotlevy notes, a study that is monitoring the experiment shows a gradual change in attitude. 'Murdering the soul' Saviona Rotlevy has brought nonconformist views to the courtroom. In several judgments she found herself in the minority, though her opinion was later accepted on appeal to the Supreme Court. A case in point concerned the lesbian couple Tal and Avital Yarom-Hakak, who each asked to adopt the other's child. In a minority opinion handed down in May 2001, Rotlevy sketched the outline of a new sort of family when declaring that the couple did not need the court's approval to maintain a nuclear family without a father. Her opinion - that issuing an adoption order would be to the children's benefit - was accepted by the Supreme Court. Another well-known case in which Rotlevy was in the minority, dealt with the biological mother of a child, who had put the child up for adoption and then changed her mind. Rotlevy argued that the good of the child required that he be left with his adoptive parents. In April 2005 the Supreme Court accepted her opinion again. In 2004, Judge Rotlevy imposed a 24-year jail term on the pedophile Itai Leibovich, who was convicted of a series of sexual offenses, including the rape of 9- and 11-year-old girls. Usually in such instances, judges impose concurrent (rather than consecutive) terms of punishment on a confessed offender, as in murder cases. Rotlevy wrote in her verdict, however, that a more rigorous policy was required to deal with sex offenders. She noted this week that she viewed the harsh sentence imposed in that particular case as a warning to potential offenders. Because in sex offenses each victim is a world unto himself and every such act is tantamount to "murdering the soul," she thought it right to throw the book at Leibovich. Leibovich appealed, but the president of the Supreme Court, Justice Dorit Beinisch, endorsed Rotlevy's approach, according to which consecutive sentences can also be imposed in cases of serious sex crimes. In the end, Beinisch decided to reduce the prison term to 22 years (which is still more than the maximum punishment prescribed in the law for raping a child), because Leibovich had gone to the police and confessed. Rotlevy defends her approach: "I think that if punishment is to be severe, there must be no disparity between the rhetorical and the concrete level." But the Supreme Court thought differently. "If they had reduced the prison term substantially, by more than two years, I would have said that my position was very different from that of the Supreme Court. Reducing a sentence by two years sends the wrong message to the public." What message? "That it is always worth appealing, no matter what." How far apart are judges and judicial panels when it comes to imposing punishment? "There can be large disparities, which upsets me very much. Because the judgments are highly diversified and the public cannot understand what the punishment is for certain offenses - there is no guideline. Even when legislators assert their opinion by stipulating a minimum punishment, it is not reflected in the judgment." In the mid-1990s Rotlevy was a member of a committee, headed by Supreme Court Justice Eliezer Goldberg, that examined the integration of judicial considerations in the drafting of verdicts. In one of the committee's sessions, she presented to her colleagues - senior figures in the local world of criminal law - the case of an armed robbery that ended with a conviction. She then asked the committee members to "sentence" the thief. The punishments differed and the participants were unable to explain their point of departure in passing sentence. The "sentences" ranged from zero to the maximum permitted by law. "There was a tremendous difference in the sentences, which made it clear to those who were in the profession for so many years that they had never thought about the sentencing process. Obviously, a judge is not a computer, but there must be transparent parameters, known in advance, for the court to take under advisement. These days, before sentence is passed, the prosecutor cites 20 severe judgments [as precedents] and the defense counters with 20 lenient ones. It is a very complex business. As the late justice Haim Cohn said, judgment must not come from the gut." In hearing appeals of decisions by Magistrate's Courts, was it your feeling that rulings came from the gut? "If I found it necessary to intervene - because the judgment was unreasonable and not sufficiently explained by the judge - I could assume that it came from a place of a lack of reason, from prejudice, or that the judge was just not aware [enough]." Rotlevy does not like what she sees as the paternalistic approach adopted by prosecution attorneys, who try to protect women who have filed complaints of sex offenses by sparing them the need to testify. "Very often they also reach a plea bargain because of a desire to protect the victim, when the victim actually wants to go ahead with the case." What is the prosecution afraid of? "Of acquittals. My view is that if the woman who was victimized wants to testify, she should be allowed to, even if the prosecution is concerned that this will ultimately lead to the defendant's acquittal. There will be a few acquittals, which is not so terrible. If the women want to testify, let them. Maybe the court will see the evidence differently." Are you a proponent of plea bargains? "I never pushed for a plea bargain or took part in one - that is not my role. It is the lesser of the evils, because of the court's tremendous caseload." Rotlevy has encountered plea bargains that were "not good," in which there was a large disparity between the facts described in a serious indictment, and their translation into light offenses that a defendant admitted to as part of a deal. "This is the result of pressure on the part of the defense counsel, whose impact on the prosecution is greater than other pressures, due to differences in the balance of forces between the prosecution and the defense," Rotlevy explains. "There are lawyers whose approach to the prosecution generates a certain reverence or perhaps respect, perhaps apprehension, and those lawyers manage to obtain better terms than others." How many defense lawyers are in that category? "You can count them on one hand." Are judges also in awe of them? "I very much hope they are not." So the defendant's economic means are critical? "In principle, that is so, but not only to pay lawyers. Obtaining an expert opinion is also very costly. On the other hand, on many occasions the Public Defenders Office has made the best possible defense available." Rotlevy did not want to comment on the case of former president Moshe Katsav, as she is not familiar with the material. She is willing to say, however, that it is precisely in the realm of sex offenses that the State Prosecutor's Office should take into consideration the victim's desire to have her complaint clarified in a court of law. The tools the court possesses to examine the evidence in the interrogation of witnesses are different from those of the state prosecution, and therefore the complainants should be allowed to testify, even if this results in the defendant's acquittal. "If the prosecutor knows the witness is lying, it is certainly an unnecessary risk for him to put her on the stand. But if there is no such evidence, only the concern that the complainant will not stand up under cross-examination or will crack, she should be allowed to testify. There is only a thin wall between acquittal by reason of doubt and conviction." If Katsav is indicted, his lawyers intend to claim that it is impossible to conduct a fair trial due to hostile media and public outrage. Does that argument stand a chance of being accepted? "It is clear to me that that argument will be made. But there is just one problem: Those who make it must do so in good faith. So I think that the counter-argument that will be put forward [is] that the atmosphere was caused precisely by the suspect's behavior, by his retreat from the plea bargain, by continuing the proceedings ..." Do you think the judges will be able to conduct a fair and just trial? "Yes. They will have to pass judgment on the basis of the evidence that will be brought before them." On upholding ethics Saviona Rotlevy grew up in Ramat Gan. Her father, who was born in Austria, was a policeman during the British Mandate period; her mother was a homemaker. She attended Yahalom School, then called Ohel Shem. She still meets every few weeks with a group of eight girlfriends from Yahalom. She did her army service in the headquarters of the Israel Defense Forces' Spokesman's Unit in Tel Aviv, then studied law and criminology at the Hebrew University of Jerusalem. She clerked in the Jerusalem Prosecutor's Office and in the law firm of M. Seligman & Co., along with another young lawyer, Eli Zohar, now the firm's senior partner and one of Prime Minister Ehud Olmert's lawyers. Rotlevy's marriage to attorney Ami Osnat ended in divorce; she then married another attorney, David Rotlevy, who died in 1999 following a lengthy illness. In 2007 her partner, Benayahu Levin, died; she nursed him until the last. Rotlevy has two children (Dan, who is in high-tech, and Uri, who has a Ph.D. in philosophy), one grandson and a granddaughter on the way. And no, she is not sorry that her children did not choose the legal profession. "They enriched my life," she says. "I am constantly learning from them." Among her girlfriends are the poet Michal Snunit; Prof. Mira Zakai, who teaches voice at the Rubin Academy of Music in Tel Aviv; and two judges, Edna Arbel (a Supreme Court justice) and Michal Rubinstein (District Court). Rotlevy knows that she has a reputation for being supercilious, even uppity. It was once said that she entered a courtroom wearing a hat, but she says she wears a hat as protection from the sun, and never wore one in court. A judge must distance herself, she explains, but not be supercilious. "It is very important for a judge to maintain a distance and to place limitations on himself, to ensure he does not become too buddy-buddy. For my taste, some judges spend too much time with people from the big-capital and government realms. It doesn't look good. A judge should visit prisons, psychiatric hospitals, all kinds of places to which he sends people, in order to know where he is sending them. But a judge should not visit places of business if he is engaged in financial matters. There are judges whom I would expect not to be involved in the big-capital-government nexus." This sort of fraternizing, she continues, goes on at social gatherings, and on public and economic occasions. "It is not due to the fact that judges want benefits. Maybe it is because the society has become more class-structured. It's part of a culture that has developed in recent years. It might be the product of the place from which people are appointed judges, I don't know ... There has to be a separation." Should judges forsake previous friendships? "No. If someone was your good friend before you were appointed a judge, you will not give up that friendship. That is not what I am talking about. You have to limit yourself more, you can find out who will attend a certain event. There was a case in which I was invited to a surprise party held for someone in the home of a person who had been convicted shortly before the event. I did not go and people were very angry with me." Did other District Court judges attend? She nods. "This is a salient example of a case in which a judge has to uphold the rules of ethics. Why should I attend a party in the home of a person who has just been convicted?" Rotlevy was a member of the panel of judges that sentenced Yigal Amir to life imprisonment in 1996for assassinating prime minister Yitzhak Rabin. For a time, Amir attended a yeshiva in the "old north" of Tel Aviv, a few buildings away from Rotlevy's home. "I found it very strange," she recalls. "I always saw parents coming to pick up their children from the yeshiva and heard the children praying. But there is nothing surprising about it: A person can emerge with that kind of evil even if he was educated in a good place." In the wake of the lengthy judgment in Amir's case, written by judge Edmond Levy (now a Supreme Court justice), Rotlevy made do with brief remarks. She quoted from Camus' "The Rebel," noting that his words reflected what she thought about Amir's act: "If man wants to become God, he arrogates to himself the power of life or death over others. Manufacturer of corpses and of sub-men, he is a sub-human himself and not God, but the ignoble servant of death" [translation by Anthony Bower; Vintage Books, 1956]. The third judge on the panel, Oded Mudrik, added some thoughts of his own to the judgment. "I thought that if the outcome is the same outcome, with everyone agreeing on the sentence, there should be a different verdict, all the more so in the case of the assassination of a prime minister," Rotlevy said this week. "I had problems with the content that both of them introduced. [Haim Nahman] Bialik, Yehuda Halevy - a universe of content that is not my universe of content. One that is not universal. Because murder has nothing to do with whether you are a Jew or not." But people took that as your unwillingness to criticize the assassin. "In retrospect, I regret that what I wrote in the judgment was construed as my unwillingness to take a stand on the act itself. I thought that through Camus I had expressed myself in the bluntest way." Why did the judges decide to ask for a psychiatric opinion about Amir? Was it perhaps an attempt to find a medical reason for the assassination? "I don't know whether I would support doing that today. It's strange when I think about it in retrospect. In connection with certain offenses, such as parents who abuse their children, it is hard for you to accept that a normal person would do such things, and spontaneously you ask yourself if he is responsible for his actions. An opinion is requested and many times it is not a psychological problem. In this case it was not a psychological problem, but the result of ideological education." Were you upset that he married in prison and was able to have a child? "I was very upset. Unfortunately, I still see him smiling. His smile in court and his sister's smile. Those are images I cannot forget." Judge in distress In November 2001, Rotlevy presided over the case of Ze'ev Bashan, an Israeli businessman who lived in the United States and was convicted of defrauding banks and businesses of $20 million. During the trial, the prosecution requested that Rotlevy be disqualified. One such request followed a report by someone clerking for her, saying she had formed her opinion of the defendant before passing judgment on him. The request was denied, as was an appeal to the president of the Supreme Court at the time, Aharon Barak. "It is plain that I did not form an opinion - it was impossible to form an opinion," Rotlevy recalls. "That is one of the cases that dramatize the loneliness of the judge, when the media are critical and the PR people attack the court. I did not have a publicity agent or a spokesperson or a servile journalist. It was a great affront. It brought home to me the loneliness of the judge, because there is no one element that helps a judge overcome situations of distress - where a judge could find encouragement, an attentive ear, where one could talk freely about affronts and distress. It was very difficult, I felt completely alone, apart from a few friends in the system and the family." Does the media influence judges? "I cannot say that there is no influence. One has to be aware of this and have no pangs of conscience. The public mood can have an effect even if a judge is not conscious of it. A judge is part of his surroundings. The media are not hidden from you. I say, in fact, that maybe you should read [press reports] and it will make you think. There is nothing wrong with that." Tel Aviv District Court is the largest in Israel, with some 50 judges and court registrars. It draws the heavy, well-publicized criminal and civil-economic cases. In recent years, judges there have increasingly complained of an intolerable caseload, which causes trials to drag on for years, or, in grave instances, leads to the release of defendants in detention, and whose trials are delayed. A recent high-profile case involved the actor Hanan Goldblatt, who was charged with (and later convicted of) committing rape and indecent acts. Rotlevy decided to postpone the start of the trial for a year. In the end, the case was transferred to a different panel of judges. "I thought - even if the media did not like it - that the case should not get priority, because there were other cases that ought to be heard first," she says. Rotlevy is outraged when asked to explain the anomaly: On the one hand, the judges complain about an unbearable overload, and on the other, the largest district court in the country empties out almost completely by 2 P.M. "There are many judges who remain in their chambers until late at night," she explains, "and even if they leave earlier, they work at home, day and night, weekends and holidays. The physical conditions in the court are so horrendous that all you want to do is escape." How bad is the overload? "It is intolerable. The number of cases in the District Court is usually not pertinent, because there are huge complex cases that one deals with for months on end. The legislators also impose new tasks on the judges without budgeting new positions. There are more and more directives about dates, but with all good will a judge is torn between the different needs. A judge needs time to organize his thoughts, to weigh things. We are the only country in the West in which a judge hears cases five days a week. Abroad, judges usually have spacious chambers, a large staff of aides and more auxiliary clerks." How does the court system function in organizational terms? Were you ever asked what bothers you? "Never. For more than 30 years, until last year, no one asked what bothered me, what I was satisfied with, what needed improvement in the physical realm or in social terms, or how we could better serve the citizenry - questions that every organization ponders. Until this year we felt like machines that produce judgments. It was only in the past year that the president of the Supreme Court, Dorit Beinisch, brought in organizational consultants to improve the feeling of the judges and improve the service to the citizens, and discussions were held at different levels. I truly hope things will change, that judges will feel they are part of a community and an organization, not isolated individuals." Since formally retiring a few weeks ago, Rotlevy has been taking private dancing lessons, attending yoga classes and planning a 10-day trip to an ashram in India. "I am completing a chapter," she says, "but I know that I will continue to be active in the sphere of children's rights. I feel I still have a great deal to do."W Bookmark to del.icio.us   Israelis targeted abroad Gunman opens fire on Israelis working at shopping mall in Denmark. Iran silences dissent Newspaper forcibly shut down after article blaming Hamas for Gaza violence.

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