Former prosecutors on the bench make for scarce acquittals - Haaretz

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Wed., October 31, 2007 Cheshvan 19, 5768

Israel Time: 02:48 (EST+7)

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Former prosecutors on the bench make for scarce acquittals

By Yuval Yoaz

The commotion during the judicial appointments committee meeting last Thursday - over the Supreme Court candidacy of a prominent Haifa criminal lawyer - illustrates well the problem with the professional background of candidates for the bench.

Concerning that same lawyer, Haifa district attorney Lily Borsishansky gave a written opinion that he has "improper ties" to criminals, and therefore should not be made a judge. The discussion quickly deteriorated into another clash between Supreme Court President Dorit Beinisch, who favored postponing the appointment to look into the allegations, and Justice Minister Daniel Friedmann, who saw no need for that.

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This dispute brought to the fore once again the tremendous difficulty in appointing criminal defense lawyers to the bench - private-practice lawyers who specialize in representing individuals charged with crimes - compared to the ease with which lawyers become judges after careers with the state, police and military prosecution.

"When most appointees come from prosecutorial ranks, the judges continue to think like prosecutors," said criminal lawyer Sasi Gez. "When you finally have some defender they want to appoint to the bench, then they say he consorts with criminals. There is no defender who doesn't have ties to criminals. Who else would he have contact with?"

Statistics indeed prove the tendency of Israel's judicial system to appoint judges who used to be prosecutors, and to appoint few former criminal defense lawyers. Haaretz has found that a fifth of the currently serving judges had previously worked at the State Prosecutor's Office. In all, more than a quarter of Israeli judges previously worked in some prosecutorial capacity.

Even if we exclude judges who worked in the state prosecution's civil departments and not as criminal prosecutors, there is still a tendency to appoint judges with experience - and maybe also a professional perspective - that views the world through a prosecutor's eyes.

Many judges did work for private law firms - the courts administration has no data on whether their work focused on criminal or civil cases, but the number of criminal defenders appointed to the bench is negligible. But for comparison's sake, the number of judges who hail from the public defender's office is four - 0.71 percent of all judges. A handful of other lawyers, about 10, who worked in cooperation with the public defender's office over the years also became judges.

The public defender's office is familiar with these figures.

"Anyone who served as a defender is more aware of the weaknesses of court proceedings in uncovering the truth and the problematic nature of the investigative process," said Tel Aviv and central district public defender Yona Hayer. "It would therefore be better if more defenders were appointed judges. Naturally, a judge who grew up in the prosecution system and whose professional experiences coalesced from the point of view of a lawyer, brings along an identification, sometimes excessive, with the system's goals. Only actual defense experience can bring about an openness, an understanding, and more liberal and tolerant viewpoint."

Jacob Weinroth, who represents "white collar" defendants, said "the fact that most appointees come from the prosecution is calamitous, because a person is a snapshot of his life's circumstances. They don't teach the philosophy of defense at university - what is the defender's status and what does he do - and so he is conceived to be someone who wrecks justice. Only experience can make up for this lack in legal education. When experience is also lacking, there is a one-dimensional view of reality. A person who comes to the bench from the prosecution ought to spend a year in the public defender's office or with a private defense lawyer."

There are frustrated lawyers milling about the courts who see state prosecutors and judges as one impenetrable unit. The data indicating that so many of the judges are appointed from the ranks of prosecutors, they say, fits well with the minimal acquittal rate for criminal trials in Israel. That rate decreased over recent decades to 0.2 percent - in other words, only two out of every thousand criminal trials ends in acquittal.

"Common sense says that people whose world view was shaped in a certain place will have a harder time being neutral," a veteran jurist said.

Added Attorney Gez, "every judge should ask himself how come there are so few acquittals."

According to one senior district court judge, there is no policy of appointing prosecutors as judges, but merely the constraints of reality. It's hard to get good private-sector lawyers to give up lucrative practices to become judges, so that leaves the system with those for whom the bench represents a promotion.

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