Get a good lawyer - because you won't get a retrial

Of the hundreds of thousands of criminal proceedings that have been conducted in Israel, only 17 convictions have been granted retrials by the Supreme Court. Public Defender's Office statistics reveal a severe picture of the Israeli justice system, which appears reluctant to admit that innocent persons may have been convicted and are serving heavy sentences.

The Supreme Court has said it would rather have nine criminals erroneously acquitted and freed than one innocent person convicted and imprisoned. Even so, the justice system is still very conservative about agreeing to retrials. In 10 of the 17 cases in which the Supreme Court accepted petitions on the matter, the defendants were acquitted.

New trials were held in the other seven cases, in which the Supreme Court ordered a retrial despite the attorney general's opposition. Four of these ended in the convictions being upheld. The other three are still being heard. Two of them are being conducted by the Public Defender's Office.

Of the 10 cases that ended in acquittal, eight received the attorney general's support for a retrial, no trial was conducted and the defendants were automatically let off. In the other two, the prosecution decided to withdraw the charges. Attorney Efrat Fink, who is in charge of retrials at the Public Defender's Office, notes that the significance of these acquittals is that the power to decide the outcome of a retrial is effectively in the hands of the State Prosecutor's Office, rather than the court. The consent of the attorney general is tantamount to an acquittal, while his objection leads to a second conviction.

"The few instances in which the Supreme Court has accepted petitions for retrials can be explained by the desire to maintain a balance, to retain the public's confidence in the justice system, and the principle of the finality of the law, all of which are legitimate," says attorney Rachel Toren, who chairs the Criminal Forum of the Israel Bar Association. "I have a problem with the state's position, which totally opposes the idea of retrial petitions as a matter of course. The prosecution must operate as a trustee of the court, not as a party that is trying to win cases at any price."

Two significant changes in the law in the past decade have led to a dramatic rise in the justice system's involvement in retrials, even though the scope of such activity is still marginal compared to the number of trials and the rate of convictions in Israeli courts. For the sake of comparison, in England about 40 requests for retrial are filed annually; in relative terms, Israeli courts should receive four such requests a year.

One amendment to the law, from 1996, states that even "genuine suspicion of a miscarriage of justice" by the first court can justify a retrial. Until then petitions had to be based on new evidence discovered after a trial. This amendment, however, sparked a new legal debate, regarding the definition of miscarriage of justice. Does this refer to serious mismanagement of the trial, a court that is divided concerning the substantial findings, or doubts regarding the credibility of the witnesses?

The second change in the law, from 2001, granted the Public Defender's Office the discretion to represent convicted criminals before the Supreme Court in retrial petitions. Until then, it had represented petitioners only by court order. Since 2001 it has been receiving 20 to 50 requests a year from convicts.

Despite the above, throughout 2006 the Public Defender's Office did not petition the Supreme Court even once for a retrial, and all su ch petitions were filed under private representation. Even so, about 15 cases being examined by the Public Defender's Office are in an advanced stage of gathering material to petition for a retrial.

Sources at the Public Defender's Office say there are other obstacles in the process of examining cases that might call for a retrial. Petitions must be based on evidence, which means that the investigating authorities must keep the original exhibits from the trial so that DNA testing, for example, can be conducted. In Israel, the Public Defender's Office cannot even gain access to the objects used as evidence in the trial, despite the law requiring the police to keep exhibits in serious crime cases.