From now on, the police will recommend that the state prosecution issue indictments only if the investigation yields 'evidentiary material leading necessarily to a single, unequivocal version - and none other.'
On Thursday, something historic occurred in Israel. A new doctrine was defined: From now on, the police will recommend that the state prosecution issue indictments only if the investigation yields "evidentiary material leading necessarily to a single, unequivocal version - and none other."
Cain, O. J. Simpson, former Shas leader Aryeh Deri and millions of other suspects and accused people, who presented alternative versions, can only regret that this doctrine came too late for them. From now on, it will no longer be necessary to wait for a trial and see whether the defense succeeds in creating a reasonable doubt. It will be enough for a police officer, a head of the Investigations Division, to determine that the suspect's ostensible guilt passes the high thresholds of "necessarily," "single and unequivocal" and "none other." Major General Yohanan Danino, an attorney and former police prosecutor, developed this innovation. He was actively involved in a few cases that were brought to trial during his quarter of a century in uniform, even though investigators did not promise with 100 percent certainty that each of these cases would end in a conviction. But these cases did not involve prime ministers Ariel Sharon and Ehud Olmert.
Even the most determined of Danino's predecessors were not entirely immune to the winds from above. Only rarely did they dive headfirst into an empty pool. In the case of Sharon / Ben-Gal / Gusinsky, Moshe Mizrahi and his unit of police investigators realized that attorney general Elyakim Rubinstein and state prosecutor Edna Arbel were not eager to indict Sharon. In the investigation summary, it was noted that "a circumstantial evidentiary infrastructure was found against Sharon." This is a flexible and useful phrase. If Rubinstein and Arbel wanted to issue an indictment, they could emphasize the "evidentiary,'' and if they did not, they could emphasize the "circumstantial" and say it was insufficient. Ultimately, they did not wish to indict.
Naturally investigators conduct mock trials to check the strength of the case, though according to the Danino doctrine, failure is almost always to be expected. With this type of analysis of alternatives, Israel would not have embarked on the Entebbe operation. But in his eagerness to assist Olmert, Danino forged a new doctrine. If the case is closed, it will not be for lack of fault because the evidentiary infrastructure does indeed exist. But this infrastructure was not "sufficient" - a reservation that will disappear beneath sympathetic headlines.
Adopting the Danino doctrine would greatly reduce the load on the courts. It would reduce the number of indictments, and the responsibility would pass from the judges to the investigators. It would be inconceivable for a judge to acquit someone Danino had recommended for indictment because this would raise doubts.
Danino's spiritual brother and ideological partner is Attorney General Menahem Mazuz. Among the explanations for closing the Sharon file in the Greek island case, Mazuz said the attorney general should bear the burden of decision, whatever the decision might be, rather than pass it along to the court to decide. But Mazuz, like Danino, is not consistent. In the indecent behavior case of Haim Ramon a year ago, following an investigation led by Danino, Mazuz explained that in light of the two conflicting versions, "there is no alternative but to issue an indictment and bring the matter to the court to decide."
The Danino doctrine is scandalous for taking into consideration the status of the suspect, Olmert. It is not a police major general's role to take into consideration the potential shock to the political system from a prime minister's resignation. The legislature provided for this: Unlike the ministers whose scalps already hang on Danino's belt - Ramon and former finance minister Avraham Hirchson - whose indictments triggered an immediate resignation, the law enables a prime minister to remain in office until being convicted of a crime of turpitude.
There are few cases in which investigators can bet on a sure conviction without having obtained a confession, and those who wager also make mistakes sometimes. Does Olmert's acquittal in the Likud invoices case in 1997, which stunned state prosecutors Dorit Beinisch and Edna Arbel, demonstrate there was no reason to sit him on the defendant's bench in the first place? Beinisch and Arbel are now at the last stop of the Bank Leumi case, which Accountant General Yaron Zelekha is determined to petition if the designated state prosecutor, Moshe Lador, accepts the police recommendation. This will be a good opportunity for the court to express its view on the Danino doctrine and the Olmert test.
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