For Defendants at Top of Pyramid, Chance of Acquittal Soars

The overwhelming majority of prosecutions in Israel result in a guilty verdict - unless the accused are public figures, that is.

Amir Oren
Amir Oren
Amir Oren
Amir Oren

The learned jurist Dr. Felix Brych is a soccer referee. Last month, in front of tens of thousands in the stands and millions of viewers around the world, he allowed a goal that never was in a German Bundesliga match. He didn’t see that the ball had entered the goal from a gap in the side netting. The linesmen were of no help, and when he looked at the fraudulent goalscorer and the witnesses to his act – the players of both teams – their behavior gave him the impression that the goal was legal.

In the Jerusalem Magistrate’s Court last week, three judges acquitted MK Avigdor Lieberman of fraud and breach of trust. The overall sanctity of the judiciary, whose alternative is the law of the jungle, is more important than any particular ruling. One must respect the process – appealing, when necessary – even when it produces questionable results.

Everyone who's had a brush with law enforcement in recent years knows there are few oases in that barren wasteland. Here and there you’ll find outstanding, creative and brilliant people, in the midst of wide stretches of the mediocre. The systems meant to protect Israeli society from itself are no better than average. Incidentally, neither are the media.

Public figures deserve a fair and equitable trial, and that’s why the many acquittals are incredible. The overwhelming majority of criminal cases - very close to 100 percent - end in conviction, or in a plea bargain out of fear of conviction. But for those defendants at the top of the pyramid, the chance of acquittal soars. And this happens even though the attorney general and the prosecution, fearing the onslaught of criticism should they fail in such cases, invest enormous effort, preferring to drop cases if they don’t feel sure they can convict. And yet they still lose more often than in lower-profile cases.

This is an issue that deserves in-depth study, one that might disqualify the assumption that judges are not exempt from the atmosphere of intimidation and retaliation – after all, they know who sits on the Judicial Appointments Committee, and how the career paths of those who convicted politicians were blocked. But because both the judges and the judged sit among their people, they also know that while they are in the system and wearing the judicial robes, they speak differently than when they are among their friends or, even more so, as retirees.

A known example is that of former district court judge Shelly Timen, who vehemently attacked the system after he retired from the bench. In a similar context we have attorney Avia Alef - former head of the economic crimes division at the State Prosecutor's Office - who, after leaving that post, criticized Attorney General Yehuda Weinstein’s decision to drop the case against Lieberman that involved more serious charges.

The judicial panel that acquitted Lieberman issued a barb against former Deputy Foreign Minister Danny Ayalon, who had testified against Lieberman, for the “burst of good citizenship” that had gripped him after he had escaped the terror of his party boss. By this light, testimony by a former official who kept silent in real time but spoke out only afterward is suspect, but testimony by someone who is a declared admirer of the accused and who had himself been convicted by the head of the same panel - like former ambassador Ze’ev Ben Aryeh - is reliable.

Ayalon’s motive, even if it was revenge, is irrelevant. As experienced judges, one of whom was formerly a police prosecutor, the panel surely knows that revenge is an important lever for recruiting agents, including informers among criminal gangs, but there’s no point if the information is false. Revenge is a two-way street. That’s why there’s a witness protection program.

If Ben Aryeh received a leak from the Shin Bet security service in Belarus – and didn’t open an envelope bearing a secret message in the face of an explicit prohibition – he should have reported it to his superiors, so as not to disrupt an investigation. If Lieberman saw that Ben Aryeh had done something wrong, he was meant to report it. If a Shin Bet security guard sees the minister he’s guarding commit a violation, he is obligated to report it. A police brigadier general who did not report the major general above him was convicted of covering up a crime. If judges are not moved by the non-reporting of violations, something has gone wrong in the judiciary.

The Tax Authority’s “informer hotline” is fine for common defrauders. But a deputy minister who testifies against his former boss, whether at his own initiative or at the police’s behest, is exhibiting “bad citizenship.” That’s the clear message to anyone who has witnessed or will ever witness an alleged offense by a senior official – don’t tell, don’t testify, don’t get involved. He’ll get off, and you’ll end up the loser.

Former Israeli Foreign Minister Avigdor Lieberman arrives in the courtroom before hearing the verdict in his trial on Wednesday, Nov. 6, 2013, at the Magistrates Court in Jerusalem.Credit: AP
Referee Felix Brych. Mistakenly awarded a goal during a Bundesliga match.Credit: AP

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