They Won't Charge Each Other

Missteps by prosecutors must be subject to competent and reliable outside oversight.

Deputy Attorney General Rachel Gottlieb has announced that she has not found a basis for a criminal investigation into the prosecutors handling the criminal case against former Prime Minister Ehud Olmert in the Rishon Tours double-billing affair. Olmert's lawyers said the prosecution prepared a witness to testify using questions and answers that put a reworked and polished version of events in the witness' mouth. This was to avoid contradictions in her testimony.

The complaint prompts amazement because, at least in civil cases, it is customary for lawyers to prepare witnesses through explicit instructions and using an array of documents. Nonetheless, in criminal cases such as the Rishon Tours matter, there is still an expectation that prosecution witnesses will testify spontaneously without words being put in their mouths. They are, after all, testifying for the state prosecution, which should be interested in getting at the truth.

From the deputy attorney general's decision, it is apparent that giving a detailed document with comments and instructions to a prosecution witness contradicts the rules of the game in criminal law. This is in contrast to a document that simply contains quotes from the witness' statement to the police to refresh his memory. Even though the Rishon Tours witness was given a document that guided her on what to say, the request for an investigation into the prosecution team was rejected following the prosecution's explanation that the witness was given the document by mistake and in good faith.

Gottlieb's decision negated the prosecution team's stance. It had sought to justify providing the document based on the volume of material in the case. In fact, turning a witness into a kind of parrot that spouts the prosecution's testimony by heart could undermine the foundations of criminal law, with implications for the fate of individuals.

It can be assumed that no one, including Olmert's lawyer, seriously expected the deputy attorney general to order a criminal investigation into her colleagues. The very fact that a senior prosecution official would be entrusted with a matter in which she could find herself accusing her colleagues creates, innocently enough, a rigged process with the results a foregone conclusion.

Disturbing about the decision is not that a criminal investigation was not opened, but rather that Gottlieb didn't even recommend disciplinary proceedings against the prosecutors - despite their significant error of judgment that could improperly tip the balance of evidence on which a verdict is reached.

It is clear that the prosecution cannot investigate itself. For example, State Comptroller Micha Lindenstrauss concluded that there was "real negligence" in the forcible-kissing case against former minister Haim Ramon because two prosecutors failed to provide timely wiretapping results to Ramon's lawyers. In that case, Deputy Attorney General Malkiel Balas, one of the Justice Ministry's best people, decided not to take disciplinary action against the prosecutors.

The people at the prosecutor's office work in close quarters; sometimes a number of prosecutors share a single office. They can't be required to launch criminal or disciplinary proceedings against their colleagues. The attorney general, who heads the state prosecution assisted by a large staff, would have trouble ordering an action against any of them, if that were necessary.

Missteps by prosecutors, who wield a powerful tool in their authority to file an indictment, with its implications for a person's reputation and freedom, must be subject to competent and reliable outside oversight. Their conduct must be handled the same way the police's conduct is investigated by an independent Justice Ministry department or judges' conduct is subject by law to an investigation by an ombudsman's office independent of the judicial system.

Only outside supervision of the prosecution, established by Knesset legislation, similar to the law providing for a judicial ombudsman, can provide the necessary public stature. The ombudsman's office should be headed by a neutral figure - not someone from the prosecutor's office. It would be better if it were someone like retired Supreme Court Justice Eliahu Mazza, who would give the institution the prestige without which there is no point in creating it.