Israeli Prosecutorial Overreach
by Stephen Lendman
According to former US Attorney General Robert Jackson:
"The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous…"
"While the prosecutor at his best is one of the most beneficent
forces in our society, when he acts from malice or other base motives, he is one of the worst."
Prosecutorial misconduct is all too common. Inadequate means of preventing and punishing wrongdoing persists. Or interest in doing so.
Trials are compromised. Wrongful convictions follow. Unfair sentences compound injustice. Disciplinary action is rare.
Prosecutors want convictions. Regardless of guilt or innocence. In Berger v. United States (April 1935), the US Supreme Court said:
"(W)hile he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."
So-called "foul blows" may include:
Charging suspects with more offenses than warranted. Making race-based jury selection decisions.
Withholding or delaying exculpatory evidence pleas. Deliberately mishandling, destroying or 'losing' evidence.
Inventing fake evidence. At times, making it unavailable to defense counsel. For alleged state security or other bogus reasons.
Allowing witnesses without credibility to testify. Pressuring or threatening defense witnesses not to testify.
Pressuring or threatening other witnesses to testify for the prosecution. Relying on fraudulent forensic experts.
During plea negotiations, overstating evidentiary strength. Making statements designed to arouse public indignation.
Making improper or misleading statements to the jury or court.
Failing to report misconduct by other prosecutors.
In America, violating the American Bar Association's Rule 3.8: Special Responsibilities of A Prosecutor. In criminal cases. Requiring prosecutors to:
"(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor's jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction."
Most often, these responsibilities are systematically violated. Unaccountably. Mocking American justice.
Israel is no different. A police state by any standard. Mistreating Arab citizens is rife. Rare investigations show what just societies don't tolerate.
Fundamental human and civil rights violations. Things may get worse. Israeli police want prosecutorial authority regained.
In cases involving assaulting one of their own. What was transferred from their jurisdiction to the State Prosecutor's office in 2010. Because of police misconduct.
They complain about "many cases of assaulting a police officer that are not getting professional handling that results in indictments."
They recommend "submit(ting) a detailed proposal for transferring these cases to the police prosecution units to upgrade their handling."
In 2010, Knesset members passed legislation transferring prosecutorial authority from police to state prosecutors for offenses resulting in sentences of three years or less.
Including for assaulting police officers. Police still can prosecute cases involving obstructing their work.
Separating prosecutorial authority was intended as temporary. Extended three times. Including cases involving so-called illegal assemblies and disturbances.
Based on police over-zealousness to prosecute. Israel's Justice Ministry has three years to reform police prosecutorial authority.
They initiate nearly 90% of indictments. Their power dates back to Britain's Mandate period.
Retained after Israel was established. Despite Knesset recommendations to end dual prosecutorial authority, very little changed.
Israel Democracy Institute's Guy Lurie and Mordechai Kremnitzer urge abolishing the Police Prosecution Department. Reform is long overdue, they say.
Let police investigate. State prosecutors alone should bring criminal charges when warranted, they recommend.
They called Israel's Attorney General's ruling to stop criminal proceedings against Daphni Leef and other social protest movement activists "a wake-up call."
The Attorney General "should (be) congratulate(d) for righting the wrong done by the Police Prosecution Department by prosecuting the case and proceeding with the indictment."
"In so doing, (he) fulfilled his role as head of the prosecution and his responsibility to maintain its integrity."
Israeli High Court Justice Daphne Barak-Erez recently ruled:
"The duty of fairness, which is binding on all prosecutorial authorities, like all administrative authorities, obligates the prosecutors to examine their position regarding any indictment they bring, and to withdraw an indictment when appropriate, whether partially or in full…"
"It is inappropriate to take the view that the prosecutorial authorities must adhere to the 'prosecutorial' position at any cost."
"The prosecutor represents the public interest, and must not try to get a conviction 'at any cost.' Rather, the prosecutor must strive to convict only the guilty and to uncover the truth."
Leaf and other social justice activists never should have been prosecuted, Lurie and Kremnitzer argue. Or detained during proceedings against them.
At the time, Judge Tzachi Liziel said:
"(T)he police should have ordered their release, whether conditional or unconditional, at the police station, and should not have brought them to court while requesting that they be held in custody until the conclusion of the proceedings."
Since the late 1990s, repeated State Comptroller as well as public and professional committee recommendations were made to let the State Prosecutor's Office alone have prosecutorial authority.
In 2001, it was decided to do so. Police should focus solely on investigations, it was said. Reform didn't follow.
Israel's Police Prosecution Department continues initiating around 90% of criminal prosecutions.
According to Lurie and Kremnitzer:
The Leaf et al case "illustrates the fundamental problem of the very existence of a criminal prosecution system that is subordinate to the Police."
"The subordination of the Police Prosecution Department to the investigative body creates an increased tendency to obtain convictions…at the expense of the true role of the prosecution: to represent the public interest."
"Subsequent intervention by the Attorney General is relatively rare, and cannot right the wrong done to a person who has been accused of criminal behavior and who has been forced to live in the shadow of charges that should never have been brought in the first place."
After the fact intervention can't undo irreparable damage done. Or enlist public confidence in police fairness.
Without it, they can't fulfill their designated investigatory role. Far-reaching reform is urgently needed, Lurie and Kremnitzer argue.
"(D)eep-rooted effort of system-wide reform." Police should "conduct investigations." State prosecutors should "be responsible for bringing criminal charges."
Anything less seriously undermines the rights of suspects. Often wrongfully accused. Because of no investigative procedure external controls
In 1986, Britain separated investigative and prosecutorial authority. US and Canadian police never were empowered to conduct legal proceedings.
At the same time, police and prosecutorial authorities all too often conspire against defendants governments want convicted. Justice requires reforming this inequity.
Haaretz editors argued against increasing police powers. They "already have certain prosecutorial powers," they said.
"They must not regain the authority to prosecute cases of assault on one of their" own.
They shouldn't have it for any reason. Lurie and Kremnitzer are right. Police should solely investigate crimes. State prosecutors should bring criminal charges when warranted.
In America, judicial unfairness is rife. Israel is no different. Violating fundamental civil and human rights. Mocking democratic principles.
"The police have given the public many reasons to doubt the integrity of their decisions and intentions," said Haaretz editors.
"They have arrested and harassed demonstrators, accusing them of violence, even though footage shows that the police are the violent ones."
"Police officers have provided false evidence - and received feeble penalties for it."
"Expanding the police's authority to let them put people on trial for attacks on officers is a dangerous step that must be avoided."
"The police's job is to serve democracy, not the other way around. It seems the police in this country sometimes forget this."
"It seems" Haaretz editors believe Israel's repressive, racist, hardline, irresponsible, ruthless, lawlessness government is democratic.
Never from inception. For sure not now. Under its most extremist government ever. Reforming this injustice matters most.
Stephen Lendman lives in Chicago. He can be reached at firstname.lastname@example.org.
His new book as editor and contributor is titled "Flashpoint in Ukraine: US Drive for Hegemony Risks WW III."
Visit his blog site at sjlendman.blogspot.com.
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