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A legal absurdity led to a murder conviction.
The Supreme Court's decision requires a rethink
The decision to hold a retrial for a person convicted as a minor on the basis of rejected evidence sheds light on the problematic nature of the separate trial system, and the need to find a solution to it without infringing on the rights of the accused.
At the same time, the struggles in the Judicial Selection Committee show that the struggle between conservatism and activism is more fluid than it seems.
Tags
The State Attorney's Office
Retrial
Manny Mazuz
Judicial Selection Committee
Avi Nissenkorn
Daniel Dolev
Friday, 11 December 2020, 17:32
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In the video: The Supreme Court discusses Roman Zadorov's request for a retrial (Photo: Roni Knafo)
It is difficult to overstate the importance of Judge Neil Handel's decision this week to hold a retrial for Joseph (pseudonym), who was convicted of murder when he was a minor based on disqualified evidence and has been in prison for nearly a decade.
This is especially true because half a year ago Judge Handel made a very similar decision - and ordered a retrial for Lior Mirez, a Tax Authority employee convicted of bribery about a decade ago.
The similarities between the two sentences are amazing.
Against Mirez, the police used dubs that threatened him until he confessed, while against the minors who were accused along with Yosef of the murder of Amjad Shavana near Kafr Qassem in 2009, almost every dubious method imaginable was taken to violate their rights.
They were interrogated for long hours, without the presence of their parents (a right reserved for them as minors), without being warned that they were suspects, as some of the interrogations were not documented in violation of the law.
That's the police part of the story.
But it is no less interesting to examine the part of the State Attorney's Office.
In both cases, the prosecution decided to split the trial into two separate trials.
In Yosef's case, he and another boy were tried before the panel headed by Judge Finkelstein, and two other boys charged with the exact same charges were tried before the panel headed by Judge Avraham Tal.
This created a puzzling situation in which on the same floor in the Central District Court in Lod, two different vehicles are discussing the same murder.
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It is difficult to overstate the importance of the decision.
Judge Neil Handel (Photo: Jonathan Zindel / Flash 90)
It is worthwhile to dwell for a moment on the reason for this conduct of the State Attorney's Office, which lies in the Evidence Ordinance.
Since the defendant has the right to refrain from self-incrimination, he cannot be required to testify at his trial.
This is in contrast to a "mere" witness, whom the prosecution may oblige to testify.
The practice born out of this is that when some of those involved gave incriminating details in their investigations and some maintained the right to remain silent, the prosecution would file separate indictments against those who spoke and against those who remained silent.
Thus, in the trial of the "silent" the prosecution can oblige their comrades to testify against them, since in the same trial they are witnesses, and not defendants.
If they were all accused together, she could not oblige any of the defendants to testify.
There is also a risk in this method, which was indeed realized in both Yosef's trial and Mirez's trial.
Because the two different compositions discuss the same cases, they can reach different decisions that sometimes contradict each other.
It is not just the end result - conviction or acquittal - but mainly the question of whether a particular testimony is admissible or invalid.
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For example, in Mirez - in his own trial, the judges ruled that what he said to the dubbers could be accepted because it was a "free and voluntary confession," and he was convicted.
However, at the trial of his accomplices he was called to testify, this time as a witness on behalf of the prosecution and not as a defendant.
There the judges decided to disqualify the things he said to the dubbers because they threatened him, and the other accomplices were acquitted.
In Joseph's case, the two boys who allegedly provided incriminating evidence were his friend and cousin, who were required to testify against him at his trial.
Indeed, Joseph was convicted mostly based on their testimony.
The boyfriend and cousin's trial lasted longer because there they were in the status of defendants, which necessitated a deeper examination of the way their testimonies were collected - which is also why the court eventually decided to disqualify their testimony and acquit both.
But for Joseph, who had already been convicted and his appeal to the Supreme Court had also been rejected, it was already too late.
Separation of sentences is not some deceptive method used in the dark by prosecutors walking in the gray area of the law.
It is enshrined in the guidance of a state attorney, open to all, and in fact it is quite obligatory from the wording of the law today.
It may be that the conclusion is that the Knesset needs to rethink this arrangement, and produce a legal solution that will prevent the absurdity created today, without infringing on the rights of the defendants.
This is probably not the most urgent thing for Knesset members, who in the meantime prefer to deal with the question of whether and when they will be dispersed again for another election period.
As a wheel spins
If we have already mentioned the Knesset, it is impossible not to refer to the drama that erupted earlier this week about the Judicial Selection Committee.
Summary of previous chapters: The three right-wing representatives on the committee boycotted the committee meeting in an attempt to prevent it from convening because they thought the law stipulated that it could not convene when less than seven of its nine members were present.
Justice Minister and committee chairman Avi Nissenkorn arrived equipped with a counter-opinion from Justice Department spokeswoman Leah Rakover, and the committee did convene and even appointed no less than 61 justices to the Magistrates and District Courts.
By the way, at least once during the time of the former Minister of Justice, Ayelet Shaked, the judges are the ones who threatened to boycott the committee meeting that dealt with the appointment of judges to the lower courts.
So it was Shaked who pulled out an opinion from Speaker Rakover that the committee could act anyway, and emptied the threat of content.
Back to this week's events.
This role reversal is fascinating.
Mark, for example, recently lamented "unbridled judicial activism," and here she is asking the High Court to intervene against the minister's decision to convene the committee, in order to preserve the rights of the minority before the majority.
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Will have to persuade at least one of the right-wing rebels to support the appointment of a Supreme Court judge.
Nissenkorn (Photo: Alex Kolomoisky)
Equally fascinating is the next fight that marks the appointment of two Supreme Court justices to replace Hanan Meltzer and the retiring Meni Mazuz.
In the past, to appoint judges to the Supreme Court was enough an ordinary majority of committee members.
At that time, it was also customary for the Knesset to send a representative from the coalition and a representative from the opposition to the committee, and sometimes the Bar Association did the same.
The result is that the three representatives of the Supreme Court would usually vote for appointments to the Supreme Court as one man, and under the auspices of the split in the other bodies they would be able to recruit one of the MKs and one of the representatives (and sometimes both), thus obtaining at least five votes. This situation is the former committee member who this week won headlines from a completely different field - Gideon Saar.
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Who will replace him?
Retiring Chief Justice Menachem Mazuz (Photo: Yonatan Zindel, Flash 90)
In 2008, Saar led an amendment to the law, which meant that in order to appoint a judge to the Supreme Court, seven committee members were needed, and not a simple majority.
It allows all three members, and especially three of the four politicians on the committee, to unite and block an appointment they do not want.
Since then many things have changed, especially the balance of power in the Judicial Selection Committee.
Former Justice Minister Shaked has made an alliance with former Bar Association chairman and current criminal defendant Efi Naveh. Suddenly the three judges were the ones who found themselves in the minority, and welcomed at least the veto power given to them by Saar's amendment. Agree, but in order to appoint replacements for the waiter and Mazuz, the minister will have to persuade at least one of the right-wing rebels to break the boycott.
The best proof
The struggle for the appointment of Supreme Court justices is often labeled as a struggle between conservatives and liberals, or between legal conservatives and legal activists.
The truth is that these two divisions do not always reconcile with each other, and more importantly - they do not always reconcile with reality.
The great pride of Eilat Shaked, Judge Alex Stein, who appointed him, often took "activist" moves during his short tenure and overturned government decisions.
For example, he was part of the panel that overturned the government’s decision to grant sweeping sick leave to workers entering isolation during the Corona period.
On the other hand, despite the right-wing allegations about a "left-wing" court, 11 judges unanimously refused to prevent defendant Benjamin Netanyahu from forming the government.
Supreme Court judges really owe nothing to whoever appointed them.
The Supreme Court (Photo: Reuven Castro)
It is true that judges have different positions on how the law should be interpreted on different issues, and on the breadth and depth of criticism that the court should exercise on the government and the Knesset.
But the division into "conservatives" and "activists" is far from hermetic, and this simplistic show mainly serves the media and politicians.
To the court she is certainly not doing well.
One of the nice things about our system is that Supreme Court justices really owe nothing to whoever appointed them.
The appointment is guaranteed to them until the age of 70, and a ruling that will annoy politicians will not hurt them in any way.
The fact that they often rule against the interests of the politicians who appointed them - is the best proof that this mechanism works.
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