Why Israeli justice is suspect
by Jonathan Rosenblum
February 16, 2001
Attorney-General Elyakim Rubenstein is found of citing classical Jewish sources for guidance on major public policy issues that cross his desk. As a learned Jew, who obviously takes pride in that learning, Rubenstein surely knows that no principle is more central to halachic jurisprudence than the requirement that a judge be above the slightest suspicion of bias.
The Talmud describes, for instance, how Rabbi Yishmael had a tenant farmer who used to bring him a basket of fruits every Friday from Rabbi Yishmael’s orchard. One Thursday, the tenant came to town for a court case and brought Rabbi Yishmael his fruit a day earlier. Rabbi Yishmael refused to accept it lest even the slight benefit of receiving the fruit a day earlier prejudice him as a judge. Indeed he went even further and refused to participate in his tenant’s case out of fear that the mere offer of the fruits a day earlier than usual might predispose him favorably towards the tenant.
A judge is forbidden to hear the claims of one party without the other party being present to present his counterclaims. The Maharal explains that even a momentary leaning towards one side before the other side is heard is prejudicial because a person does not like to change his mind no matter how momentary his opinion nor how tentatively held.
In light of the Torah’s extreme sensitivity to the slightest potential for bias, Rubenstein’s decision to appoint attorney Yehoshua Resnick, the chief prosecutor in the Deri case, to make a recommendation on Deri’s petition for a new trial, is incomprehensible. Resnick may be one of the 36 righteous men of the generation and he may have served in the State Attorney’s office with distinction for years, he is too personally involved in the Deri case to offer a neutral judgment of the seriousness of the request for a new trial. (Professor Ruth Gavison has characterized the petition for a new trial as raising a not insignificant number of sustantial questions.)
He devoted nearly a decade of his life to the task of putting Deri behind bars. (At a office Purim Party shortly after the filing of the indictment against Deri, Resnick and then State Attorney and present Supreme Court justice Dorit Beinisch, celebrated their triumph by appearing and participating in skits dressed as Deri and Rabbi Ovadiah Yosef, respectively.) Resnick’s opinions on Deri’s guilt are neither momentary nor tentative. Prior to being appointed to review the petition for a new trial, Resnick had already given numerous interviews in which he expressed the opinion that new evidence cited by Deri’s attorneys was irrelevant and could not possibly alter the verdict.
Aside from his firmly held views on Deri’s guilt and understandable personal interest in seeing his conviction upheld, there is yet another reason why Resnick is the last person who should be offering an opinion on Deri’s petition for a new trial: His own conduct is one of the central issues in that petition.
The main thrust of the petition for a rehearing is that Yaacov Shmuelewitz, the state’s principal witness against Deri and the only one linking him directly to charges of bribery, perjured himself when he told the district court that he had been charged in Switzerland with nothing more than minor "business negligence.’’ In fact, Shmuelewitz was charged with having played a central role in fraud schemes of over $400 million, and pled guilty to all but one count of fraud. The credibility of Shmuelewitz, who was characterized by the district court as "an unassailable rock’’ and whose name was mentioned in the district court’s opinion 1,469 times, is crucial to the entire Deri case.
Resnick cannot possibly fairly evaluate Deri’s petition in light of the strong grounds for suspicion that he personally knew of the charges against Shmuelewitz in Switzerland and nevertheless allowed him to testify falsely. Those suspicions have been detailed by Yoav Yitzchak, Israel’s leading investigative reporter, columnist Amnon Dankner, and Ben-Dror Yemini, director of the Center for Law, Society and Democracy. They note that Resnick recently met privately with Shmuelewitz raising concerns of coordinating testimony.
Resnick and Beinisch flew to Switzerland to secure Shmuelewitz’s release from a Swiss jail to testify against Deri. That alone suggests that they knew the nature of the charges against Shmuelewitz. In addition, it appears that Israel and Switzerland worked out a plea bargain for Shmuelewitz in Switzerland. When he initially arrived in Israel, Shmuelewitz began legal proceedings to prevent Israel from returning him to Swiss jail. But in the middle of his trial, he suddenly asked to return to Switzerland. Once in Switzerland, Shmuelewitz entered into a plea bargain under which he pled guilty to the fraud charges. Rather than sit in jail though he was simply expelled from the country, a free man.
Shmuelewitz, it would seem, was told in the middle of his testimony that a plea bargain had been worked out for him with Swiss authorities, almost certainly with the heavy involvement of Israeli prosecutors. Such an arrangement could obviously not have been achieved without the Israeli officials, chief among them Resnick, being intimately acquainted with the nature of the charges against Shmuelewitz.
Rather than seek to clear up these suspicions, the State Attorney’s office has stonewalled the issue. (They have been aided by a compliant press, which with the notable exceptions of Yitzchak, Dankner, and Yemini, has shown little curiosity about the matter.) State Attorney Edna Arbel has refused to release the correspondence of her office with Swiss authorities. In addition, the State has refused to make an official request to Swiss authorities to release the documents, despite the indication of the Swiss to Deri’s attorneys that they would do so if they received such a request. Finally, Arbel flatly refused the request by Deri’s attorneys to begin an investigation of Shmuelewitz for perjury, even though that perjury seems clearly established.
That stonewalling is unfortunately consistent with a number of recent cases in which the Attorney-General and State Attorney have proven more concerned with protecting their own than the pursuit of justice. Most notable among those instances, of course, was Rubenstein’s attempt to place a gag order suppressing publication of an internal protocol of the State Attorney’s office in which prosecutors searched for ways to avoid bringing criminal proceedings against Avishai Raviv. At least one participant at the meeting suggested that Justice Beinisch had authorized actions by Raviv that resulted in incriminating others when she was State Attorney.
The issue today is no longer Deri’s guilt or innocence: Shmuelewitz could be the biggest liar in the world and Deri still guilty. The real issue is the impartiality and fairness of the State Attorney’s office from the Attorney-General on down.
Related Topics: Israeli Supreme Court
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