Israeli Justice: No Public Defender and Palestinians Don't Exist

By Kenneth R. Kahn

In 1931, Winnie Ruth Judd of Phoenix, AZ was convicted of murdering her two best friends, dismembering their bodies and accompanying them via train to Los Angeles.

In a book questioning the circumstances surrounding that celebrated case, author Jana Bommersach revealed that, in that era, police were not required to supply defense attorneys with copies of their reports and the press was simply told what the police wanted it to know. Today, the rules require that all sides be supplied with police reports and witness statements. During the 1930s, defense attorneys also had to hire their own detectives. In court, they relied upon attacking the credibility of witnesses and sought to expose the existence of a report by "tricking" police officers.

Such U.S. conditions of 60 years ago still exist in Israel, according to a report prepared for the New Israel Fund, an internationally recognized foundation whose purpose is to bring peace and social justice to Israel. The report by Israeli attorney Dana Marshak is a study of Israel's criminal justice system to determine the feasibility of establishing a public defender system based on models Marshak studied in Washington, DC, Philadelphia, Boston and Harlem.

Presently, Israel operates under an ad hoc court-appointed system implemented on behalf of indigent criminal defendants at the discretion of the trial judge. Additionally, Israel operates both civilian and military judicial systems with varying results for both the accused and the state.

An unfortunate defect in the report is its failure to consider the place of the Palestinians in the Israeli criminal justice system. So far as this otherwise useful report is concerned, the Palestinians do not exist.

In 1983, a study by Professor Eliahu Harmon of Hebrew University for the Israeli Ministry of Justice recommended establishment of a public defender system along with the continuation of the ad hoc, court appointed system. This recommendation was adopted by the Bechor Commission, headed by former Israeli Supreme Court Justice David Bechor. Among the members of the commission were representatives from the Ministry of Justice, the court administration, the state's attorney, the private bar and two experts on criminal law.

Nevertheless, 1930s-type procedures which permitted the withholding of police reports and necessitated reliance upon private funds for defense counsel and investigators still exist in Israel. The deck is stacked in favor of the state.

Such American cases as Gideon v. Wainwright, establishing the right to public counsel, defined how the judiciary protects the rights of those not convicted of a crime and the ability of a democratic state to protect life and property.

Like the U.S., Israel, too, had its watershed case which challenged the court's engrained denial of counsel to indigent defendants. Shumel Aberjil was convicted in Jerusalem District Court of breaking into a building. Sentenced to two years in prison and two and one-half years suspended, as well as 18 months from a formerly suspended sentence, Aberjil, like Gideon, was indigent and requested court-appointed counsel. The judge ignored his request. Aberjil petitioned the court, arguing that even in a case where it was not mandatory, the court should have employed its discretionary powers for appointment of counsel.

Judge Levine, expressing dissatisfaction with the currently employed ad hoc system, remarked, "If only it were possible to set up, by act of law, and parallel to the prosecution which represents the state, a public defender who is available to serve the accused, then this would be the desirable solution that would bring its blessing upon the defendants, as well as the administration of justice."

Israel inherited its criminal justice system from the British Mandate of Palestine. As most Americans are aware, the U.S. derived its system of jurisprudence from English common law. From that common starting point, the two systems have taken different directions, with widely varying implications for the accused. In Israel, there is no jury system. However, there are basic constitutional safeguards such as the presumption of innocence, the privilege against self-incrimination, the right to silence, the right to cross-examine witnesses and the burden on the state of providing proof beyond a reasonable doubt.

The accused confronts police and prosecutors without the benefit of counsel and the support of friends and family. The police are not required to give Miranda-like warnings, and can request detention of the accused for up to 90 days for "investigative purposes" with the approval of the attorney general. Furthermore, a magistrate may postpone any attorney-client meeting for up to 30 days.

Moreover, defense attorneys are not allowed to contact witnesses, despite the fact that a legal defense rests on two fundamental pillars: the ability to contact and cross-examine witnesses, and attacking the procedures utilized and evidence submitted by the police.

Without Benefit of Counsel

The results were revealed in a 1983 study by Professor Kenneth Mann of Tel Aviv University that found 25 percent of defendants in district (felony) courts and 70 percent of defendants in the magistrate (misdemeanor) court were not represented by counsel during arraignment.

Objections to the establishment of an Israeli public defender system to complement the current ad hoc court-appointed system came from private lawyers who feared such free services would be detrimental to their business. The study, however, showed that in the absence of a public defender, those who would benefit do not hire a private attorney but simply remain unrepresented. More to the point, some judges and prosecutors feared that such representation would end current reliance upon "plea bargaining," and increase the number of defendants tried.

In 1982, Israel spent on its criminal justice system a total of $82,000, or two cents per capita. By comparison, the U.S. spent $439,500,000, or $2.16 per capita, England spent $2.61 per capita, Canada $1.05 and Sweden $1.32 per capita.

By contrast, Israeli's military justice system compares favorably with military justice as administered in the U.S., which is regressive and dependent upon a system of "command influence." Israel's military justice system requires, under Article 316 of the 1955 Military Justice Law, the mandatory appointment of counsel for all stages of litigation.

Additionally, the 1955 act establishes a military defender system with its own budget, operating under the aegis of a military judge and prosecutor. According to the Mann study, the defender is independent of the military chain of command and is, unlike its U.S. counterpart, not controlled by or subordinate to "command influence."

How, then, as the self-defined "only working democracy in the Middle East," should Israel be adjudged in providing legal services for those whom President John F. Kennedy once defined as the weakest links in society? The Israeli reports reveal in civilian courts the existence of judicial privilege, the absence of fundamental constitutional rights for the accused, and a per capita expenditure that is shockingly low considering that Israel is the largest single recipient of U.S. aid, receiving in 1991 approximately $5.7 billion. By contrast, Israel's military justice system for members of its own armed forces compares favorably with that of the United States.

America's National Legal Aid and Defender Association reminds us that "criminal law has been called one of the most faithful mirrors of a given civilization, reflecting the fundamental values on which the latter rests. In the larger sense, the concern of our society with the requirement of fair trial is a reflection of its interest in fundamental human rights."

Kenneth R. Kahn is a Jewish peace activist and free-lance writer living in Washington, DC.