ISRAEL IMPROVES ACCESS TO RETRIALS

Supreme Court Justice Miriam Naor's decision last week to order a retrial for a defendant convicted of sodomizing a minor - following the acquittal of another man who was accused of similar crimes by the same minor - would not have been made 10 years ago. In 1996, the laws governing the courts were changed, and a new reason joined the "classic" reasons for retrials, such as a court ruling that a significant piece of evidence was actually a lie or a forgery. The reason: if the president of the Supreme Court or another judge appointed by the president finds "there is a real suspicion that a conviction would be a miscarriage of justice." That was the reasoning Naor used in her decision.

Up until the amendment, a retrial depended on new evidence that was not presented during the original trial, could not have been presented during that trial, and could have caused a different outcome in the trial. A committee headed by then-justice Eliezer Goldberg noted in a 1994 report that the law took too narrow a perspective in the reasons it gave for allowing a retrial. As the committee said, the law did not have an answer, for example, to cases where a defending attorney failed "because he or she did not accord the proper importance to a piece of existing evidence" or because the defendant's lawyer did not ask an important question. The committee said that the accused is the one who suffers from the lawyer's misdemeanor and as a result, "a new population of people who cannot get an experienced lawyer to provide a comprehensive defense" is harmed.

The committee's position, which emphasized the need to expand the reasons for retrials, motivated the Knesset to legislate a "reasons basket" based on the concern that some convictions constitute a "miscarriage of justice" for some defendants. This decision came also in light of the reduced confidence in the guarantees against unwarranted convictions. But this was not enough to change the law. Much depends on the Supreme Court's interpretation of the degree of the "real suspicion" and what is included in "miscarriage of justice," which justifies a retrial. In the period directly after the law was amended, the Supreme Court found it difficult to internalize the amendment made by the Knesset, which enables calling a retrial for a judicial "overview" of the entire process, with no need for new evidence.

Over time, in light of the criticism of the court's readiness to accept defendants' confessions without independent external evidence, the Supreme Court began to take seriously its authority to order a retrial. In ordering a retrial for Amos Baranes because of inappropriate behavior by the police during its inquiry, then-justice Dalia Dorner emphasized that under the Basic Law on Human Dignity and Freedom, the importance of due process overrides the importance of the finality of the judicial process.

Even if it is clear that the retrial is not another appeal process and is "extraordinary and unusual" as Court President Aharon Barak said in 2003 when denying Arye Deri a retrial, it is clear that the retrial has become part and parcel of the Israeli legal system. This welcome trend, which has also become part of the British and Australian approach, shows there is a recognition that the legal system is not immune to mistakes.

The fact that in the last four months the Supreme Court has decided on four retrials is evidence of openness on its part, but this also raises questions in at least some of the cases about the sturdiness of the grounds for convictions. The reasons for retrial justify examinations, a kind of retrial of the entire law enforcement system - police, prosecution and judiciary - by a committee of experts in criminal law.

Justice Naor, with her detailed, reasoned decision, took an important step for the institution of retrial in its entirety. She saw a reason for a retrial because of " a real worry about a miscarriage of justice" when another defendant was acquitted based on evidence provided by the same complainant who brought about the conviction of the man now up for retrial, despite the fact that the alleged acts were not committed at the same time. The justice found that the concern for miscarriage of justice in the "reasons basket" includes cases in which the accused did not win thorough and professional defense in the original trial.

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