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10 Ellul 5761 - August 29, 2001 | Mordecai Plaut, director Published Weekly








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Shema Yisrael Torah Network

Opinion & Comment
Observations: High Court President Sees Judges as "Immune to Human Defects"

by S. Yisraeli

Two leading jurists launched harsh criticism against the High Court President over his forgiving attitude toward judges who express predispositions regarding defendants before hearing all of the testimony. They say Aharon Barak generally refuses to disqualify judges because he perceives them as if they were immune to human defects and sees every judge in his own image.

An article on this topic written by Attorney Tzvi Noach appeared in the financial newspaper, Globes, in April under the headline, "Everyone Subject to Judgment Except for the Judges." It begin with a number of examples: In response to a request by the state's attorney to call witnesses to the stand in a criminal case, a Tel Aviv District Court Judge got the impression that the defendant was dictating to his attorney how to examine the witnesses. The judge did not stop there and added the following remarks in the courtroom: "Since I am familiar with this type, meaning the defendant, I will not allow questions identical to those posed in hearings in which he was not present."

Attorney Noach inquires rhetorically, "Was the defendant in danger of having his trial skewed by the judge due to the stigma she placed on him ("this type") and due to her overall stance revealed through these words?

After citing a few more examples, Noach concludes that in every instance, like in many other cases, justification was not found to disqualify the judges, despite the fact that the law provides the litigants the right to request a judge to remove himself in cases with "circumstances that create substantial suspicions of partiality in the handling of the trial." Usually these requests are rejected by the presiding judge, in which case the litigants have the right to file a direct appeal to the High Court President, who can then elect to try the appeal himself, or to assign another High Court justice to try it. The majority of appeals are tried before the High Court President and his opinion on the subject is clear and final: in favor of the judge.

Attorney Tzvi Noach notes that the judicial system casts judgment, but the question is how willing is it to accept judgment cast upon it and to confront criticism without assuming a defensive stance?

According to Noach on various occasions the dealers and consumers in the legal world--plaintiffs, defendants, attorneys, and even one minister of justice--have challenged the judicial system, which reacts, as a rule, with obvious displeasure. The judges were not fond of a recent offer by the Attorneys' Bureau to provide feedback. The judges tended to show an aversion to the idea of attorneys giving them grades.

Noach writes, "The policy that the legal establishment demonstrates toward filing requests to disqualify judges is no different. It is an attitude of suspicion that endeavors to restrict not only the weight given to this specific defendant's personal impressions, but also the impressions of a normal defendant, all presented as an unconvincing comment on the faculties judges are supposedly endowed with. Attorneys and defendants know that a disqualification request has slim chances of being accepted. In recent years Aharon Barak has been making efforts to tighten the guidelines for disqualification more than ever before."

Noach notes that the legal establishment has always had an approach that encourages depersonalizing the judge. In his article, "The Honorable Judge", Professor Yehoshua Weissman writes, "The honor felt toward the individual judge sitting on the judge's bench is not at all dependant on his personal attributes, whether he is intelligent or a fool, knowledgeable or ignorant, pleasant or gruff. The attitude toward the judge is the attitude toward the trial."

On this remark Noach comments, "This is pure fiction which may have been true in the past, but does not apply to the present. The pretense of the depersonalized approach is thoroughly unconvincing. In fact it eats away at the public's faith in the judicial system. The approach articulated by Lord Denning, according to which `judges are not an acme of perfection, they are liable to err and to bring about injustice. Their errors stem from lack of knowledge, a lack of ability, partiality and even from hostility,' represents a more accurate portrayal of the reality."

The problem is that Aharon Barak is more amenable to the obsolete approach, "which miraculously makes the judge seemingly immune to human defects." This is constantly evident in his approach, according to which "those who seek to disqualify a judge leave a stain on the entire judicial system . . . "

Noach notes that such a determination defies all logic and explanation. A litigant files a request to disqualify a presiding judge in a certain case based on a specific event, and that's all there is to it. He does not want to confront "the entire judicial system." There is no relationship between his claims against the judge's actions and the "entire judicial system." This is not what someone who files a request to disqualify a judge based on subjective grounds sets out to do, and his request is not perceived as such when viewed objectively. In fact the opposite is true-- requests for disqualification are reviewed based on guidelines set out by the judicial system, and the requests filed claim that the judge is the one who deviated in this case, based on accepted judiciary guidelines.

"It goes without saying that this apparent comparison Barak makes--between the individual judge and the judicial system as a whole, between private claims brought against a certain judge in a certain incident and supposedly blemishing the entire judicial system--is a groundless comparison designed to accentuate the gravity of the consequences that result from the disqualification request, and to raise the minimal requirement necessary to disqualify a judge. With this as the starting point, it should come as no surprise that (excepting rare instances) judges who make remarks during court proceedings that indicate even the possibility of having prejudices are not disqualified. Judges who have been exposed to inadmissible evidence or a defendant's criminal record are relied on to have "erased" the information from their memories. In cases where multiple defendants stand trial for the same charges, presiding judges who express their opinion of Reuven in the decision handed down to Shimon are relied on to have not already finalized their decision regarding Reuven. Judges who apply pressure on either side to accept a given position at the beginning of a trial are relied on to disregard this stance when the time comes, and to judge the issues of the matter."

On this matter he points to a further example: a plaintiff filed a suit for slander and violating manufacturing rights. The judge did not have full command over the facts in the case, but this did not prevent her from expressing a pointed stance at the opening of the hearing. The plaintiff's attorney corrected her. At a later stage the judge incited him by saying, "Please take your seat. I am attending to the matters at hand, as far as you are concerned, anyway."

Regarding this incident Noach asks, isn't a judge who takes upon him or herself at the opening of a trial, without having a proper grasp of the questions dealt with in the case, to "tend to the matters" of one of the sides, liable to wrong the other side? According to Barak, the answer is no. According to his approach, the "question of the Honorable Judge's familiarity with the case . . . neither adds to nor detracts from my decision in this matter."

The article also cites the opinion of jurist Moshe Gorali, who also remarks that the disqualification of a judge is a rare sight at the Israeli courthouse. He says there are two main reasons at the root of this scarcity: the test and the policy. The legal test for disqualification is a "realistic possibility" of partiality on the judge's part. A reasonable concern or an unsubstantiated possibility is insufficient. The litigant who files a disqualification request has to prove that the "game is fixed," i.e. that the judge has already finalized his stance in terms of the outcome of the proceedings.

"Of course this test, which is intended to lay bare the judge's mind and soul, is almost impossible to maneuver. Attempts to demonstrate it through the harsh remarks made by the judge are not always enough."

He mentions a series of examples: Judge Victoria Ostrovsky Cohen referred to Aharon Abu-Chatzera as "this type." Another judge referred to a defendant as "this psychopath." "There are a few more murderers who have to be heard," said another judge. None of these remarks were enough to disqualify the judge in question from deciding the cases. Commenting on this pattern, High Court Justice Yitzhak Zamir said, "Judges' remarks may be grounds for regret and sometimes may be grounds for reproach."

Gorali also claims that Aharon Barak has gone to extremes in his clemency toward various judges. "The High Court President extends his judges considerable credit. Sometimes too much. Barak tends to have pity on judges. He also tends to view them, in terms of their conduct at least, in his own image."

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