NYLS Law Review Vols. 22-63 (1976-2019)

Volume 48 Issue 1 Criminal Defense in the Age of Article 6 Terrorism

January 2004

Creating a Public Defender System in the Shadow of the Israeli – Palestinian Conflict

Kenneth Mann Tel-Aviv University

David Weiner Bar Ilan University

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Recommended Citation Kenneth Mann & David Weiner, Creating a Public Defender System in the Shadow of the Israeli – Palestinian Conflict, 48 N.Y.L. SCH. L. REV. (2003-2004).

This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Law Review by an authorized editor of DigitalCommons@NYLS. 18178_nlr_48-1-2 Sheet No. 49 Side A 04/27/2004 12:08:32 * EINER W AVID D 91 ANN AND NTRODUCTION I M ENNETH K OF THE ISRAELI OF THE – CONFLICT PALESTINIAN This article discusses the creation of the Israeli Public De- the creation of the Israeli This article discusses right to counsel in different Different societies approach the * Kenneth Mann, Chief Public Defender, State of Israel (1996-2002), Associate CREATING A PUBLIC DEFENDER SYSTEM IN THE SHADOW SYSTEM IN THE DEFENDER A PUBLIC CREATING M K Professor of Law, Faculty of Law, Tel-Aviv University; Partner, Mann & Co., Attorneys-at- Law, Tel-Aviv. David Weiner, Deputy Chief Public Defender and Director of Supreme Court Appellate Division, Israeli National Public Defense Organization; Adjunct Lec- turer of Criminal Procedure and Ethics, Faculty of Law, Bar Ilan University. fender System and its role in representing Palestinians charged with its role in representing Palestinians fender System and in Israel, including terrorist offenses.crimes committed We chose Defender in creation of the Office of the Public to write about the it is close to our hearts.Israel (OPD) because Each of us worked in it closely since its its formative years and observed the OPD during of the OPD 1996. We believe that the experience establishment in in protecting about the role of government yields valuable insights judicial system during a period of the value of due process in its intense conflict. this particular legal right in diverse ways, and the task of comparing judicial systems is highly problematic. right to counsel In Israel, the proceedings has not been ex- for indigent defendants in criminal the United States.tended as far as it has been in Although this due process in the Israeli judicial seems to imply that there is less because it does not take into system, that conclusion is simplistic of criminal procedure in Israel. account other distinctive attributes protect human dignity and The question of how different societies sanctions is beyond the parame- fairness in their systems of criminal ters of this article. how one of Our goal here is limited to showing to counsel, has developed in those due process rights, the right Israel. invested with We will also describe how the OPD, which was that right, has dealt with provid- the responsibility of administering living in the Occupied Territo- ing defense counsel for Palestinians ries. individuals This task has been difficult because many of these \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 1 16-APR-04 9:30 C Y 18178_nlr_48-1-2 Sheet No. 49 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 49 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 49 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 NEW YORK LAW SCHOOL LAW REVIEW A government agency providing legal aid in a situation of vio- in a situation legal aid agency providing A government the norm.The Barghouti case does not represent our expe- In parts.This article is comprised of three The first part provides 92 also as an power, but as an occupying Israel not only today see enemy. aid to per- deny such might arguably confrontation lent political as an enemy. view the state sons who circumstances, In such citizenship or aid might be conditioned upon eligibility for legal place of residence. preconditions have been im- In Israel, no such aid in criminal cases.posed upon legal Since its establishment, the to suspects to provide defense services OPD has been authorized and place of resi- regardless of their nationality and defendants, dence. representation to tens of The OPD has provided legal suspected of clients, including Palestinians thousands of Palestinian motivated acts of violence.committing ideologically To date, no sought to curtail or political organization has governmental agency Palestinian individuals charged the OPD’s mission of representing with committing crimes in Israel. serious chal- Ironically, the most in the widely publicized and lenge faced by the OPD emerged Barghouti, a Palestinian leader highly controversial case of Marwan and refused to accept court or- who denied the court’s legitimacy dered representation. special prob- Barghouti’s case posed a very fundamental questions about lem for the OPD because it raised defense in a society enmeshed in due process and the role of public violent conflict. attorneys working for an of- rience working for the OPD, defense have managed to achieve fice funded by the Israeli Government including those charged with cooperation with Palestinian clients, terrorist crimes. of Israel have Public defenders funded by the State and confidentiality with Palestin- created enclaves of trust, loyalty, of crimes.ian clients charged with all types will try In this article we sense to the island of coopera- to give some legal and sociological an overwhelmingly hostile political tion that has been sustained in environment. to historical background by tracing the development of the right state-funded defense counsel in Israel. We describe the impact of for the nascent OPD, which has served as an important vehicle change. The second part of the article addresses the availability of \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 2 16-APR-04 9:30 18178_nlr_48-1-2 Sheet No. 49 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 49 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 50 Side A 04/27/2004 12:08:32 3 93 1-10 URVEYS Infusion of SRAEL S SRAEL I Forty Years of I Constitutional ENERAL : G . 515 (1975); Yoram . 324 (1975); Daniel EV EV SRAEL OUNSEL IN I 1 Ruth Gavison, C . L. R see . L. R SR SR AW OF L EFENSE , 10 I HE , 10 I T D 39-58 (Amos Shapira & Keren C. DeWitt- NTRODUCTION TO THE LAWS OF , . 192 (1975); Daniel Friedman, I . 431 (1990); David Krestzmer, EV There was no time to create all of There was no time to create all in The Effect of Foreign Law on the Law of Israel: EV , 11-38 (Amos Shapira & Keren C. DeWitt-Arar 2 SRAEL I UNDED . L. R . L. R -F SR SR SRAEL I The Institutional Organization of the Israeli Legal System, in , 10 I TATE , 24 I S A. Historical Background Constitutional Law, in ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI Daniel Friedman, IGHT TO R Law and Administration Ordinace, 1948, 1 L.S.I. 7. Independent Development of Israeli Law HE History and Sources of Israeli Law See See generally, NTRODUCTION TO THE LAWS OF I The State of Israel inherited its legal system from the British The State of Israel inherited its 2. 1. I. T I. Zamir & S. Colombo eds., 1995). NTRODUCTION TO THE LAWS OF M K Shachar, Friedman, I (Amos Shapira & Keren C. DeWitt-Arar eds., 1995).(Amos Shapira & Keren C. DeWitt-Arar eds., For the institutional organization history, of the Israeli legal system and its constitutional Arar eds., 1995); Asher Maoz, ( eds., 1995); Asher Maoz, Law, in Israeli Law: Constitutional Law Remnants of the Ottoman Period the Common Law into the Legal System of Israel the Common Law into the Legal System of Government, which administered the area out of which Israel was Government, which administered of Independence in 1948. created from 1918 until the Declaration declared that almost all Shortly thereafter, the interim government continue to apply to the new of the British legal system would state’s governmental structure. 2003] from the defendants for Palestinian defense counsel state-funded and Gaza.West Bank the disparity between the major We highlight Terri- in the Occupied courts located available in military legal aid pre-1967 within the courts located the civilian criminal tories and of Israel.boundaries the cases in which discuss two recent We also with partic- counsel for Palestinians charged OPD provided defense civilian casualties. actions that caused massive ipation in terrorist challenge faced the article discusses the difficult The third part of case of Marwan Barghouti.by the OPD in the We explain how the could have under- this special challenge, which OPD dealt with built between foundations of professional trust mined the fragile clients. the OPD and its \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 3 16-APR-04 9:30 the many government institutions anew.the many government institutions also serious There were of the new state, resulting divisions within the political community task of adopting an original consti- in the decision to postpone the powers and individual rights. tution that would set out government did contain a statement of The Israeli Declaration of Independence C Y 18178_nlr_48-1-2 Sheet No. 50 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 50 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 50 Side B 04/27/2004 12:08:32 M K C Y . 764 . 718 SRAELI EV EV I [Vol. 48 . L. R . L. R SR SR However, in- However, TALIAN AND 3 The Supreme , I 5 Judicial Review of Knesset H.C. 6055/95 Tzemach Judicial Review without a UROPEAN . See also E 6 David Kretzmer, SSAYS ON 22 (1995), abridged in 31 I . see - E . L. Q. 405 (1983). H.C. 98/69, Bergman v. Minister of Finance, 23 H.C. 98/69, Bergman v. Minister of Finance, EMP . 577 (1969); C.A. 6821/93, United Mizrachi Bank . 577 (1969); C.A. 6821/93, United Mizrachi OMMUNE EV E . L. 95 (1988); Amos Shapira, , 56 T US . the enactment For a discussion of judicial review before . L. R I TUD SR see generally infra NEW YORK LAW SCHOOL LAW REVIEW U. S These laws, whose constitutional status is still not constitutional status is still These laws, whose UROPEAN VIV 4 . 718 (1999)); Basic Law: Government, 2001, 1780 S.H. 158. . 718 (1999)); Basic Law: Government, 2001, E A EV EW EL H.C. 7/48 Al Karbutally v. Minister of Defence 2 P.D. 5, 12; H.C. 10/48, H.C. 7/48 Al Karbutally v. Minister of Defence Israeli Declaration of Independence § Israeli Declaration of 1948 1 L.S.I. 3 (1947-48) (“The 11, N See See . L. R , 8 T SR 6. These Basic Laws are: Law: Basic Law: The Knesset, 1958, 12 L.S.I 85; Basic 5. enacted to date are: Basic Law: The Knesset, 1958, The Basic Laws that were 4. 3. For a discussion of the enactment of the Basic Law: Human Dignity and Liberty 381-539 (A. Gambaro & A.M. Rabello eds., 1999)) OWARDS A AW (a full translation of the opinion of Chief Justice Barak in this case also appears in (a full translation of the opinion of Chief T (1999)). For cases in which the Israeli Supreme Court acknowledged its power of judi- cial review of legislation, P.D.(I) 693, abriged in 4 I plc v. Migdal Cooperative Village, 49(4) P.D Constitution: The Israeli Paradox Freedom of Occupation, 1992, 1454and S.H. 90 (Hebrew); Basic Law: Human Dignity version available in 33 I Liberty, 1992, 1391 S.H. 150 (Hebrew) (English Zeev v. Gubernik, 1 P.D. 85 (translated in 1 Selected Judgements Sup. Ct. Isr. 68, 70 Zeev v. Gubernik, 1 P.D. 85 (translated in (1948)). 1960, 14 L.S.I. 48 (1959-60); Basic Law: 12 L.S.I. 85 (1957-58); Basic Law: Israel Lands, 111 (1963-64); Basic Law: The State Econ- The President of the State, 1964, 18 L.S.I. The Army, 1976, 30 L.S.I. 150 (1975-76); omy, 1975, 29 L.S.I. 273 (1974-75); Basic Law: 34 L.S.I. 209 (1979-80); Basic Law: Judici- Basic Law: Jerusalem, Capital of Israel, 1980, The Comptroller, 1988, 1237 S.H. 30 (He- ary, 1984, 38 L.S.I. 101 (1983-84); Basic Law: 1994, 1454 S.H. 90 (Hebrew); Basic Law: brew); Basic Law: Freedom of Occupation, 150 (Hebrew) (English version available Human Dignity and Liberty, 1992, 1391 S.H. in 33 I State of Israel will be open for Jewish immigration and for the gathering of the Exiles; It open for Jewish immigration and for the gathering State of Israel will be its inhabitants; it will be of the country for the benefit of all will foster the development of Israel; It will en- and peace as envisaged by the prophets based on freedom, justice irrespective of of social and political rights to all its inhabitants sure complete equality of religion, conscience, language, educa- religion, race or sex; it will guarantee freedom Places of all religions; and it will be faithful tion and culture; it will safeguard the Holy Nations.”). to the principles of the Charter of the United L 94 values. and fundamental state’s aspirations the new \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 4 16-APR-04 9:30 completely developed, are called “Basic Laws.” completely developed, Court of Israel has interpreted three of these basic laws as giving interpreted three of these basic Court of Israel has regular laws, thus to overturn contradictory the Court the right of judicial review. granting it the power v. Minister of Defence, 53(5) P.D. 241. and its implications, see of Basic Law: Human Dignity and Liberty, Decisions stead of creating a binding legal source in a comprehensive consti- in a comprehensive legal source creating a binding stead of legislative make special undertook to the legislature tution, capacity, institutional of governmental for matters arrangements president ministers, legislature, cabinet the powers of the such as and judiciary. 18178_nlr_48-1-2 Sheet No. 50 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 50 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 51 Side A 04/27/2004 12:08:32 95 . 5 . L. EV SR . L. R , 24 I SR and cross-examina- 8 NTRODUCTION TO THE LAWS OF I Second, certain limited clas- During the Mandate period 10 11 Criminal Procedure and Evidence at 267-268. , Criminal Procedure, in In criminal as well as civil trials there are no trials there are as well as civil In criminal 7 such as proactive questioning of witnesses by such as proactive 9 note 7 ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI reception of British legal principles under Israeli reception of British supra note 1, at 267; Eliahu Harnon, The Criminal Procedure Law [Consolidated Version], § 1982, 36 15(a), en bloc Mann, Kenneth Mann, See See See , supra For the foregoing reasons, criminal procedural law in Israel law in criminal procedural foregoing reasons, For the The 9. 7. 8.the preliminary part of the penal law states: “One shall Section 34 (Kaf-Bet) of . 592 (1990). 10. This right arises from Section 22 of the Chambers of Advocates, 1961, 15 L.S.I 11. EV SRAEL M K (1996). L.S.I 35 (1981-82). R 74 (1960-61), which states “a person who grants a power-of-attorney to an attorney is 74 (1960-61), which states “a person who grants a power-of-attorney to an attorney entitled to be represented by that attorney before all organs of the State . . . .” law has meant that the right to representation in criminal trials was law has meant that the right to representation right.a legislative right, not a constitutional are two princi- There ple legislative rules. case has the First, a defendant in a criminal counsel of his or her choice at right to be represented by private any stage of a criminal proceeding. I 2003] with some in content, was British first years of statehood during the exceptions. important \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 5 16-APR-04 9:30 judges. juries. facts. findings of judges issue reasoned professional Instead, an adver- is, however, criminal procedure system of The legislated systems. to the British and American sary system, similar The legal beyond reason- innocence has been adopted; proof presumption of for criminal convictions; able doubt is required not bear criminal responsibility for an offence unless it is proven beyond a reasonable not bear criminal responsibility for an offence part was published in 30 I doubt.” An English version of the preliminary ses of at trial by a defendants have the right to be represented “state appointed” defense counsel. attached only to crimes for which the right to appointed counsel the death penalty could be imposed. this right In the mid-sixties, appointment of counsel for was broadened to include mandatory bearing a potential maximum defendants charged with crimes tion of witnesses holds a central place in the trial process. Although holds a central place in the trial tion of witnesses fundamental legis- have remained part of the these characteristics has been equally criminal procedure, the system lated structure of the grain of in courts, some of which go against shaped by practices the adversary system, C Y 18178_nlr_48-1-2 Sheet No. 51 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 51 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 51 Side B 04/27/2004 12:08:32 M K C Y Yitzhak [Vol. 48 discretion Criminal see See to do so) with regard to power There was no legislated There 12 Courts Ordinance, 1924, Laws of Palestine (1818- Courts Ordinance, 1924, See Criminal Procedure (Amendment No. 15) Law, 1981, 35 Criminal Procedure (Amendment No. 15) See NEW YORK LAW SCHOOL LAW REVIEW At the beginning of the 1990’s, it was evident that many defen- of the 1990’s, it was evident that At the beginning to appoint counsel (as opposed to a discretionary to appoint counsel (as opposed to a discretionary 12. Poor Pris- law controlling the right to counsel was the The earliest mandatory Procedure (Amendment No. 9) Law, 1988, 1261 S.H. 184 (1987-88). For a comprehen- sive survey of the historical development of the right to counsel in Israel, Sapir, The Rise (and Fall) of Public Defense in Israel: Legitimation, Institutionalization, and Deradicalization (unpublished S.J.D. dissertation, Harvard University) (on file with author). oners Defense Ordinance, 1926. oners Defense Ordinance, a certain defendant Court of Criminal Assize to certify that to the President of the a potential penalty This applied primarily to offenses carrying ought to have legal aid. of death. Like most other British legislation, the Poor Prisoners Defense Ordinance of the state of Israel.remained in force after the establishment It was only abolished Law, 1965, 19 L.S.I 158 (1965-66), which with the enactment of the Criminal Procedure broadened the right to counsel substantially. a The amendment of 1965 established duty 1925), Vol. I, 199, Official Gazette, August 1, 1926).1925), Vol. I, 199, Official granted This Ordinance three categories of defendants: defendants who are charged with an offence punishable three categories of defendants: defendants under sixteen years of age who are by imprisonment for ten years or more; defendants Court; and dumb, blind, or deaf defen- brought before a court other than a Juvenile dants. The mandatory appointment applied to any such defendant who was unrepre- sented, regardless of indigence. to In addition, the new statute granted full discretion destitute defendants and to defendants who any court to appoint a defense attorney to are suspected of being mentally ill. ap- The next expansion of the right to counsel and Modes of Treatment), 1971, 25 L.S.I. peared in the Youth Law (Trial, Punishment, 128 (1970-71). This law, which established the Juvenile Court system, also established defense counsel to a minor, if it thinks that that the court “is authorized to appoint a the benefit of the minor requires it.” The next expansion of the right to counsel came to the law of criminal procedure.in 1974, in the context of an amendment Criminal 29 L.S.I 8 (1973-74) was the first piece of Procedure (Amendment No. 4) Law, 1974, in pre-trial and bail proceedings.legislation to grant power to appoint counsel 1981, In the law of criminal procedure, the right to in the context of another amendment to and defendants in special pretrial proceed- counsel was expanded to include suspects and defendants “suspected of being ings for the preservation of testimonial evidence, intellectually deficient.” L.S.I 224 (1981-82). In 1988, the law of criminal procedure was amended once again, counsel in bail hearings in which the and judges were required to appoint defense prosecution moves to deny bail for the entire duration of a criminal trial. 96 years or more. of ten prison sentence \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 6 16-APR-04 9:30 right to appointed counsel for most defendants charged with lesser charged for most defendants appointed counsel right to or postrial bail hearings at pretrial defendants appearing crimes or proceedings.appellate a dis- invested with judges were However, appoint counsel. authority to cretionary judges Over the years, their use of this power.moderately increased As a result, some sus- counsel in were represented by state-funded pects and defendants there was no mandatory appointment. cases for which in Israel. in criminal trials dants were still unrepresented The per- 18178_nlr_48-1-2 Sheet No. 51 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 51 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 52 Side A 04/27/2004 12:08:32 97 The study revealed that Israel was at The study revealed that Israel was 15 13 The Ministry commissioned empirical re- The Ministry commissioned ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI 14 . Supreme Court Judge David The chairman of the commission was B.System in Israel The Creation of a Public Defense See Report of the Commission for Investigating the Issue of Legal Aid in Criminal Pro- See Report of the Commission for Investigating See id (Jerusalem 1985) (Hebrew) (“The Bechor Report”). (Jerusalem 1985) (Hebrew) (“The Bechor The precursors of reform emerged in the early 1980’s.The precursors of reform emerged Follow- 15. Eliahu Harnon, Legal Aid in Criminal Proceedings – Theory and Practice in 13. 14. M K ceedings Bechor and it is known as “The Bechor Commission.” Comparative Perspective (The Harry Sacher Institute for Legislative Research and Com- parative Law, Jerusalem, 1983) (Hebrew). ing several critical media reports on the low quality of legal aid at- ing several critical media reports appointed a Study Commission to torneys, the Minister of Justice in criminal cases and to make examine the problem of legal aid recommendations. 2003] with any was not known not represented of defendants centage ex- kept and no research no data was certainty because degree of the topic.isted on to fund only required the state was At that time, carried a a crime that charged with counsel for persons defense used or where judges ten years or more, prison term of maximum power of appointment.their discretionary Because the vast major- potential prison cases brought to court bore ity of criminal indigent defen- than ten years, the main way that sentences of less counsel was through judicial appointment.dants could get The power to provide judges were hesitant to use this problem was that defendants ap- the large numbers of indigent representation for without attorneys.pearing in court This was the result of three fac- without counsel, in the courts of hearing cases tors: a tradition counsel, in the court’s budget for appointed inadequate funding to take appoint- of competent counsel willing and a relative scarcity very low fee schedule set for remu- ments from the court within the nerating appointed counsel. \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 7 16-APR-04 9:30 search on legal aid in Israel, requesting information on the nature search on legal aid in Israel, requesting America.of legal aid in Europe and North empirical study The dissatisfied with the competence showed that judges in Israel were of court-appointed attorneys. the bottom of the list of countries surveyed for per-capita expendi- the bottom of the list of countries The Commission also in- ture on legal aid for criminal defendants. likelihood of getting appointed dicated dissatisfaction with the low C Y 18178_nlr_48-1-2 Sheet No. 52 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 52 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 52 Side B 04/27/2004 12:08:32 M K C Y in AW ?, L . 718 EV [Vol. 48 SRAELI I . L.R SR TALIAN AND Many in the legal ,I 17 A Constitutional Revolution UROPEAN The Constitutionalization of the Israeli E In addition, the Commission In addition, the 16 SSAYS ON United Mizrachi Bank plc v. Migdal Cooperative -E Ruth Gavison, which advocates have used to press the which advocates have used to press note 14, at 15. 19 Aharon Barak, But see OMMUNE supra C US See also I Report on Criminal Defendents and their Representation by Lawyers Report on Criminal Defendents and their Representation NEW YORK LAW SCHOOL LAW REVIEW This Basic law sought to provide better protection This Basic law sought to provide . 3 (1997). note 6. EV UROPEAN 18 E EW . L. R N SR Despite opposition from the Israeli Bar Association, the Com- Association, the the Israeli Bar opposition from Despite The legislature also contributed to the expansion of the right The legislature also contributed , 31 I 19. formulation of substantive due process became a rich source for judicial This 16. Bechor Report, The 17. Mann, Kenneth 18. S.H. 150 (Hebrew). The English version appears in 33 I 1391 OWARDS A Legal System as a Result of the Basic Laws and its Effect on Procedural and Substantive Criminal Law village case, supra (1999). as a source for judicial review of legisla- review of administrative action and eventually, tion. was The enactment of this Basic Law and Basic Law: Freedom of Occupation considered by many, including Supreme Court Chief Justice Aharon Barak, as a “consti- tutional revolution”. See his opinion in T (Jerusalem Institute for the Research of Israel, 1983) (Hebrew). (Jerusalem Institute for the Research of Israel, 98 mandatory the rule of not fall within if the case did counsel appointment. public de- of a national establishment recommended the mission programs public defender lines of the along the fender system, the United States. found widely in \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 8 16-APR-04 9:30 to the individual from arbitrary and unreasonable actions by the to the individual from arbitrary state. cer- It contained a declaration of principle and enumerated at protecting due process in tain rights that were aimed directly criminal proceedings.that individuals The Basic Law stipulated unless such actions bore “a could not be detained or imprisoned to a justified goal.”reasonable and proportionate relationship This legal norms and new applications Basic Law served as a source for of procedural due process, recommended expansion of the population of defendants entitled of the population of defendants recommended expansion trials. defense attorneys in criminal to publicly funded Shortly after of Criminal Law published its report, the Institute the Commission the actual rate of published empirical data on at Tel-Aviv University in criminal trials in Israel. non-representation courts to expand the right to counsel. community who did not practice criminal law refused to believe did not practice criminal law community who without coun- the criminal defendants were tried that over half of sel. and emphasized the serious The report gained public attention trials. lack of representation in criminal effects flowing from Law: Human Dignity and Lib- to representation by enacting “Basic erty” in 1992. 18178_nlr_48-1-2 Sheet No. 52 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 52 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 53 Side A 04/27/2004 12:08:32 . 99 SR . 3 (1997); EV . L. R abridged in 31 I SR , . 373 (1992) EV 589 , 31 I Role of Courts in Rifted De- . a trial court rejected a trial court . L. R 20 SR Democracy and the New Constitution- 49(1) P.D , 26 I , . 678 (1999). EV . L. R note 19. SR The Israeli Gideon? . 259 (1999). supra , 33 I EV ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI . L. R The Constitutionalization of the Israeli Legal System as a Result of the The Constitutionalization of the Israeli Legal System . 219 (1999); Michael Mandel, . Barak, SR EV . Cf The Impact of the Basic Law: Human Dignity and Liberty on the Law of The Impact of the Basic Law: Human Dignity , 33 I . L. R SR 21 H.C. 2316/95, Ganimat v. State of Israel , 33 I Aharon Barak, 754 (1997) . See A final factor was a law reform initiative that originated in the a law reform initiative that originated A final factor was The Supreme Court sent a message to the larger legal commu- a message to the Court sent The Supreme See EV 21. the early Nineties, in another important case, this one involving a defen- In 20. 134/89, Abargil v. State of Israel, 44(4) P.D. 203 (Hebrew). For a critical C.A. M K Eliahu Harnon, Criminal Procedure and Evidence dant’s detention before conviction, the Supreme Court declared that it was setting out dant’s detention before conviction, the Supreme of defendant’s rights in criminal cases. as one of its agendas an enhanced recognition relied on the Basic Law: Human Dignity and Here the President of the Supreme Court the authority of the state to detain defen- Liberty as the source of its decision limiting dants during their criminal trials. The President of the Supreme Court said that sus- be entitled to more “due process” than pects and defendants in criminal cases would criminal justice system.they had enjoyed up until that time in the was This declaration of road marker to a new era in which crimi- received in the legal community as a kind nal law and procedure would come under greater scrutiny. Many expected that there would be a “constitutionalization” of criminal procedure. This declaration of intent ser- seems to have had an impact on the readiness of legislators and government civil vants to increase funding of legal aid in order to establish the public defender organiza- tion. L. R view of that decision see: Note, Basic Laws and its Effect on Procedural and Substative Criminal Law Basic Laws and its Effect on Procedural and Substative alisation in Israel 517 (A. Gambaro & A.M. Rabello eds., 1999); Ruth Gavison, 517 (A. Gambaro & A.M. Rabello eds., 1999); mocracies Faculty of Law at Tel-Aviv University. In 1990, the Faculty estab- at Tel-Aviv University. In 1990, Faculty of Law defense and program to train attorneys in criminal lished a clinical provide legal aid to indigent defendants. context of the In the many defendants who would clinic, staff and students represented otherwise not have had counsel. research The students conducted paying special attention to the on the needs of indigent defendants, 2003] ap- a landmark criminal of legal aid in the inadequacy nity about late 1980’s.peal in the State v. Abargil, In \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 9 16-APR-04 9:30 appointment of counsel for a defendant in a burglary prosecution for a defendant of counsel appointment pled not guilty. defendant had after the When the government conduct any cross- the defendant refused to presented its witnesses, examination. Court criticized the lower On appeal, the Supreme understood the not to appoint counsel, but also court’s decision legal services as a reflection of the lack of adequate court’s decision defendants.for indigent criminal its concluding remarks, two of In criminal legal aid for the establishment of a new the judges called system. C Y 18178_nlr_48-1-2 Sheet No. 53 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 53 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 53 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 The law passed by the 22 NEW YORK LAW SCHOOL LAW REVIEW The proposed law envisioned an independent government of- envisioned an independent government The proposed law the Knesset passed compre- After a lengthy legislative process, The first local office of the OPD opened in Tel-Aviv in 1996, The first local office of the OPD 22. The Public Defender Law, 1995, 1551 S.H. 8. The new law expanded the right of public defense to indigent defendants charged with crimes carrying a maximum prison term of five years or more. Art. 18 of the law also extended the right of a publicly funded defense counsel to indigent detainees at bail hearings. 100 in more representation to provide of how institutionally question reform viewed the law staff of the clinic courts. The the criminal office. public defender a prototype of a in the clinic as program A defender a public the efforts to establish point in critical turning drafted in the clinic faculty and students when the system occurred public defender designed to establish a nationwide the text of a law system. to the chief public defender in a position parallel fice, with a chief contracted attor- and in-house as well as privately state prosecutor, cases in which the provide legal aid in all criminal neys, who would would be eligible.suspects and defendants Special emphasis was both train attor- of supervisory staff that would put on the creation the quality of defense services provided.neys and monitor The pro- to appointed for an expansion of the right posal also called counsel. the OPD and expanding hensive legislation in 1995, establishing cases. the right to counsel in criminal \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 10 16-APR-04 9:30 Knesset, based on the draft proposed by the Tel Aviv law faculty Knesset, based on the draft proposed years for the establishment of legal clinic, set a timetable of three the OPD throughout the country. OPD with the The law vested the assistance of counsel for all sus- responsibility of ensuring effective entitled to legal aid. pects and defendants who were two administrators.with a staff of three attorneys and Private attor- during the first year, they han- neys were chosen by interview and mandatory and discretionary dled almost all of the cases, including appointments of counsel. in its first As the OPD achieved success the staff and budget was in- district office, eligibility was expanded, became professionalized.creased, and training and supervision By had been established.the year 2000, the entire system There were all criminal courts in Israel. five district offices of the OPD covering 75 staff attorneys and 120 adminis- The in-house staff had grown to 18178_nlr_48-1-2 Sheet No. 53 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 53 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 54 Side A 04/27/2004 12:08:32 101 ami- Public See The level of practice 529, 553-54 (Hebrew). . 25 24 ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI recognizing for the first time the very idea of amicus the first time the very idea of recognizing for 23 , With the establishment of the OPD, there was a significant ex- of the OPD, there was a With the establishment 23. 7929/96, Kusli v. State of Israel 53(1) P.D R.T. 24. issues that were discussed in this legislative preparation period had a Several 25. Shortly after the establishment of the OPD the legislature extended the right M K Defender Regulations (Representation of Additional Defendants), 1998, 5917 K.T. 1096 (Hebrew). substantial impact on the institutional integrity of the office of the public defender, and substantial impact on the institutional integrity legal counsel without interference from in turn, on the ability of the office to provide the government or its agencies. be The first was whether its chief personnel would in parallel positions in the state prosecutor’s given civil service ranks equivalent to those office. Eventually the decision was taken to grant the chief public defender the same rank as the chief state prosecutor. of The second was the question of the relationship general.the chief public defender to the attorney and The attorney general supervises by the chief state prosecutor, as well as all has the power to override decisions made staffs in respect all questions of legal rights executive decisions by ministers and their of government.and obligations arising in the administration to If this principle were then the attorney general, who ultimately di- be applied to the chief public defender, the public defender.rects the public prosecution, would also direct This arrangement of the public defender.was found be unsuitable for the mission It was thus decided independent in making decisions about how that the public defender would be entirely to handle its cases. The attorney general would not be able to override a decision made by public defender as to how to defend clients. be The attorney general would also not able to intervene in the public defender’s decision to represent a person who was enti- tled to representation under the public defender law. to a public defender to any minor who is arrested or indicted for a crime. pansion of the class of defendants who were provided attorneys, class of defendants who were provided pansion of the of legal representation improved.and the quality In the past, sus- by 2000, almost were represented only rarely; pects in bail hearings defendants The percentage of unrepresented all were represented. went down significantly as well.in criminal trials In the past, most not represented by counsel; now, minors in juvenile court were defenders. most were represented by public 2003] trators.over ten aid had grown criminal legal expenditure for State contract attorneys were on 700 private bar approximately fold and the OPD a of Justice called The Minister representation. to provide “legal empire.” of Israel complained the Bar Association Activists in of crimi- the entire market was taking over Public Defender that the the status of Supreme Court granted the OPD nal defense. The cus curiae \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 11 16-APR-04 9:30 and competence of attorneys went up sharply due primarily to the and competence of attorneys went supervision by staff attorneys.attorney selection policy and the This standing in Israeli law, while giving the OPD an important repre- law, while giving the OPD an standing in Israeli the Supreme Court. sentative role before C Y 18178_nlr_48-1-2 Sheet No. 54 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 54 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 54 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 Human Rights and Na- The Israeli Supreme Court Yitzhak Zamir, 26 See Research: The Scope of Representation of Defendants in Criminal . 375 (1989). 3 (2002) (Hebrew). EV NEW YORK LAW SCHOOL LAW REVIEW . L. R ANEGOR SR S A , 23 I Kenneth Mann, , 58 H See The OPD currently faces severe budgetary pressures, which The OPD currently faces severe 27 As the activities of the office of the OPD gained momentum, of the OPD of the office As the activities support had of professional and political Different strands Success, however, is not the full story. Public De- Although the 27. C.A. 2469/00, Perets v. State of Israel Dinim Mehozi, 32(9) 898 (Hebrew) 26. tional Security (denying a request for permission to appeal). Proceedings 102 had to a legal aid case attorney handling time that any was the first supervi- consult with his or her activities, reports on submit written cases. certain steps in to take get express permission sors, and aid, two to system of legal Under the old grew rapidly. the caseload each year. By the defendants were represented three thousand defender offices OPD’s operation, after district third year of the Jerusalem, members were opened in Tel-Aviv, with full time staff represented and Beersheva, public defenders Nazareth, Haifa, ten thousand sus- defendants in criminal cases and twenty thousand annually. pects in bail hearings and to bring rectify a widely recognized problem joined forces to The key to reform in indigent criminal defense. about significant this transformation was twofold. organiza- First, an independent committed ideologically to the tion was created, staffed by attorneys to representation.notion of due process and the right Second, the attorneys were established and salaries, fees, and status of the staff guaranteed by law. of lonely What had been a lose amalgamation the pre-OPD period had become, and under-motivated attorneys in a group of highly interacting at- in the new organizational setting, support and moral energy in their torneys who found professional defense. commitment to the idea of public changes, in 2004, four out of ten fender Law brought significant unrepresented in some of the defendants in criminal cases remain non-metropolitan lower trial courts. \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 12 16-APR-04 9:30 have led to the reduction of fees for public defenders.have led to the reduction of fees There have albeit unsuccessful, to scale back also been several legislative efforts, to representation. the number of defendants entitled still denies appeals lodged by indigent defendants whose main still denies appeals lodged by is lack of representation at claim for overturning a conviction trial. 18178_nlr_48-1-2 Sheet No. 54 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 54 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 55 Side A 04/27/2004 12:08:32 103 . 144 (1978). For a TS ALESTINIANS . R P UM H . 37 (1998). The entry permits generally TS OURTS 29 EARBOOK ON . R C . Y UM Legal system in Judea and Samaria: a review of the Legal system in Judea and Samaria: a review of International Legal Status of the West Bank and SR H , 8 I EPRESENTATION OF SRAELI IN R I EARBOOK ON Moshe Drori, UNDED . Y ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI See Yoram Dinstein, SR - F see , 28 I TATE Palestinian residents of the West Bank and Gaza are not of the West Bank and Gaza Palestinian residents II. S 28 Thousands of Palestinians residing in the West Bank and Gaza West Bank and residing in the of Palestinians Thousands set of authorities administer a complex Israeli law enforcement A. Role of the OPD Palestinians and the Prosecutions of Criminal 29. During the present (second) Intifada, entry permits occasionally are cut off 28. issue of legal status of the West Bank and Gaza strip is very complicated The M K more recent review, completely. to ten to twenty thousand workers whose At other times, permits are issued security backgrounds are adequate for issuance of an entry permit. Gaza Strip – 1998 and unclear. The existing law is a combination of the Pre-1967 Jordanian law, Israeli and unclear. The existing law is a combination Times and ordinances of the military Regulations for Protection During Emergency commander of the area. previous decade with a glance at the future 2003] \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 13 16-APR-04 9:30 are prosecuted each year in Israeli courts.are prosecuted The charges leveled gambit of crimi- in Israeli courts run the entire against Palestinians burglary, assault, among others, murder, nal offenses, including drug and sex offenses. offenses relating to illegal pres- Regulatory are the two main offenses against state security ence in Israel and in the Oc- that relate to Palestinian residents categories of offenses cupied Territories. their presence in Palestinians and restrict regulations to identify Israel. allowed to enter Israel unless they fall within a category of persons allowed to enter Israel unless they for whom entry permits are issued. forbid the person from staying overnight in Israel.forbid the person from staying overnight Many Palestini- regulatory offenses, such as ans violate these provisions and commit and illegal presence in Israel. the use of false identity documents stem from simple disregard of Most of the widespread violations motivations, not security offenses. regulations or from economic permits attempt to enter Israel Many Palestinians who do not hold to work as laborers in Israeli for days or weeks at a time, in order businesses. Such regulatory violations are widespread. When dis- simply returned to the Territo- covered, most of these persons are ries.and some may Repeat violators are arrested and charged, to one year.receive a prison sentence for up propor- A significant by the OPD are Palestinians tion of the defendants represented charged with regulatory violations. C Y 18178_nlr_48-1-2 Sheet No. 55 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 55 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 55 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 NEW YORK LAW SCHOOL LAW REVIEW Crime against state security is the other type of offense that type of offense is the other state security Crime against Palestinian suspects and de- Before the creation of the OPD, 104 the OPD. represented by Palestinians to relates predominantly civil- attacks against motivated include ideologically These offenses at a pass- throwing rocks from juveniles soldiers, ranging ians and crowded bombings in carrying out suicide to terrorists ing vehicle, restaurants. Israeli citizens have coped with Israeli institutions and state. since the establishment of the security offenses Offenses acting alone and are committed by individuals against state security struc- supported by complex organizational by groups of persons tures. of weapons, including rocks Perpetrators use a wide variety rifles, bombs, and Molotov cocktails, handguns, of different sizes, kidnap, and kill individuals.rockets to assault, Human targets are sometimes unarmed civilians.sometimes soldiers, Property may by arson. for example, in cases of houses destroyed also be targeted, spontaneously, are committed by children acting Security offenses who are recruited, trained, video- as well as by suicide bombers mission, and delivered to a site taped in a declaration of their through a network of cell members. crimes other than state security fendants who were charged with at pretrial bail hearings offenses would generally be unrepresented and at trial.not result from a The absence of representation did it reflected the general rule in special rule applied to Palestinians; indigent persons were not repre- the criminal courts that most sented. counsel for un- As indicated, judges tended not to appoint there was no mandatory rule of represented defendants when representation. against In the serious cases, including offenses would often represent de- state security, court-appointed attorneys fendants. cases, particu- Some of the attorneys who handled these identified with the political left. larly the Jewish attorneys, were the political identification of attor- Because of the low fees paid and type of political ideology, many neys in these cases with a certain involved.defense attorneys refused to be there were a Although attorneys, the level of rep- handful of highly skilled and committed resentation for Palestinian defendants charged with serious crimes was not satisfactory. A dominant theme during this period was ab- sence of representation in the less serious cases and substandard representation in the more serious cases. The available attorney \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 14 16-APR-04 9:30 18178_nlr_48-1-2 Sheet No. 55 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 55 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 56 Side A 04/27/2004 12:08:32 105 30 ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI The chief administrators of the OPD believed that it was sym- The chief administrators of the The leadership of the OPD believed it was important to have of the OPD believed it was important The leadership 30. At present, seven years after the creation of the OPD, approximately 15% of M K the staff attorneys are Arabs, and 30% of the contract attorneys are Arabs. Arabs consti- tute approximately 18% of the population of Israel, excluding the Occupied Territories. bolically important to have Arab attorneys in large proportion rep- bolically important to have Arab criminal courts.resenting Arab defendants in the Because very few it was clear that bringing Jewish attorneys speak Arabic fluently, increase the standard of legal Arab attorneys onto the staff could services. also be as- Under OPD policy, Jewish attorneys would and Arab attorneys would be signed to represent Arab defendants 2003] small. Jews, was very Arabs and pool, including perhaps It included of the thousand members of the twenty attorneys out two-dozen bar. this, not much of OPD would change established, the Once of- Palestinians or security to deal with it was established because right to to enlarge the because it sought particular, but fenses in throughout raise the quality of representation representation and system.the criminal justice Palestinian defendants Cases involving reforms that in the wave of basic criminal justice were “caught-up” throughout the to institute and institutionalize the OPD sought court system. to a multi- staff as a statement of its commitment Arab attorneys on and affirmative action in hiring.cultural environment Arab citizens most governmen- underrepresented on the staffs of are significantly of the Ministry including the various branches tal agencies in Israel, underlying social problems in Is- of Justice. This situation reflects raised by civil service employment raeli society, including barriers distrust of government in the Is- processes to Arab applicants and raeli Arab community. barrier The former constitutes an external subjective resistance to identifying to entry, the latter an internal with the authority of the Israeli government. of the The leadership stand out as an exception to the OPD believed it was important to in agencies funded by the gov- general rule of under-representation ernment. for The OPD had a clear advantage in pursuing this goal; to an organization dedicated to potential Arab recruits, applying by officers of the state removed helping individuals prosecuted taking a civil service job. much of the stigma attached to \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 15 16-APR-04 9:30 C Y 18178_nlr_48-1-2 Sheet No. 56 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 56 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 56 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 Trying Terrorists – Justifi- . 1, 1-97 (2002). EV against State Security . L. R OMP NEW YORK LAW SCHOOL LAW REVIEW & C L ’ NT . I B. Prosecutions for Offenses Civilian and Military A security suspect taken into custody by the army for an A security suspect taken into custody ND 31 The manner in which Israeli police and military authorities re- Israeli police and military The manner in which , 13 I 31. For a discussion of the military courts in the occupied territories, and their spond to security offenses varies widely.spond to security Palestinians taken into cus- an offense against state security tody on suspicion of committing institutional legal processes. are subject to one of two different the nature of the legal process is One is a military system where military authorities in the Occu- determined by laws issued by the pied Territories. the nature of The other is a civilian system where by the general state law applicable the legal process is determined special provisions for security of- to all criminal offenses, with fenses. cation for Differing Trial Rules: The Balance Between Security Considerations and Human Rights specific rules of jurisdiction and procedure, see Emanuel Gross, 106 defendants. to represent Jewish assigned policy, In spite of this to assigning Arab attorneys pull toward there was a natural however, the com- unclear whether to Jews. It was Jewish attorneys Arabs and would relationship in the attorney-client of Arab and Jew bination adequate or frustrate in the attorney client confidence undermine barriers. of language and cultural representation because A bal- to multiculturalism between the commitment ance had to be struck of the client. and the best interests \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 16 16-APR-04 9:30 offense allegedly committed in the Occupied Territories is most offense allegedly committed in court.likely to be brought before a military however, be He may, a transfer to civilian police put into the civilian system, requiring custody. offense A suspect charged with committing a security the State of Israel is most likely to within the pre-1967 boundaries of be tried in the regular criminal courts. courts, most In the military the legal procedures em- of which sit in the Occupied Territories, in the civilian courts. Judges pre- ployed are similar to those used and defendants have the side over an adversary system. Suspects including counsel appointed by right to be represented by counsel, the court. and procedural There is a presumption of innocence evidence. rules limit the admissibility of hearsay 18178_nlr_48-1-2 Sheet No. 56 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 56 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 57 Side A 04/27/2004 12:08:32 107 ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI There are important differences, however. important differences, There are the For instance, in military and civilian systems of Another difference between the these courts.We have observed proceedings in military While M K 2003] peri- custody for extended can be held in system suspects military suspect state to bring the compel the procedural rules ods before judicial officer.before a the security suspect military rules, Under judicial re- and periodic following initial held in custody may be a full trial.views, but without without trial can last for Detention for years.months and sometimes distinctive characteristic Another of administrative system is the frequent use of the military judicial detention. statute in the civilian legal sys- While there is a separate Israeli citizens, it the administrative detention of tem providing for is used very infrequently. detention is used Military administrative situations.in two distinctive is when intelligence informa- The first commit a serious the detained person is likely to tion indicates that in the future.security offense detention is used as a preven- Here, that would pro- as there is no completed offense tive measure only, vide the basis for a trial. against a The second is when the evidence at trial without exposing an security suspect cannot be produced without creating a high risk that important intelligence source or an informant will be murdered. suspects who do not retain private justice is the form of legal aid for attorneys. suspects There is no public defender system for security military courts.or defendants charged in the military de- The only for soldiers charged with fender system provides legal defense military offenses. are repre- Many security suspects and defendants by family members or by organiza- sented by private attorneys, paid factions.tions connected to various Palestinian some of Although unrepresented, only in a small the suspects and defendants are judge appoint a specific private number of cases does the military counsel. bar attorney to serve as defense and astute, the defense judges and prosecutors appear well-trained for the task.attorneys seem inadequately trained attor- Many of the and defendants in military neys representing security suspects courts are Palestinians who have studied law in neighboring Arab countries, making them generally less familiar with important nu- ances of Israeli law. Some are Arab or Jewish attorneys trained in Israel. With several notable exceptions, the level of defense legal \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 17 16-APR-04 9:30 C Y 18178_nlr_48-1-2 Sheet No. 57 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 57 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 57 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 The four Pales- 32 with Terrorist Offenses NEW YORK LAW SCHOOL LAW REVIEW C.C. (Jerusalem) 5071/02, State of Israel v. Kassem (unpublished). See C. Public Defenders of Palestinians Charged Representation by Since its creation in 1996, the OPD has represented Palestini- in 1996, the OPD has represented Since its creation four residents of Silwan, a In 2002, the OPD represented The members of the Silwan Hamas cell were indicted in the 32. 108 is not high.in these courts practice been no there has To date, security of legal aid for the weak nature attempt to rectify organized courts. in the military suspects courts working in these Attorneys their own distracted by and are often underpaid are severely Occupied Territories. of survival in the problems be inac- They can with travel in complicated problems associated cessible due to the access to military or with gaining physical the Occupied Territories court compounds. representing Palestinian defen- The problem of by the legisla- courts, which was not addressed dants in the military impediment to the OPD, remains a serious ture in creating in that forum. providing due process ans charged with terrorist crimes. have Some of these defendants in suicide bombings that resulted been charged with participation in massive civilian casualties. gone to trial; Some of these cases have others have ended in plea agreements. the public de- In our view, provided effective legal defense. fenders handling these cases have managed to establish relations The public defenders have generally with security offenses, and of trust with Palestinian clients charged in providing high quality legal have invested very substantial efforts representation. approach. The following cases illustrate the OPD’s of Jerusalem. neighborhood in the eastern part \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 18 16-APR-04 9:30 tinians were charged with murdering a large number of Israeli civil- tinians were charged with murdering ians in a string of attacks. bombings in a The attacks included the of Jerusalem, in a nightclub in cafeteria at the Hebrew University in a cafe in the center of Jerusa- the town of Rishon Letzion, and responsibility for all of the attacks lem. The four suspects claimed attributed to them.confessions and They each gave full written details of each attack.videotaped explanations of the At the bail in open court about their actions, hearings, they spoke with pride not expressing any remorse for the loss of civilian lives. District Court of Jerusalem for a wide range of offenses, including 18178_nlr_48-1-2 Sheet No. 57 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 57 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 58 Side A 04/27/2004 12:08:32 109 a Palestinian from the town of 33 ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI C.C. (Tel Aviv) 1121/01, State of Israel v. Naddi (unpublished). See It is noteworthy that the OPD was able to appoint as a depu- that the OPD was able to appoint It is noteworthy involved the bombing of the Another case handled by OPD The key question in this case was whether the defendant knew 33. M K 2003] counts of murder.twenty-six in Jerusalem assigned The OPD office with exten- attorney prominent Palestinian to Abed Assli, a the case courts of in the military Palestinians in defending sive experience the Palestinian community within Bank. Assli’s reputation the West military charged in the for defendants advocate as an effective a strong attorney- Bank enabled him to foster courts of the West with the defendants.client relationship Although the State of no difficulty in ac- defense, the defendants had Israel funded the of this public defender.cepting the representation The indictment agreement. resulted in a plea had a track record a Palestinian attorney who tized public defender, courts.Palestinian defendants in Israeli of representing It is likely not have been a Jewish or Israeli attorney would that in this case render effective rapport with the defendants or able to establish assistance of counsel. of flexibility in This case highlights the value of the system of legal aid appointing attorneys that is characteristic Defender Law.institutionalized in the Israeli Public In a time of this flexibility appears to be cru- intense social and political conflict, of public defense. cial for the effective administration Aviv in June, 2001.Dolphinarium discoteque in Tel The defendant in the case was Mahmoud Nadi, \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 19 16-APR-04 9:30 Kalkilya, who transported the suicide bomber from the West Bank Kalkilya, who transported the suicide to Tel Aviv. Certain basic facts are undisputed. The defendant the West Bank town of Kalkilya. picked up the suicide bomber in an orthopedic belt packed with The suicide bomber was wearing explosives.and screws, de- The explosives were lined with nails of the explosion.signed to intensify the lethal effects The defen- to the seaside promenade in dant transported the suicide bomber were waiting to enter a dis- Tel Aviv, where hundreds of teenagers coteque. of the crowd The suicide bomber walked into the middle himself and twenty-one teenagers. and detonated the bomb, killing immigrants from the former So- Most of the deceased were Jewish viet Union. he was transporting a suicide bomber. The prosecution had stipu- C Y 18178_nlr_48-1-2 Sheet No. 58 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 58 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 58 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 . mens rea NEW YORK LAW SCHOOL LAW REVIEW The Chief Public Defender in the Tel Aviv District assigned two Defender in the Tel Aviv District The Chief Public upon circumstantial evidence The prosecution’s case was based Despite the vigorous defense presented at trial, the defendant 110 was that his passenger was initially unaware the defendant lated that bomber.a suicide the insisted that during prosecution also But, the gradually the defendant to Tel Aviv, trip from Kalkilya fifty-minute bomber. a suicide that he was transporting realized on this Relying as an the defendant prosecution charged the factual assumption, murder of twenty-one individuals.accomplice to the The defen- he was unaware of denied these charges, insisting dant adamantly intentions.the suicide bomber’s claimed that he believed that He worker. either a car thief or an illegal his passenger was Tzemel and Ronit to handle the case, Leah Jewish defense attorneys Robinson. fluently, is a well-known pri- Tzemel, who speaks Arabic rights, with exten- and advocate of Palestinian vate defense attorney both in the representing Palestinians defendants sive experience military and civilian courts. staff attorney Robinson, a permanent experience representing clients of the OPD, also has substantial charged with terrorist offenses. reported The two defense attorneys relationship with each other that they created an excellent working and with their client. mind during the ride to Tel Aviv, regarding the defendant’s state of self-incriminating statements and a series of confused and allegedly shortly after he was ar- that the defendant gave to investigators rested. bomber was The prosecutors pointed out that the suicide acted suspiciously during the trip. wearing a bulging shirt and had must have known that he was trans- They argued that the defendant should be deemed culpa- porting a suicide bomber, or alternatively, blindness.ble under the doctrine of willful the trial, the During evidence to demonstrate defense produced its own circumstantial the presence of the defen- the defendant’s innocence, including the defendant would not have dant’s daughter in the car, a risk a suicide bomber.taken had he known he was transporting The regarding the defendant’s defense also presented expert testimony abilities.psychological makeup and cognitive The defense attor- neys argued that this evidence tended to show that the defendant could not have had the requisite \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 20 16-APR-04 9:30 was convicted of aiding and abetting murder on all the numerous 18178_nlr_48-1-2 Sheet No. 58 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 58 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 59 Side A 04/27/2004 12:08:32 111 When 34 ARGHOUTI B ARWAN M ROSECUTION OF ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI P HE III. T C.C. (Tel Aviv) 1158/02, State of Israel v. Barghouti (unpublished). See In the Barghouti case, the OPD had to decide how to respond In the Barghouti case, the OPD The Dolphinarium case is different from the Silwan case in two case is different from the Silwan The Dolphinarium 34. M K to a court order to defend a client who refused representation. to a court order to defend a client arose for the OPD. This was the first time such a dilemma 2003] the indictment.counts of stage, the three-judge the sentencing At the time years, including term of fourteen a prison panel imposed the trial.detention during spent in panel the judges on the One of in prison. of twelve years a sentence recommended defense The and the sentence. the verdict has appealed important respects. attorneys were Jewish, and First, the defense OPD. a permanent staff member of one of them was Second, the went to trial.Dolphinarium case These differences exemplify the and case histories in attorney-client relationships wide variations Palestinian defen- the OPD’s involvement with that characterize dants. the importance of flexibility in The Silwan case illustrates and effective of counsel in achieving client loyalty the appointment assistance. exemplifies two additional vir- The Dolphinarium case in the context of public defense system tues of the institutionalized willingness of the state to pro- the Israeli-Palestinian conflict: the effective defense when the case so vide substantial resources for an attorneys, committed to requires; and the capacity of Jewish-Israeli their client’s needs, to create an professionalism and sensitive to with Palestinian defendants. effective attorney-client relationship \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 21 16-APR-04 9:30 brought to trial in the District Court of Tel-Aviv, Marwan Barghouti brought to trial in the District Court by counsel, but also denied the not only refused to be represented case against him.Court’s authority to conduct a criminal This case serious threat to the Israeli Public was important because it posed a professional and non-political Defender’s self-definition as a purely agency for legal services. Israeli court’s In order to understand the to look at two principles of handling of the matter, it is necessary Supreme Court announced long criminal procedure the Israeli before Barghouti was brought to trial. C Y 18178_nlr_48-1-2 Sheet No. 59 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 59 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 59 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 Id. A. Self Representation Right to NEW YORK LAW SCHOOL LAW REVIEW . Amiel conducted his own defense vigorously, mak- During his trial, Amiel was not represented by defense During his trial, 35 pro se . at 628. why he would not accept a court- When the Court asked Amiel The Court accepted Amiel’s request and allowed him to The Court accepted Amiel’s request Id 36 The Supreme Court of Israel addressed the question of the question Israel addressed Court of The Supreme When asked why he didn’t want a court-appointed attorney, he didn’t want a court-appointed When asked why Amiel retained counsel to file an appeal.Amiel retained counsel to file an appeal, his In the 35. C.A. 307/72, Amiel v. the State of Israel, 28(1) P.D. 28, 622 (Hebrew). 36. appointed attorney, he responded, “I don’t need an attorney. I don’t need an attorney for my defense. an attorney with my own money. If I need one, I will appoint I don’t want the court to appoint an attorney for me.” whether a defendant has a right to self-representation in a case in in a right to self-representation a defendant has whether counsel. of defense appointment law required mandatory which the District Court of been tried and convicted in the Zion Amiel had Jerusalem. 112 \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 22 16-APR-04 9:30 proceed counsel, in spite of the fact that he had been charged with a crime of the fact that he had been charged counsel, in spite years of imprison- penalty of more than ten carrying a maximum ment. appoint a private bar attorney The Court had attempted to were then will- of private defense attorneys who from the small pool pre-OPD era, but appointments during the ing to accept court representing himself. Amiel insisted on mess up the “court-appointed attorneys often Amiel explained, case.” ing objections, cross-examining witnesses, and putting defense wit- ing objections, cross-examining nesses on the stand. lengthy trial he Nevertheless, at the end of the was convicted. trial court erred in allowing Amiel defense attorney argued that the to conduct his own defense. that a Court The prosecution claimed upon a defendant who insists should not impose a defense attorney on representing himself at trial. denied. Amiel’s appeal was The trial court must appoint counsel Supreme Court ruled that the of representation, but held further when there is a mandatory rule a court-appointed attorney and that if a defendant does not want attorney actually appointed and refuses to cooperate with the may allow the defendant to re- funded by the state, the trial court present himself. The Court emphasized that the defendant at trial this was not a case where the had taken real steps to defend himself; of counsel and then failed to put defendant refused appointment on any defense whatsoever. 18178_nlr_48-1-2 Sheet No. 59 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 59 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 60 Side A 04/27/2004 12:08:32 38 113 a trial 37 ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI Law of Criminal Procedure [Consolidated Version], 1982, §117, 36 L.S.I. See Although Buskila’s alleged accomplice was present and repre- Although Buskila’s alleged accomplice Twenty-five years after Zion Amiel’s case was adjudicated and was adjudicated Amiel’s case years after Zion Twenty-five 37. C.A. 5628/97, State of Israel v. Public Defense Organization, Dinim Elyon 52, 38. B. and Cooperation without Client’s Consent of Counsel Appointment M K 35 (1981-82). 817(Hebrew). This procedure allows the court to hear the testimony of a witness This procedure allows the court itself, even if the defendant cannot before the beginning of the trial be located. at this special hearing, Buskila was sented by a private bar attorney not present. apparently The police explained that Buskila had unlikely to be located gone underground and was therefore quickly. testimony more credi- In order to give the foreign worker’s with the trial judge when the bility and potentially greater weight asked the court to appoint a full trial commenced, the prosecutor for Buskila.public defender as defense counsel The public de- special hearing and cross-examine fender was to participate in the the likely defense argu- the foreign worker, thereby undercutting should be disregarded or dis- ment at trial that the testimony examination and argument by counted due to the absence of cross defense counsel at the early hearing. 2003] \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 23 16-APR-04 9:30 five years before Bharghouti’s case came to trial, the Supreme to trial, the case came before Bharghouti’s five years court can whether a trial the question of Israel addressed Court of has not formally counsel to represent a client who compel defense consented to representation. case of Eyal Buskila, In the court had directed the OPD to represent a defendant whose where- the OPD to represent a defendant court had directed public defender making it impossible for the abouts were unknown, or carry out agreement to representation to obtain the defendant’s any pretrial consultation. to the writ of indictment, Bus- According against a for- in a violent crime committed kilia had participated Romania.eign worker from was alleged that he and an It taken his wallet. assaulted the foreign worker and accomplice had worker needed to was filed, the foreign At the time the indictment that he could subsequently return to Romania and it was unlikely Buskila and his co-defendant. travel back to Israel to testify against the “early hearing rule,” a Consequently, the prosecution invoked of testimonial evidence. special procedure for the preservation C Y 18178_nlr_48-1-2 Sheet No. 60 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 60 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 60 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 NEW YORK LAW SCHOOL LAW REVIEW In its initial decision, the trial court asked the OPD to provide trial court asked decision, the In its initial representation were The OPD’s arguments against compelled 114 type of of this assessing the implications for Buskila. After counsel to be of Tel Aviv asked Public Defender the District appointment, from the case.dismissed defender that a public position was Her to rep- to consent who was unavailable represent a client could not of the legal ser- unavailable to discuss the nature resentation and vice contemplated. that compelled representation The OPD stated is a client’s principle that an attorney violated the fundamental without the no such agency could be established agent, and that of the client.express consent OPD also argued that represen- The consulting the at the early hearing, without tation of the defendant his interests in version of the facts, might damage client about his to its clients. violating the OPD’s ethical loyalty the long run, thus under these cir- argued that representing Buskila The OPD further the prosecution’s serve primarily to strengthen cumstances would the evidentiary weight that evidence against him by enhancing of the prosecution’s primary would be attributed to the testimony witness. Buskila by the It appeared likely that representation of interests and increase his chances OPD would damage the client’s of being convicted. challenged For all the above reasons, the OPD asked to be discharged from the the appointment of counsel and case. by the Supreme Court.accepted by the trial court, but rejected In a of three Justices, the Supreme unanimous decision by a panel obligated to represent Buskila.Court decided that the OPD was Al- the difficulty of represent- though the Supreme Court recognized it concluded that the ing a client in these circumstances, was necessary for safeguarding the appointment of defense counsel the adversarial process of justice. defendant’s rights and facilitating these difficult circumstances, ac- Non-consensual representation in than no representation at all.cording to the Court, was better Dis- representation was not in the best counting the possibility that the proceeding, the Supreme Court interests of the defendant at this transformed the Public Defender into a servant of the public good. The OPD was expected to facilitate a trial procedure that was incon- be sistent with the defendant’s apparent interest and that could not conducted without the cooperation of the OPD. The OPD viewed \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 24 16-APR-04 9:30 18178_nlr_48-1-2 Sheet No. 60 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 60 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 61 Side A 04/27/2004 12:08:32 115 C. The Barghouti Trial ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI In the spring of 2002, the Israeli army launched a massive mili- 2002, the Israeli army launched In the spring of in Netanya, the Israeli army Immediately following the attack allegations that he served as Barghouti’s arrest was based on M K tary operation in the West Bank.tary operation in followed a series of The operation civilian population Palestinian militants against the lethal attacks by coastal city of an attack on a hotel in the of Israel, including while participating which thirty guests were killed Netanya, during Seder.in a traditional Passover bomber entered the din- A suicide to his body. hotel and detonated a bomb attached ing room of the tanks and armored personnel car- mobilized reserve units and sent by the Palestinian Author- riers into the cities and towns controlled ity in the West Bank. injured and Hundreds of Palestinians were were arrested in these incur- killed, and thousands of Palestinians sions. than that of None of the arrests were more significant figure regarded by many Palestin- Marwan Barghouti, a charismatic to Yassir Arafat.ian Arabs as a potential successor the time of his At General of the Fatah move- arrest, Barghouti served as the Secretary elected Palestinian legislature. ment and was a member of the responsible for a series of lethal the head of a miltary organization civilian targets.attacks against Israeli military and In August of filed a detailed indictment charg- 2002, the State Attorney’s Office and accessory in a series of ing Barghouti as both a principal murder, incitement to mur- crimes, including murder, attempted to commit a crime, member- der, facilitation of murder, conspiracy and participation in activities of a ship in a terrorist organization, terrorist organization. because the de- The indictment was unusual direct participation in any violent fendant was not charged with crime. Rather, Barghouti was indicted for his role as the leader of three “terrorist organizations:” the “Fatah,” the “Tanzim,” and “Al Aksa Brigades.” These organizations had publicly claimed responsi- bility for a series of attacks that had taken place between December, 2003] was the public defender for its view that as a defeat this decision a private as of effective representation the same codes bound by attorney.defense de- obvious: A private asymmetry was Here, the unavaila- to represent an be compelled could never fense attorney client. non-consenting ble and \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 25 16-APR-04 9:30 C Y 18178_nlr_48-1-2 Sheet No. 61 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 61 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 61 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 According to the indictment, According 39 signed by representatives of the 40 NEW YORK LAW SCHOOL LAW REVIEW Upon filing the indictment, the prosecution petitioned the indictment, the prosecution petitioned Upon filing the 39. of the attacks outlined in the indictment occurred in a wedding hall in One 40. attorneys argued that, in accordance with the Interim Israeli-Pales- Barghouti’s the Israeli town of Hadera. Six guests at the wedding were gunned down while sitting next to the dance floor. Another attack was launched in a crowded seafood restaurant in Tel Aviv. (Customers eating dinner were attacked by a gunman, who used an auto- grenades into the restaurant.)matic assault rifle, and also lobbed hand the In one of Priest for an Orthodox Jewish settler, killed attacks, a sniper, who mistook the bearded the West Bank.a Greek Orthodox Priest driving his car on In another attack, a woman down in the presence of her baby son, after sitting in her car at a gas station was gunned the attacker ascertained that she was Jewish. Gaza, the State of Israel had granted exclu- tinian accord regarding the West Bank and sive jurisdiction to Palestinian National Council regarding the prosecution of criminal acts committed in the West Bank.argument was rejected by the District Court of This and Tel Aviv in a detailed decision, which cited various clauses of Israeli domestic law and the Israeli-Palestinian accords, which sustain and affirm Israel’s authority to indict try persons who allegedly committed crimes against Israeli citizens on the West Bank and within the pre-1967 boundaries of Israel. 116 April, 2002.2000 and the death of twenty-six attacks caused The of the Is- four members civilians and including twenty-two persons, forces.raeli police took in the indictment outlined The attacks pre-1967 and within the West Bank in the occupied place both of Israel. of the State boundaries \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 26 16-APR-04 9:30 State of Israel and the Palestinian Authority.State of Israel and the Palestinian arguments were These rejected by the District Court. to custody Barghouti was remanded for the duration of his trial. procedure, The formal arraignment official commencement of a crimi- which Israeli law defines as the 2002.nal trial, was scheduled for September, was assigned The trial Barghouti also made public statements that incited his followers to public statements that incited Barghouti also made commit murder. of the crimi- in custody for the duration court to detain Barghouti nal proceedings.be this motion and asked to Barghouti opposed released on bail. Barghouti was represented by At the bail hearing, Jouwad Boulous, a defense attorneys, headed by a team of private with ex- from the Palestinian Arab community prominent attorney with terror- in representing defendants charged tensive experience ist crimes.the bail hearing Barghouti’s defense attorneys argued at because the State of Israel that the indictment should be dismissed charges against an elected Pales- had no authority to bring criminal tinian official. was a viola- They also claimed that the indictment tion of the Oslo Peace Accords, 18178_nlr_48-1-2 Sheet No. 61 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 61 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 62 Side A 04/27/2004 12:08:32 117 41 ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI Barghouti: “First of all, I want to say clearly, with all due respect, the Barghouti: “First of all, I want to say clearly, I do not recognize this Court. This Court represents the occupiers. Justice Sirota: “Do you want to be represented by counsel? Barghouti: I said no.” Justice Sirota: “In my opinion, you need an attorney. And I am obli- Barghouti: “This is unacceptable. not you.” I decide, Sirota: “The law states that we have to read the indictment to the de- Barghouti: “I don’t want to hear the indictment.” Sirota: “Sir, you don’t have a choice. If you had an attorney, you Barghouti: “No, no, I didn’t see the indictment, and I will not relate to Sirota: “All right, but you have to hear. I could spare you this if you Barghouti: “I don’t have an attorney. He does not represent me. No- Public Defender does not represent me. I represent myself, and there is a mistake here. It is not me that should be sitting on the defendant’s chair, but the State of Israel. This is the Court of the occupiers. This is not a personal matter.” explain this to you.” gated, and in accordance with the law, to the preliminary objections you fendant, and if he has any objections, like the defendant should raise the have raised about the authority of the court, indictment.objections after we read the document of Now, if you have an and it saves time.attorney, then he can read the indictment, But, since you read the indictment to you.” don’t have an attorney, I am obligated to the indictment. . . Excuse me, wouldn’t have to listen to the reading of of Advocate Boulous, who repre- there is an attorney here from the office sented you at the bail hearing. He certainly read the document of indict- ment to you.” the indictment at all.at all. I won’t relate to it The indictment does not interest me. government.” This is an indictment of an occupying had an attorney. The law says. . .” body, I represent myself.” The OPD responded by requesting not to be appointed. It ar- by requesting not to be appointed. The OPD responded At the arraignment hearing, Barghouti was not represented by not represented Barghouti was hearing, At the arraignment 41. dialogue between Barghouti and Justice Sirota, as recorded in the court The M K protocol, speaks for itself: gued that the Supreme Court’s ruling in the Amiel case held that Court’s ruling in the Amiel gued that the Supreme to cooperate refused representation and refused when a defendant should be defense counsel, the defense attorneys with an appointed 2003] Sara headed by Justice judges, of three experienced to a panel Sirota. counsel.defense to ob- a representative attorneys sent His private he had insisted that the representative proceedings, but serve the attorney at to act as Barghouti’s defense no “power of attorney” trial. the OPD to arrange for The District Court then ordered to be repre- but Barghouti adamantly refused Barghouti’s defense, Defender. sented by a Public \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 27 16-APR-04 9:30 C Y 18178_nlr_48-1-2 Sheet No. 62 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 62 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 62 Side B 04/27/2004 12:08:32 M K , C Y Amiel [Vol. 48 NEW YORK LAW SCHOOL LAW REVIEW precedent, in which the Supreme had required the the Supreme had required precedent, in which Buskila Barghouti made no secret of the reasoning behind his posi- Barghouti made no secret of the the OPD re-petitioned the Dis- In light of Barghouti’s position, 118 released. uneth- that it would be also believed OPD senior staff The unwilling- of consent and given his lack Barghouti, ical to represent discuss the case.ness to that adversarial The OPD emphasized strategy the defense would undermine of Barghouti representation by the defendant.chosen believed however, The District Court, that the \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 28 16-APR-04 9:30 OPD to represent a client it never met, rather than that of a client it never met, rather OPD to represent governed the Barghouti case and refused to dismiss the OPD. case and refused to dismiss governed the Barghouti The to meet with of Tel Aviv was ordered District Public Defender try to arrange for his representation.Barghouti and to Thereafter, attempts to locate Defender made a series of the District Public would find acceptable.counsel that Barghouti Although some of expressed their private-bar attorneys in Israel the most experienced Barghouti po- Barghouti on behalf of the OPD, desire to defend all of these offers.litely turned down He also refused to accept the defense attorneys on the OPD’s assistance of the most experienced staff. to forego any trial defense was tion. He stressed that his decision with his privately retained attor- adopted after careful consultation neys. against He emphasized that he held no personal resentment prepared to assist him.the public defenders who were Neverthe- the OPD as an extension of the less, he explained that he regarded Israel.occupying powers of the State of impossible for It would be from the OPD.him to accept any kind of representation Barghouti should speak in his name in demanded that no public defender in his behalf. court or try to mount a defense from the case.trict Court and asked to be dismissed The District ordered the OPD not only to re- Court denied the request and “mount a vigorous defense of the present Barghouti, but also to defendant.” the Court Over the District Public Defender’s protests, must represent Barghouti like insisted nonetheless that the OPD on his behalf and cross- any other client, making legal arguments examining the prosecution’s witnesses. Underlying the Court’s de- cision was the assumption that an adversarial system of justice can- not function properly if the defendant does not offer a defense. In 18178_nlr_48-1-2 Sheet No. 62 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 62 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 63 Side A 04/27/2004 12:08:32 119 This rule expresses the classic 42 ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI D.Compelled Representation the Dilemma of Resolving The OPD now faced a serious dilemma. now faced a serious The OPD could a defense How an at- ethics rules, it is unclear whether Under the applicable Beyond questions of law and ethics, there was a powerful politi- Beyond questions of law and ethics, 42. Rule 54 of the Chambers of Advocates Law (Professional Ethics), 1986. M K 2003] a crimi- Court held that and justice, the of due process the interests wishes. regardless of his at trial, must be defended nal defendant about the indict- a client who would not talk attorney represent ment? the explicit request of a men- May a defense attorney ignore to cross-examine client who asks the attorney not tally competent witnesses?the prosecution’s a criminal defendant’s right to Does refuse to be repre- authority imply a right to challenge the court’s at trial?sented by counsel public defender’s role in the Does the of defendants justice include the representation administration of represented? who refuse to be who refuses a mentally competent defendant torney may represent to be assisted by counsel. ethical rules The Israeli Bar Association’s an attorney shall act for the ben- stipulate that “in fulfilling his role, dedication, and shall assist the efit of his client with loyalty and court in administration of justice.” \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 29 16-APR-04 9:30 tension between the attorney’s loyalty to the client on the one tension between the attorney’s of the court on the other.hand, and his role as an officer Relying a public defender is ethically on this rule, one could argue that justice,” thereby protecting the bound to assist the court in “doing even when a recalcitrant defendant from a possible false conviction, defendant wishes not to be represented. was reluctant But the OPD too much weight to the defense to accept this view because it lent court and undervalued the de- attorney’s role as an officer of the and the defendant’s right to fense attorney’s loyalty to the client control his defense at trial. of representing Barghouti at trial. cal subtext underlying the issue to accede to the rules of the game Marwan Barghouti was unwilling on him.that the State of Israel was imposing did not want to He accept the role of a criminal defendant. preferred to Barghouti concentrate his efforts on undermining the very legitimacy of the criminal proceeding initiated against him. He wanted to portray by himself as a political prisoner and a martyr, unjustly prosecuted C Y 18178_nlr_48-1-2 Sheet No. 63 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 63 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 63 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 NEW YORK LAW SCHOOL LAW REVIEW Barghouti’s decision to forego the assistance of counsel was an- of counsel was the assistance decision to forego Barghouti’s not to defend argue that Barghouti’s decision One can further subtext underlying the di- Another layer of political and social 120 legal system.an immoral a fair trial to look like did not want his He proceeding. irrational.ything but could counsel, Barghouti absence of In the repre- audience of media in front of an to the court, speak directly around the world.sentatives from The absence of counsel would as an underdog. defiance and his posture underscore Barghouti’s Israel to portray it difficult for the State of It would also make a fair trial. alleged criminal who was receiving Barghouti as an OPD would un- position, representation by the Given this defense interests, as he perceived them. dercut Barghouti’s he could make was the most intelligent decision himself at trial under the circumstances. trial was taking place, While Barghouti’s in discussions with the Pales- the Government of Israel was engaged of an internationally tinian Authority about the implementation as “the road map to peace.”brokered peace initiative known It was of this peace initiative widely assumed that the implementation prisoners from Israeli pris- would include the release of Palestinian ons. released, if the In this context, Barghouti could hope to be apply sufficient pressure on the Is- international community would raeli Government. support to It would be more difficult to garner in a full-fledged criminal release Barghouti if he were convicted trial with due process of law. would The international community to release Barghouti if he could be more likely to pressure Israel prosecuted unfairly in a bo- portray himself as a political prisoner, gus criminal trial. relates to the OPD’s perception lemma of representing Barghouti of its role in Israeli society. OPD had em- Since its inception, the the organs of the state.phasized its independence from Public de- their credentials as zealous fenders had sought to establish enabling them to establish rela- advocates of individual defendants, tions of trust with their clients. Although the OPD was funded by the state and some of its attorneys were directly employed by the state, the individual defense attorneys strove to portray themselves cli- as independent actors bound by an undivided loyalty to their ents. Eventually, this message registered with the relevant segments \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 30 16-APR-04 9:30 18178_nlr_48-1-2 Sheet No. 63 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 63 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 64 Side A 04/27/2004 12:08:32 121 ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI Notwithstanding its understanding of Barghouti’s position, the its understanding of Barghouti’s Notwithstanding of actual representation. But OPD compliance stopped short inaction in court was dictated Ultimately, the public defenders’ M K 2003] and Arabs alike. public, Jews of the Israeli The OPD gradually includ- of the population, from all sectors trust of clients earned the and Gaza. the West Bank Arabs from ing Palestinian The Barghouti repre- of the OPD; the delicate position to upset case threatened would ap- court order his wishes under Barghouti against senting and loyalty to of disloyalty to the client pear to be a manifestation the state. a deleterious effect on the cov- This would certainly have and their trust between the public defenders enant of professional future clients. comply with the that it had to make an effort to OPD staff knew court order instruction because it was an official District Court’s Public Defender a state agency. Thus, the District and the OPD was to represent of experienced defense attorneys appointed a team Barghouti at trial.for trial by stud- The defense attorneys prepared material in the prosecutor’s ying all of the voluminous investigative file. and poised They made a concerted effort to be well prepared for action in court. from active participation in the The staff attorneys deftly refrained the response of the judges trial, constantly measuring and assessing in the courtroom setting.judges, the attor- To the dismay of the the witnesses; nor did neys sent by the OPD did not cross-examine on Barghouti’s behalf.they make any legal arguments Their inac- into open conflict with the court. tion did not, however, bring them passivity did not stimulate cen- Paradoxically, the public defender’s calls for proactive representa- sure of the attorneys, nor renewed tion. the defense. Instead, the judges attempted to fill the role of their attitude of moderate Uncharacteristically, they abandoned adopted a critical, if not suspi- aloofness toward the parties and cious, posture toward the prosecution. were constantly The judges questions from the bench, openly interrupting the prosecutor with parts of the evidence. expressing their doubts about certain by the practical difficulty of defending a client who would not coop- erate with counsel. Because criminal defense requires active con- sultation with the client, genuine cross examination of the prosecution’s witnesses was impossible. The prosecution’s case \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 31 16-APR-04 9:30 C Y 18178_nlr_48-1-2 Sheet No. 64 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 64 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 64 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 ONCLUSION C NEW YORK LAW SCHOOL LAW REVIEW The right to publicly funded defense counsel in criminal pro- In order to mount a proper defense, the defense attorneys a proper defense, the defense In order to mount unrepresented, it could be Despite the client’s wish to remain ceedings in Israel has always been limited. In the early 1990s, a national average of over fifty percent of the defendants went unrep- 122 by of his interrogation on transcripts was based against Barghouti statements wide variety of and a Security investigators the General who alleg- Brigade, of the Al-Aksa Martyr’s field operatives made by deputies. as Barghouti’s edly acted intro- prosecution also The the West offices on in various Palestinian seized duced documents gave to the news taped interviews that Barghouti Bank, as well as media. defense attorney could not con- The OPD believed that a the client’s version of defense without hearing struct a proper line comments on the in the indictment or his of the events described prosecution’s evidence. cooperation and participation.needed the client’s What were the Barghouti’s confession?circumstances surrounding What ap- alleged used with the testimony of Barghouti’s proach should be accomplices? for the de- Who would constitute good witnesses fense? to create an What documentary evidence should be used alternative view of events? a defense It was impossible to build factual scenarios and fishing expe- based on speculation, imagined ditions. the prosecu- To do so would run the risk of strengthening tion’s case. and The judges seem to have silently acknowledged not mount a proper defense, accepted the view that counsel could case on their own. and decided to challenge the prosecution’s was detrimental to the due process argued that the OPD’s passivity of law.undermined the Barghouti’s refusal to mount a defense trial.Court’s ability to conduct a full-fledged of justice The system vigorous cross examination could not function properly without and adversarial legal argument. and ex- This point was dramatically plicitly made by Barghouti himself. finished After the prosecutor declared to the Prosecutor, “You her summation speech, Barghouti a defense, because I would have are lucky that I didn’t conduct on lies.”shown that your whole case is based months later, Many in the case. the court has not yet given its judgment \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 32 16-APR-04 9:30 18178_nlr_48-1-2 Sheet No. 64 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 64 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 65 Side A 04/27/2004 12:08:32 123 ISRAELI PUBLIC DEFENDER SYSTEM DEFENDER PUBLIC ISRAELI The OPD had committed itself to a mission of professionaliza- The OPD had committed The case of Marwan Barghouti posed a threat to the profes- M K 2003] at criminal trials.resented Israel did of the OPD in The creation change this.much to was ex- counsel for appointed Eligibility radically indictment was hearings before the nature of bail panded, represen- defenders and “on duty” public due to the use of changed dramati- court increased in the juvenile defendants tation among cally. of defense services rose through Most importantly, the quality OPD staff supervi- of attorney selection and active a refined system the role of Arab The OPD also greatly expanded sion of attorneys. Palestinians in all in providing legal services to defense attorneys security offenses. cases of terrorism and criminal cases, including that Palestinians changes in legal aid meant These institutional in the shadow due process in Israeli courts, even could now receive conflict. of the Israeli-Palestinian of the arena and politics were kept outside tion, in which ideology of legal services.was blind to the This did not mean that the Office in the quest to establish attor- role of ethnic and national identity ney-client confidence and loyalty.appointed Jews Rather, the OPD represent Jews, so long as the com- to represent Arabs and Arabs to in the case of Palestinian defen- mitment to zealous representation dants was not compromised.this policy has To a large degree, worked. an institution A strong bridge has been created between Palestinian clients who find them- funded by the State of Israel and of a state for which many of selves swept up into the legal system disdain. Our observations indi- them feel nothing but enmity and and reliance can be created in cate that a significant degree of trust this climate. in a genuine When skilled professionals offer help willing to accept it.way, individuals in trouble seem Within the en- are able to communicate clave of confidentiality, public defenders efforts to act in the best interest to Palestinians that their good-faith values are stronger than attor- of their clients and their professional conflicts.ney-client political or ideological sense, In this important among public defenders today commitment to professional values storm of the Palestinian-Israeli is strong enough to weather the conflict. sional mission of the OPD. If the OPD had represented Barghouti against his will, it would have communicated that the OPD has cho- \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 33 16-APR-04 9:30 C Y 18178_nlr_48-1-2 Sheet No. 65 Side A 04/27/2004 12:08:32 A 04/27/2004 No. 65 Side Sheet 18178_nlr_48-1-2 18178_nlr_48-1-2 Sheet No. 65 Side B 04/27/2004 12:08:32 M K C Y [Vol. 48 NEW YORK LAW SCHOOL LAW REVIEW Although the OPD arrived at a solution in the Barghouti mat- Although the OPD arrived at a solution 124 of his own perception over the client’s to the court sen allegiance interest.or her best of law and rejection allegiance to a court While the ethics dictated by is sometimes choice of action of a client’s is prob- dictates between these competing a balance rules, finding of client as an instrument is viewed by the when the court lematic state oppression. representation of Barghouti In this context, OPD of trust between have damaged the foundations would certainly and many Palestinian clients.public defenders On the other hand, the OPD in di- Barghouti would have placed refusing to represent would fur- a court order, which the court believed rect violation of of the law.ther due process This dilemma was ultimately acted cautiously both the OPD and the Court sidestepped because to the complexity of the situation.and with deference While the present in court’s order, the public defenders OPD accepted the made it impracti- to explain that the circumstances court continued or make procedural arguments. cal to cross examine witnesses order as a formal statement of While the court stood behind its that the public defenders comply procedural law, it did not insist with it.a standoff. The court and the OPD silently negotiated The to represent a recalcitrant principle that the OPD had an obligation practical impossibility of actually client was preserved, while the acknowledgment. presenting a defense received informal arising in the future with ter, the possibility of the same situation greater frequency is troubling. refuse repre- If more Palestinians of the courts, public defenders sentation and reject the authority to make a contribution to the due will progressively become unable process of law. of violence This would be a signal that the politics structure of law and de- and hatred had breached a fundamental mocracy in Israeli society.way to avoid this In our view, the best of highly professional legal repre- result is to strengthen the pursuit in criminal proceedings.sentation and to bolster due process As by their clients as loyal and long as public defenders are perceived to fundamental notions of due zealous, and the courts remain loyal au- process, it will be possible for the law to retain its integrity and thority, even in the extremely difficult circumstances posed by the Palestinian-Israeli conflict. \\server05\productn\N\NLR\48-1-2\NLR214.txt unknown Seq: 34 16-APR-04 9:30 18178_nlr_48-1-2 Sheet No. 65 Side B 04/27/2004 12:08:32 B 04/27/2004 No. 65 Side Sheet 18178_nlr_48-1-2