I was listening to a news story about the prime minister’s trial. According to the reporter, the prosecution said the trial could last five years, due to the number of witnesses they would be calling. This reminded me of an interview with justice Aharon Barak, the former Supreme Court president, when the reporter brought up the issue of civil trials.
The reporter asked Barak if he thought it was reasonable that civil trials lasted five to seven years, and the justice said that length of time was indeed reasonable.
Not long ago, MK Avigdor Liberman was under investigation for economic crimes, with the investigation lasting 12 years. Prime Minister Benjamin Netanyahu’s investigations seem to be on track to challenge that timetable.
Set aside whether the parties are guilty or innocent. A civil trial between two citizens over a business deal or a dispute between two neighbors that drags on for five, six, or more years is not reasonable. Nor is a criminal trial expected to last five years, and certainly not an investigation that lasts 12 years. That’s five or 12 years of being summoned to give testimony; five or 12 years of retaining lawyers and paying other legal fees. And then the accused is not charged due to insufficient evidence.
The problem isn’t with the early stages of an investigation, when the investigation is performed quietly by the police and prosecution. The problem is when the investigation goes public, tarnishing the accused’s public image (for both public and private individuals) and disrupting their lives. Again, that some of the accused are guilty is irrelevant, since some are innocent.
Israel's trial system
The reason this happens lies in the nature of our trial system in Israel. Ours is a magistrate system, versus the jury trial system of England and most of her former colonies, such as the US. In a magistrate system, (civil or criminal) the accused is tried before a panel of judges. In Israel, the panel may be a single judge or three judges.
For the judges, the trial is a job. Postponements and delays don’t disrupt their private lives, jobs, and income. For the judges, postponements of one trial simply allow the judge to move on to another trial, with its own postponements and delays, etc.
For the parties involved with the trial, five or 10 years of court hearings, police summons, postponements, etc. is both emotionally and physically exhausting, time-consuming, and expensive (attorneys’ fees, court fees, salary forgone).
The time spent in court, and the inability to know how long it may take, can disrupt one’s work and one’s relationship with their employer and fellow employees. That a judge thinks five to seven years for a civil trial is reasonable simply means that the judge doesn’t relate to the time and stress the delays create for the rest of us.
For a Supreme Court justice, earning a public salary, to think that it’s reasonable for a civil trial to last five years or more is simply an insult to the public that is paying his salary. The same applies to criminal trials lasting five years.
In a jury trial, ordinary citizens are summoned to sit in on a trial (petit jury) and decide the merits of the case. The trial represents a disruption of their lives and isn’t allowed to drag on in an open-ended fashion. The two sides of the trial can ask for postponements and delays during the preliminary stages but once the jury is formed, the trial moves on.
I had the privilege of sitting in a jury in the US, in a civil trial: a landlord suing a commercial tenant for unpaid rent. It lasted nine days, including our deliberations. Throughout the trial, efforts at delay were resisted by the judge, who in some cases reminded the attorneys that the jurors had their private lives awaiting them.
A jury system would also include a grand jury as the source of indictments, rather than a judge or panel of judges. As with the petit jury, a grand jury is made up of ordinary citizens. In this case, they are asked to review the evidence presented by the prosecution and to decide if the evidence is sufficient to get a conviction before a petit jury.
Judicial reform
I AM NOT a fan of the current judicial reform effort or of the current coalition government. But, if they want to reform the judicial system, I suggest they start not with the judges, but with the trial format: they should change the trial system to a jury format.
A jury format would satisfy most of their complaints by placing the indictments phase in the hands of a panel of ordinary citizens (grand jury) and the trial itself in the hands of yet another panel of ordinary citizens (petit jury).
A jury system would reduce the amount of time the prime minister or any other political figure’s life is disrupted by the State Attorney’s Office, and remove the verdict from a judge who allegedly is the captive of the Left (whatever that is). And it would benefit the ordinary citizen by reducing the amount of time a trial takes from their lives, as well as their legal expenses.
They should also look at establishing limitations on the type and duration of delays that either side of a civil trial can ask for, in an effort to reduce the length of these trials (to less than five years).
I think that a change in the trial system to a jury trial would be acceptable to both the coalition and the opposition, including the good folks in Tel Aviv.
The writer is the deputy chair of the Division of Business Administration at Touro College Israel.