Two leading jurists launched harsh criticism against the High
Court President over his forgiving attitude toward judges who
express predispositions regarding defendants before hearing
all of the testimony. They say Aharon Barak generally refuses
to disqualify judges because he perceives them as if they were
immune to human defects and sees every judge in his own
image.
An article on this topic written by Attorney Tzvi Noach
appeared in the financial newspaper, Globes, in April
under the headline, "Everyone Subject to Judgment Except for
the Judges." It begin with a number of examples: In response
to a request by the state's attorney to call witnesses to the
stand in a criminal case, a Tel Aviv District Court Judge got
the impression that the defendant was dictating to his
attorney how to examine the witnesses. The judge did not stop
there and added the following remarks in the courtroom: "Since
I am familiar with this type, meaning the defendant, I will
not allow questions identical to those posed in hearings in
which he was not present."
Attorney Noach inquires rhetorically, "Was the defendant in
danger of having his trial skewed by the judge due to the
stigma she placed on him ("this type") and due to her overall
stance revealed through these words?
After citing a few more examples, Noach concludes that in
every instance, like in many other cases, justification was
not found to disqualify the judges, despite the fact that the
law provides the litigants the right to request a judge to
remove himself in cases with "circumstances that create
substantial suspicions of partiality in the handling of the
trial." Usually these requests are rejected by the presiding
judge, in which case the litigants have the right to file a
direct appeal to the High Court President, who can then elect
to try the appeal himself, or to assign another High Court
justice to try it. The majority of appeals are tried before
the High Court President and his opinion on the subject is
clear and final: in favor of the judge.
Attorney Tzvi Noach notes that the judicial system casts
judgment, but the question is how willing is it to accept
judgment cast upon it and to confront criticism without
assuming a defensive stance?
According to Noach on various occasions the dealers and
consumers in the legal world--plaintiffs, defendants,
attorneys, and even one minister of justice--have challenged
the judicial system, which reacts, as a rule, with obvious
displeasure. The judges were not fond of a recent offer by the
Attorneys' Bureau to provide feedback. The judges tended to
show an aversion to the idea of attorneys giving them
grades.
Noach writes, "The policy that the legal establishment
demonstrates toward filing requests to disqualify judges is no
different. It is an attitude of suspicion that endeavors to
restrict not only the weight given to this specific
defendant's personal impressions, but also the impressions of
a normal defendant, all presented as an unconvincing comment
on the faculties judges are supposedly endowed with. Attorneys
and defendants know that a disqualification request has slim
chances of being accepted. In recent years Aharon Barak has
been making efforts to tighten the guidelines for
disqualification more than ever before."
Noach notes that the legal establishment has always had an
approach that encourages depersonalizing the judge. In his
article, "The Honorable Judge", Professor Yehoshua Weissman
writes, "The honor felt toward the individual judge sitting on
the judge's bench is not at all dependant on his personal
attributes, whether he is intelligent or a fool, knowledgeable
or ignorant, pleasant or gruff. The attitude toward the judge
is the attitude toward the trial."
On this remark Noach comments, "This is pure fiction which may
have been true in the past, but does not apply to the present.
The pretense of the depersonalized approach is thoroughly
unconvincing. In fact it eats away at the public's faith in
the judicial system. The approach articulated by Lord Denning,
according to which `judges are not an acme of perfection, they
are liable to err and to bring about injustice. Their errors
stem from lack of knowledge, a lack of ability, partiality and
even from hostility,' represents a more accurate portrayal of
the reality."
The problem is that Aharon Barak is more amenable to the
obsolete approach, "which miraculously makes the judge
seemingly immune to human defects." This is constantly evident
in his approach, according to which "those who seek to
disqualify a judge leave a stain on the entire judicial system
. . . "
Noach notes that such a determination defies all logic and
explanation. A litigant files a request to disqualify a
presiding judge in a certain case based on a specific event,
and that's all there is to it. He does not want to confront
"the entire judicial system." There is no relationship between
his claims against the judge's actions and the "entire
judicial system." This is not what someone who files a request
to disqualify a judge based on subjective grounds sets out to
do, and his request is not perceived as such when viewed
objectively. In fact the opposite is true-- requests for
disqualification are reviewed based on guidelines set out by
the judicial system, and the requests filed claim that the
judge is the one who deviated in this case, based on accepted
judiciary guidelines.
"It goes without saying that this apparent comparison Barak
makes--between the individual judge and the judicial system as
a whole, between private claims brought against a certain
judge in a certain incident and supposedly blemishing the
entire judicial system--is a groundless comparison designed to
accentuate the gravity of the consequences that result from
the disqualification request, and to raise the minimal
requirement necessary to disqualify a judge. With this as the
starting point, it should come as no surprise that (excepting
rare instances) judges who make remarks during court
proceedings that indicate even the possibility of having
prejudices are not disqualified. Judges who have been exposed
to inadmissible evidence or a defendant's criminal record are
relied on to have "erased" the information from their
memories. In cases where multiple defendants stand trial for
the same charges, presiding judges who express their opinion
of Reuven in the decision handed down to Shimon are relied on
to have not already finalized their decision regarding Reuven.
Judges who apply pressure on either side to accept a given
position at the beginning of a trial are relied on to
disregard this stance when the time comes, and to judge the
issues of the matter."
On this matter he points to a further example: a plaintiff
filed a suit for slander and violating manufacturing rights.
The judge did not have full command over the facts in the
case, but this did not prevent her from expressing a pointed
stance at the opening of the hearing. The plaintiff's attorney
corrected her. At a later stage the judge incited him by
saying, "Please take your seat. I am attending to the matters
at hand, as far as you are concerned, anyway."
Regarding this incident Noach asks, isn't a judge who takes
upon him or herself at the opening of a trial, without having
a proper grasp of the questions dealt with in the case, to
"tend to the matters" of one of the sides, liable to wrong the
other side? According to Barak, the answer is no. According to
his approach, the "question of the Honorable Judge's
familiarity with the case . . . neither adds to nor detracts
from my decision in this matter."
The article also cites the opinion of jurist Moshe Gorali, who
also remarks that the disqualification of a judge is a rare
sight at the Israeli courthouse. He says there are two main
reasons at the root of this scarcity: the test and the policy.
The legal test for disqualification is a "realistic
possibility" of partiality on the judge's part. A reasonable
concern or an unsubstantiated possibility is insufficient. The
litigant who files a disqualification request has to prove
that the "game is fixed," i.e. that the judge has already
finalized his stance in terms of the outcome of the
proceedings.
"Of course this test, which is intended to lay bare the
judge's mind and soul, is almost impossible to maneuver.
Attempts to demonstrate it through the harsh remarks made by
the judge are not always enough."
He mentions a series of examples: Judge Victoria Ostrovsky
Cohen referred to Aharon Abu-Chatzera as "this type." Another
judge referred to a defendant as "this psychopath." "There are
a few more murderers who have to be heard," said another
judge. None of these remarks were enough to disqualify the
judge in question from deciding the cases. Commenting on this
pattern, High Court Justice Yitzhak Zamir said, "Judges'
remarks may be grounds for regret and sometimes may be grounds
for reproach."
Gorali also claims that Aharon Barak has gone to extremes in
his clemency toward various judges. "The High Court President
extends his judges considerable credit. Sometimes too much.
Barak tends to have pity on judges. He also tends to view
them, in terms of their conduct at least, in his own
image."
