The possibility of a plea deal between former Prime Minister Benjamin Netanyahu and the State Attorney’s Office is highly controversial. On the one hand, it was argued that Netanyahu is like any other defendant, entitled to enter into a plea deal with the state. The principle of equality requires that if a plea deal can be reached with a vile killer, a plea deal can be made with the former prime minister. Moreover, what is wrong with the plea deal if Netanyahu, who has denied the charges against him from the beginning, takes responsibility for his actions and admits guilt. Ostensibly, the public interest came to his satisfaction. On the other hand, it was argued that the public interest is precisely the clarification of the truth in a criminal trial. A plea bargain is a compromise in which it is not possible to know to the end how the Israeli prime minister conducted himself.
The dignity of these arguments is in place, but it seems to me that in order to understand whether in this specific case it is appropriate to approach a plea deal, one must zoom out, detach slightly from the concrete case and ask a question that seems trivial at first glance but significant and central to understanding criminal law. In conducting criminal proceedings in court from beginning to end? Why is it not said that the desired situation in the first place, and not just a necessary knee, is to close all the cases in a plea bargain without the need at all for evidentiary proceedings in court? Apparently this will lead to both efficiency and a just result in the circumstances of the case. One answer is that the criminal proceeding is primarily intended to let the defendant prove his innocence in court. This answer is not exhaustive, since in terms of the public interest, the conduct of the criminal trial from beginning to end is not only intended for defendants who wish to conduct a trial to prove their innocence. It is also intended for cases where the defendant is indeed interested in a plea deal since closing the case thus impairs the ideal doing of justice in which there is no room for compromise. When an indictment for rape is closed in a plea deal on an indictment only, the absolute justice is violated and with it the public’s trust in the system. Moreover, and as former Supreme Court President Justice Moshe Landau has argued, there is a point to a flaw in a plea deal made with an offender in chambers and ending in a reduction of the charge or the imposition of a light sentence that does not befit the seriousness of his actions. It undermines public trust and creates the impression of where and when in prosecuting criminals and of pulling strings behind the scenes by influential people.
But even these answers do not tell the whole story. In a legal regime where almost all indictments are closed in a plea deal there is another acute problem. In such a regime, there is a fear that the State Attorney’s Office will in the first place file indictments against citizens even when it was not appropriate to prosecute them. The concern stems from the fact that in a plea deal there is no supervision at all by the court examining whether the prosecution acted lawfully at the time of filing an indictment. In addition, the prosecution can secure a conviction relatively easily since in most cases the defendant would prefer to confess rather than continue the proceedings in court. In other words, in a regime where the “real queen” is the plea bargain, the prosecution actually has nothing to lose: the conviction is relatively certain, and the supervision of the court – no.
It should be added that in an era of constitutional rights, including the right to a fair trial, in a certain aspect, both parties are in fact “on trial” – the defendant and the law enforcement authorities as a whole. The defendant – whether he is guilty or entitled, and the prosecution authorities – whether all the investigation and prosecution proceedings were conducted lawfully. This is a very important insight in a democracy where humanism, freedom and human dignity are at the forefront. However, when almost all the indictments are closed in a plea bargain, the conduct of the prosecuting authorities is not examined.
Zoom There is no going back to the Netanyahu trial. I am not at all arguing that the institution of plea bargains should be abolished which ultimately also has many benefits. However, in view of the many considerations that stand against a plea deal, it is understandable why the Netanyahu trial is not appropriate to end in such a deal. If in any criminal trial both the defendant and the prosecution “prosecute”, in the case of the Prime Minister’s prosecution it is easy: in this case Netanyahu was prosecuted for bribery through an innovative legal construction of sympathetic coverage, and in addition, it would not be unreasonable to say that filing indictments had an effect On the political change in Israel.
Thus, there is first and foremost a need to know to the end whether and to what extent Netanyahu’s conduct in the various cases was corrupt, but there is also a central importance in clearly conducting the State Attorney’s Office. Was the filing of the indictments against Netanyahu a legal, professional and logical move worthy of the name, or was there a political persecution here using improper legal means to overthrow a prime minister in Israel.
A plea deal that leads to a compromise may benefit the parties who will sign the deal, but will severely harm the public interest as a whole.
The author is the author of the book “Between Action and Failure in Criminal Law” and a senior lecturer in the Faculty of Law, Ono Academic Campus