Report: State Prosecution withheld autopsy findings that could have led to acquittal
Commissioner for Prosecutorial Oversight finds in some cases that prosecutors knowingly violated court orders, withheld significant information from the defense that could have led to acquittal, and unlawfully mounted difficulties on the defense in obtaining important evidence.
A damning report released Sunday by the Commissioner for Prosecutorial Oversight pointed to serious misconduct by the State Prosecution.
The report by Judge David Rosen examined the working relationship between the National Center of Forensic Medicine—also known Abu Kabir Forensic Institute—and the State Prosecution.
During the years examined in the report, the institute provided the prosecution with expert medical opinions for thousands of trials for murder, manslaughter, rape and other serious offenses.
In some of the cases, the commissioner found that prosecutors knowingly violated court orders, withheld significant information from the defense that could have led to acquittal, and unlawfully mounted difficulties on the defense in obtaining important evidence that might have benefitted the defendants.
The harsh criticism by the commissioner raises the concern there might be innocent people who are serving or have served prison sentences.
Changes in medical opinion to defendant's detriment
The report points to a series of cases in which the expert opinion by the Abu Kabir Forensic Institute was changed throughout the investigation—always to the defendant's detriment.In one case, when a body was found, the institute initially determined that "the cause of death cannot be determined with the necessary level of certainty."
The initial line of inquiry was suicide. At a later stage of the investigation, however, a suspect was found who confessed to the murder of the deceased.
In court, the pathologist repeated his initial expert opinion that "one cannot rule out the possibility the deceased committed suicide by inhaling gas in his home." But after the prosecution pressed him time and again, the pathologist wrote an additional, entirely different opinion, which determined that "one can rule out the possibility the death was caused by inhaling cooking gas."
The defendant was subsequently convicted of murder.
In another case, a man spent two years in custody for aggravated assault even though the prosecution knew there were doctors at the institute who thought the plaintiff might have intentionally wounded himself to frame the suspect.
The prosecution withheld this information, and a senior prosecutor has even instructed to remove a record of a meeting between the prosecutor in the case and the institute's doctors from the investigative material, which could have helped the defendant.
Eventually, however, the prosecution had to withdraw the indictment.
The report found that during the tenure of Chief Pathologist Yehuda Hiss as the head of the institute, the State Prosecution and the Abu Kabir Forensic Institute worked together to mount difficulties on defense representatives and experts on the defense's behalf.
They refused to provide the defense with some of the investigative materials and withheld access to autopsies and other findings, to the point of "deviating from a judicial order," as Rosen defined it.
The commissioner stressed that the prosecution must make all investigation materials accessible to the defense and implied that in cases this was not done, indictments might have been filed unlawfully and could be dismissed.
The report also noted that the prosecution routinely failed to ask the institute for materials. As a result, the prosecutor in the case did not have all investigative material when determining whether to file an indictment.
In his report, Rosen presents the testimony of a senior official in the Health Ministry who noted that "the impression was that the Abu Kabir Forensic Institute was a 'sword for hire.' There was a great war being fought to keep the State Prosecution away at all cost. The chief pathologist (Hiss) led the fight. I had to fight to allow the defense to use the library, a microscope, to examine photos from the autopsies."
Fight for the report's release
The investigation into the State Prosecution's conduct vis-à-vis the Abu Kabir Forensic Institute began after a series of investigative articles by Dr. Ronen Bergman published in Ynet's print edition Yedioth Ahronoth beginning December 2000.
The exposé and the subsequent series of inquiry commissions, a police investigation, and an inquiry by the Health Ministry, may have led to the dismissal of Chief Pathologist Yehuda Hiss, but did nothing to address the misconduct of the State Prosecution.
Rosen's predecessor, retired Judge Hila Gerstel, launched an extensive investigation into the State Prosecution's conduct, which concluded with a scathing report a year and a half ago.
In response, the State Prosecution decided to wage war against the very existence of the Commission for Prosecutorial Oversight and against Gerstel herself. Eleven prosecutors criticized in the report petitioned the High Court of Justice against its public release.
Gerstel, who felt she did not have support, resigned and was replaced by Judge David Rosen.
Rosen continued Gerstel's work and the result was what was defined by one government minister as a report that "raises doubts concerning the 'purity of arms' in the State Prosecution."
There were, however, differences between Rosen and Gerstel's reports. Gerstel claimed the State Prosecution must not come in contact with the institute's doctors and try to influence their medical opinions. Rosen disagreed: "The prosecutor is obligated to confront the expert with findings (evidence) he believes were not taken into account or were rejected because of other findings."
Rosen noted, however, that while the prosecutor has a right to request changes to be made to the medical opinion, the meetings between the prosecution and the institute must be fully documented by both sides and the records must be provided to the defense.
Responses to the report
In his report, Rosen noted the shortcomings found at the institute have been rectified since Dr. Chen Kugel has been appointed to replace Hiss as the chief pathologist. However, Rosen stated the State Prosecution has yet to rectify in full its shortcomings in its work vis-à-vis the institute.
Justice Minister Ayelet Shaked has said she would work to implement the conclusions of the report. "In that, we will ensure defendants' rights are protected and improve transparency in criminal proceedings in Israel," she said.
State Attorney Shai Nitzan said in response that "the commissioner accepted the State Prosecution's position on the necessity of having dialogue between the Israel Police and State Prosecution and the experts of the institute, which rejects the main claim against the prosecution. In addition, the commissioner rejected the claims that prosecutors allegedly interfered in the medical opinions of the institute's doctors."
The Israel State Attorney Association said in response, "Many expected and even hoped the report would serve as an 'earthquake,' but the commissioner reached the unequivocal conclusion there was no improper interference by the prosecutors. The commissioner even believes that prosecutors' requests to the institute actually led to defendants' acquittal."
The Health Ministry said in response, "The ministry, headed by Minister Yaakov Litzman, conducted an extensive re-organization of the institute, including, among other things, the replacement of Chief Pathologist Prof. Hiss. The ministry proposes to establish an additional judicial institute to provide services to defense attorneys."
