A divided High Court endorses Katsav plea bargain

Katsav plans to plead guilty to the charges included in the plea bargain indictment.

By DAN IZENBERG
high court 224.88 (photo credit: Ariel Jerozolimski [file])
high court 224.88
(photo credit: Ariel Jerozolimski [file])
The High Court of Justice on Tuesday endorsed the plea bargain between the state prosecution and former president Moshe Katsav by three votes to two, paving the way for the state to file its watered down indictment against Katsav in Jerusalem Magistrate's Court on Thursday. Although Katsav claimed throughout the investigation that he had never had sexual relations with any of the women who had complained against him to police, he will plead guilty to the charges included in the plea bargain indictment. Deputy Supreme Court President Eliezer Rivlin and Justices Ayala Procaccia and Asher Grunis voted to reject the several petitions asking the court to cancel the plea bargain. Supreme Court President Dorit Beinisch and Justice Edmond Levy, dissented, accepting the petitions and rejecting the plea bargain drafted by Attorney-General Menahem Mazuz and Katsav's lawyers, Avigdor Feldman, Zion Amir and Abraham Lavi. Beinisch did not reject the idea of a plea bargain in principle, but found that the agreement reached by the sides was unacceptable on the grounds that it did not reflect the gravity of Katsav's alleged actions. The key element in the indictment involves "Tourism Ministry Aleph." According to the plea bargain, Katsav is charged with committing an indecent act without consent using pressure. The maximum sentence for the crime is seven years in prison. According to a draft indictment prepared by Attorney-General in January 2007, the state considered charging Katsav with two counts of rape involving Tourism Ministry Aleph. Each charge brings a sentence of up to 16 years. According to the plea bargain indictment, the prosecution and defense recommended that Katsav be given a one-year suspended sentence for all of the charges it contained. While divided on the key question of whether to reject the plea bargain, the five justices voted unanimously to reject a petition by "Beit Hanassi Aleph" demanding that Katsav be charged with committing sexual crimes against her. In the draft indictment, the state had considered charging Katsav with having forbidden intercourse with her and with other crimes. The justices accepted the prosecution's position that in the period between the draft indictment and the plea bargain, additional evidence, including problems with Beit Hanassi Aleph's own testimony, had convinced the state that it did not have sufficient evidence to charge Katsav. Nevertheless, while rejecting the petition, Beinisch and Levy recommended that Mazuz reconsider his decision to drop all charges against Katsav in the case of Beit Hanassi Aleph. The High Court did not rule, and was not authorized to rule, on the question of whether Katsav was guilty of the original charges contemplated by the state. It is not a criminal court and does not see evidence or hear testimony. The court's job in this case was to determine whether Mazuz' decision to sign the plea bargain fell within the range of reasonability, a much narrower task in one sense, and a much more difficult one in another, given that it cannot judge the merits of Katsav's decision on the basis of the evidence. The court has rarely intervened in a decision by the attorney-general to prosecute or close the investigation against a suspect. According to the Criminal Procedure Law, the state may prosecute a suspect if the evidence is sufficient to charge him, unless it believes that the trial is not in the public interest. Since the High Court may not see evidence, it can only determine that a decision not to prosecute (or to prosecute) is unreasonable if it does not properly serve the public interest. At first, in this case, it appeared that the only way the court could reject the plea bargain was by addressing the evidence, since with regard to both the Tourism Ministry Aleph and the Beit Hanassi Aleph, the state claimed it had based its decisions on the evidence or lack of it. Essentially, Rivlin, Procaccia and Grunis accepted this position. According to Procaccia and Grunis, the attorney-general's discretion in such cases is very broad and, therefore, the court had to restrain itself. As a result, the attorney-general's decision did not fall beyond the boundaries of reasonability and there was no reason to reject it. Rivlin agreed with the principles advanced by Beinisch in her argument, but nevertheless did not find a legal reason for rejecting the plea bargain. Levy, who wrote a 70-page decision that included the background to the petitions, wrote that in a case where the evidence was so balanced as to make it difficult for the state to decide whether to prosecute, the importance of the public interest increased. He gave a number of reasons for determining that putting Katsav on trial was better for the public interest than reaching a plea bargain agreement. His arguments included the fact that a public trial would provide a better chance for the truth to emerge, would signal that society took sexual crimes seriously, and would cleanse the office of the presidency. "In light of the above," wrote Levy, "I conclude that the attorney-general must reconsider bringing the matter of Tourism Ministry Aleph before a court. This result is the only one possible in accordance with judicial law. Like all decisions of this court, it seeks to fulfill the basic principles of justice." Beinisch's decision covered another 60 pages of the 200-page decision. She wrote that the description of Katsav's behavior toward Tourism Ministry Aleph in the plea bargain indictment did not reflect in any way the core of the evidence against him, as demonstrated by the draft indictment and by statements made by the prosecution to the court. Furthermore, there was no relationship between the acts described in the plea bargain indictment and the relatively serious charge of "committing an indecent act without consent using pressure." "The main flaw in the plea bargain indictment is the fact that the description of facts that the prosecution attributed to Katsav differs significantly from the prima facie evidence in the investigation file, as it emerged in the state's arguments before us," wrote Beinisch. "Under the circumstances, an extreme gap was created between the incriminating testimony of Tourism Ministry Aleph, who, in her testimony to police described acts of rape and grave indecent acts including touching of intimate parts by gross and manipulative exploitation of power and position - testimony which the attorney-general found credible - as opposed to the facts in the plea bargain indictment that described acts on the lowest rung of sexual misconduct, without touching intimate parts, without a clear sexual element and without a description of substantial pressure applied by Katsav." According to Beinisch, "this gap caused serious damage to the message that the attorney-general wished to convey with regard to deterrence and law enforcement against sexual criminals, and particularly regarding people with power and authority." According to Beinisch, Tourism Ministry Aleph was the chief victim of the plea bargain.