"How many new town squares do we have to build so we can erect enough scaffolds for the media?"
The Supreme Court justice who was fuming about press coverage at a social function two weeks ago in Jerusalem was referring to the pasting meted out to Attorney-General Menahem Mazuz over the controversial plea bargain with former president Moshe Katsav. But as the Supreme Court convenes Tuesday to announce its ruling in the various petitions against the plea bargain, exasperation with the media will be only one consideration.
This was never going to be a ruling based solely on legal reasoning; weighing that aspect alone, it seems highly unlikely that there are sufficient grounds to strike down the deal. It's the kind of arrangement reached regularly, and Mazuz can and has argued that the bottom line is that Katsav admitted to indecent acts and resigned the presidency and is therefore a convicted sexual offender.
Yes, taking the case to trial under the original charges, rape included, could have yielded much more, but it also could have resulted in a humiliating defeat for the state prosecution that would have transformed Katsav into a martyr in the eyes of many Israelis. Mazuz's bullish attitude to the case subsided after attorney Avigdor Feldman joined the defense team; that's when the attorney-general began to fear he might lose.
The panel of seven justices, some of them - including Chief Justice Dorit Beinisch - themselves former public attorneys who used cut these kind of deals, will certainly sympathize with Mazuz's predicament.
But there are other matters they will also take into account, to various degrees, as they weigh their decision.
First and foremost, there are the potential repercussions - for the legal establishment and its standing, and for future complainants in sexual assault cases.
There are direct potential repercussions for Mazuz's career, too: With at least three more years to run in his post, a verdict canceling the plea bargain could destroy his prestige, undermining his authority and credibility to make decisions in complex cases involving Prime Minister Ehud Olmert and other senior government figures. Many legal observers believe that were the Supreme Court to strike down the plea bargain, Mazuz might feel he had no course but to resign. Do the Supreme Court justices want such a result?
On the one hand, Mazuz is no friend of Beinisch. In the early days of his tenure, he overturned the decision of her closest friend, former state attorney and now fellow Justice Edna Arbel, to indict then prime minister Ariel Sharon over the "Greek Island" case. At a press briefing to announce this reversal, he lambasted the culture that had flourished in the State Attorney's Office during the reign of Beinisch and then Arbel. But on the other hand, Mazuz has now been forced into Beinisch's camp to some extent by Justice Minister Daniel Friedmann. His whirlwind of reforms, which threaten to compromise the standing of both the Supreme Court and the attorney-general, have placed Mazuz and Beinisch shoulder-to-shoulder.
The justices' ruling, to a large extent therefore, will amount to a decision over Mazuz's future. If they believe that he is now more valuable to them as an ally, or if they fear that, after his resignation, Friedmann will push through the appointment of a hostile candidate, this could constitute a significant factor in their upholding his decision. By contrast, however, they might conclude that the Katsav controversy has so damaged Mazuz that he has become a liability to the legal establishment.
But it's more complicated than that. With Beinisch under siege from a number of quarters, it's not at all clear which decision would strengthen the Supreme Court's standing. A ruling in favor of Mazuz might strengthen him and his personal staff, but would anger a significant number of younger public attorneys involved in the Katsav investigation who disagree with the plea bargain and feel that Mazuz made no effort to explain it to them. The justices are also well aware of the mounting criticism of Mazuz within legal circles, not so much over the deal itself, as over the way he publicized the draft indictment six months ago, necessitating so public and embarrassing a climb-down.
It's also not at all clear what the public now wants. Polls suggest a clear majority against the plea bargain, and the demonstration in Tel Aviv a week and a half ago was a largely spontaneous show of widespread concern. But these protesters are ultimately people who can usually be relied upon to support the legal establishment,and the justices might speculate that even if they disappoint such people this time, they won't be lost. If they choose to intervene, though, a significant minority who already strongly object to the court's activism and are not that convinced of Katsav's guilt will be further incensed.
At the same time, the tide might be turning in the public mood as well. The massive media campaign waged on behalf of the original complainant, A. of Beit Hanassi, by her high-visibility lawyer, Kinneret Barashi, and especially A.'s traumatic pixellated press conference on the day the plea-bargain was announced, are beginning to look like overkill. Their insistence that her allegations be added to Katsav's indictment are starting to look like a desperate attempt by an ambitious young attorney for some more time in the limelight.
As more and more sordid details are coming out from both sides, many people may be less certain about what to think, or, more crucially, whom to support. Since Barashi and A. are also petitioners, the Supreme Court ruling will likely contain the justices' opinion as to whether Mazuz was right in dropping A. altogether from the indictment. This could have a major effect on the way women complaining of sexual assault choose to conduct their cases in the future.
All in all, the seven justices have a tough call to make. It will be fascinating to see whether they manage to reach a unanimous decision and to read their conflicting reasoning if not.
The immediate stakes are extremely high. But Tuesday's outcome will also offer valuable insight as to the direction in which the Beinisch court is headed.
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