Legal Affairs: From a sex scandal to a judicial one

Whatever Mazuz's reasons for his about-face on Katsav, the public isn't buying the plea bargain.

mazuz 298.88 (photo credit: Ariel Jerozolimski )
mazuz 298.88
(photo credit: Ariel Jerozolimski )
As this article is being written, the public is awaiting the state's response to six petitions to the High Court of Justice against the decision of Attorney-General Menahem Mazuz to reach a plea bargain with former president Moshe Katsav. It is unlikely, however, that the response will shed light on the dramatic change of mind that Mazuz underwent between January 23, when he announced the details of a very harsh draft indictment including charges of rape and having illegal intercourse with consent, to the far less severe indictment that he intends to file in the Jerusalem Magistrate's Court. The bottom line is that during the intervening five months, Mazuz decided that there was too much of a chance that the testimony gathered by police - and particularly the testimony of the key women who complained against Katsav - would not stand up in court. Since the public has not seen the evidence, and will probably never see it, it cannot reach a meaningful decision of its own regarding Mazuz's ultimate decision. In the past few days, it appears that someone is trying to help Mazuz - not necessarily for the sake of the attorney-general but, more likely, for the sake of Katsav. Several media outlets have been publishing selected segments from the testimony taken by police during the investigation, meant to demonstrate the alleged contradictions in the testimony of the "second Aleph" from the Ministry of Tourism and the allegedly dubious behavior of the "first Aleph" from Beit Hanassi. These tendentious leaks may raise questions about the reliability of these women. But the fact is that they were chosen precisely for this purpose, and were selected from an ocean of testimony. Very few people today doubt that Katsav abused his high office time after time to go after attractive women who worked for him. Even as cautious a person as Mazuz recently described him as a serial sexual offender. For the average person who is outraged by the former president's conduct, this should be enough to put him on trial, slap him in jail and throw away the key. But, of course, for better and for worse, the law does not work that way. It is much narrower and more confined than the world outside of it, restricted by rules of procedure and evidence and by the letter of the law itself. The legal world - including the prosecution, the defense and the courts - knows and plays by these rules, but they are essentially foreign to those outside the profession. That is another reason for the yawning divide between the prosecution and large segments of the public over Mazuz's decision. Much of the public believes that Katsav's behavior was morally abominable, if not worse, and wants to see him punished. This makes common sense. To see him getting away with relatively minor charges (even though Mazuz described them as a mountain, rather than a molehill) and no time in jail, is an affront to its intuitive sense of justice. But the truth is that opening the evidence to the public would do nothing to resolve the controversy. It would be difficult for anyone to make sense of the sea of testimony, let alone those without legal training. After all, Mazuz himself, it turns out, had a hard time dealing with it. OBVIOUSLY, NO one knows for sure how the High Court of Justice will rule on the six petitions. In cases such as this, it usually rules in accordance with precedent, and the precedent is that the court does not intervene with a decision made by the attorney-general on whether or not to close a criminal investigation without filing charges, or to file charges of a certain type, based on the evidence of the case. On the other hand, courts also establish new precedents, based on the merits of an individual file, or because of evolving social values. This is one factor that Mazuz's critics must be taking into account in the public demonstrations, protest articles, and radio and television interviews they have conducted over the past week. They want to convey to the High Court of Justice that when it comes to sexual misconduct towards women, the times have indeed changed, and that the yardsticks for determining what criminal misbehavior entails must be changed accordingly. Still, it is hard to imagine that the court will accept the petitions. In order to do so, it would have to impose its own uninformed opinion on Mazuz's informed one. After all, the court has not seen the evidence upon which the attorney-general made up his mind, and it is not part of its duties ever to see evidence. The only possible justification the court might have for overruling Mazuz is the huge gap between the attorney-general's initial decision in January and his final decision in June. There is clearly something disturbing about such a significant turnaround. But even if the court finds it "extremely unreasonable," it would still take an unduly large leap of faith for the justices to determine that Mazuz was right the first time and wrong the second. Whether the dimension of Mazuz's change of mind is enough for the court to overrule his final decision remains to be seen. From the public's point of view, however, the fact that the attorney-general could change his mind to such an extent should be disturbing in its own right. Mazuz, admittedly, was not in an easy position in January. The police had urged him to indict the former president on serious charges, including rape. Within his own team of trusted advisers, there were those pulling him in the same direction, while others (a minority) thought he should settle for lesser charges. Furthermore, Mazuz was under time pressure. He wanted to make certain that if he decided to charge Katsav, the indictment would be filed in time to force the former president to resign. Neither he, nor anyone else, wanted Katsav to go down in history as having completed his full term in office when it had turned out that he was a criminal. Since the attorney-general had to grant a hearing to Katsav's lawyers before he could decide whether to indict him or not, he had to come to an initial decision relatively quickly. Having said all that, it looks either like the doubts he originally had continued to gnaw at him - despite the fact that he had publicly announced the grave suspicions against Katsav - or that the arguments of Katsav's lawyers were stronger and more legally insightful than his, and persuaded him that he had been wrong. Either way, it is not what one would expect from the top legal officer in the land. One would hope that the attorney-general would not jump the gun and announce to the public things he was not yet sure of, or that he would prove he was as good a lawyer as those from the private sector that he had to confront. Plainly Mazuz made a mistake. The mistake was not necessarily in his final decision. But it lies somewhere along the timeline between January 23 and June 28. And we still do not know, nor probably ever will, what precipitated it.