Did police commit misconduct with state witnesses in Bibi case?

New questions about one of these state’s witnesses – or in this case a potential state witness who did not pan out to be one – were raised at Sunday’s hearing before the Jerusalem District Court.

Israeli prime minister Benjamin Netanyahu at the weekly cabinet meeting on June 28, 2020. (photo credit: OLIVIER FITOUSSI/FLASH90)
Israeli prime minister Benjamin Netanyahu at the weekly cabinet meeting on June 28, 2020.
(photo credit: OLIVIER FITOUSSI/FLASH90)
While there is a range of state’s witnesses in the three different corruption cases against Prime Minister Benjamin Netanyahu, there are three such witnesses in particular regarding whom there are serious questions of possible police misconduct.
New questions about one of these state’s witnesses – or in this case a potential state’s witness who did not pan out to be one – were raised at Sunday’s hearing before the Jerusalem District Court.
Iris Elovitch’s lawyer, Michal Rozin, raised with the court the issue of whether the police may have infringed on the rights of her husband, defendant Shaul Elovitch, and their son, Or Elovitch.
Shaul is at the heart of Case 4000, the Bezeq/Walla Affair, since he owned Bezeq, which Netanyahu allegedly purposely favored in setting communications policy in exchange for more positive media coverage from the Walla news site, which Shaul also owned.
Shaul’s wife and son were allegedly involved with this media bribery scheme, with his wife also being a defendant in the case with Netanyahu, and their son a defendant in a separate but related corruption case that is expected to be tried in Tel Aviv District Court.
In September 2019, Channel 12 reported that there was a police recording of Shaul and Or speaking about the possibility of switching lawyers.
Channel 12 implied that the police had pressured Or into trying to get Shaul to switch lawyers so that he would agree to turn state’s witness against Netanyahu.
Furthermore, Channel 12 implied that the Elovitches’ attorney-client privileges might have been violated by their being recorded.
Attorney-General Avichai Mandelblit said that Or Elovitch’s idea about switching lawyers was his own, and not planted by the police.
Rozin said on Sunday that, based on a review of the transcript of the recording, it appeared that the police may have misled Mandelblit about how they pressured Or.
IN CONTRAST, The Jerusalem Post has recently learned that although Mandelblit himself would not have listened to the recording, the prosecution team would have listened to it in its entirety.
Having listened to the entire recording – and not merely relying on the police’s account – they concluded unequivocally that Or was the party that raised the idea, and submitted an internal legal brief to Mandelblit to that effect.
The Post also understands that once Or raised the idea, the policewoman interrogating him did encourage him to cooperate with the probe and possibly become a state’s witnesses, but she did not make any push for the Elovitch family to change lawyers.
However, as mind-boggling as it might seem for Or to have raised all sorts of scenarios on his own, one must keep in mind that the police can legally tell suspects that if they do not cooperate and switch sides, they will face charges and jail time.
Knowing this might have been enough for Or to toss out all sorts of possibilities.
Mandelblit has said that the Elovitches were recorded while they were under arrest and that during this period, they did not have a specific right to privacy for their conversations.
Finally, Mandelblit has said that at no time was the attorney-client privilege violated, as no conversations with actual lawyers were recorded, only conversations by the Elovitch family members about their lawyers.
Despite these justifications, the attorney-general did leave open the possibility of some kind of police wrongdoing, but the Post’s impression is that, to date, the review performed of the incident has not led to any findings of misconduct against the police.
THE NEXT state’s witness – who lawyers for Netanyahu and other defendants have said was extorted by the police in order to get him to manufacture false accusations against the prime minister and others – is former top Netanyahu aide Nir Hefetz.
There are a number of accusations against the police for their treatment of Hefetz to get him to turn on Netanyahu regarding Case 4000, but the most serious was raised by then-justice minister Amir Ohana at the Knesset plenum in November 2019.
Ohana has been accused of violating a gag order on the issue, such that this report by the Post will summarize only part of his charges.
During his speech, Ohana said that the police in February 2018 used a third party – with whom Hefetz allegedly had a romantic connection, despite being married – to extort him to become a state’s witness, even though nothing about their connection had anything to do with the Netanyahu case.
The stress and potential embarrassment this issue caused Hefetz was so significant that in November 2019, he yelled at the judges “You can just kill me!” during a hearing about whether to remove the gag order.
Hefetz stomped around the hallways of the courtroom trying to escape a train of media attention, with a deep look of anger and fear on his face.
The prosecution told the court at the time that almost all of the information under gag order had nothing to do with Netanyahu, and that parties who wanted the information sought it only to intimidate Hefetz, not to testify.
The Post has learned that the third party was not brought by the police for the primary purpose of pressuring Hefetz to become a state’s witness. Rather, the person was brought to the police station just as Hefetz’s wife was brought there, as part of standard police tactics of trying to learn everything relevant about a suspect.
Police intelligence on the third party showed a close relationship and that interrogating the person could help in acquiring relevant electronic evidence about Hefetz and Case 4000. The Post has also learned that there was a court-signed warrant for searching the person’s residence.
Law enforcement officials will need to admit at trial, the Post understands, that once the third party was at the police station, they did instigate a sort of confrontation between that person and Hefetz.
Their narrative will be that this was legal since they are allowed to try to send the message to a suspect that they know everything about him in order to convince him to admit the truth and his role and others’ roles in crimes being probed. In other words, they will portray the confrontation as an exercise in getting to the truth.
They will admit that this experience may have been unpleasant for Hefetz, but they will say that interrogations are unavoidably stressful, and that it was legal since it was not specifically directed at flipping him to become a state’s witness.
Furthermore, they will note that Hefetz waited another two weeks after the confrontation with the third party before he decided to turn state’s witness.
Finally, law enforcement would point out that Hefetz has said that when he turned state’s witness, it was not because of this third party, but because he concluded that it was in his interest to reveal the truth – likely, to avoid jail time.
But did law enforcement officials fully signal to Hefetz that they were only seeking the truth, or might the use of the third party have had all kinds of not so veiled implied threats connected to it?
THE FINAL state’s witness regarding whom there are allegations of police misconduct or open coercion is Ari Harow, another former top Netanyahu aide.
Harow is a state’s witness mostly for Cases 1000 and 2000, the Illegal Gifts Affair and the Yediot Aharonot/Israel Hayom Affair.
Unlike Hefetz, Harow has made no accusations against Netanyahu, but has filled out the picture for police about details that help to connect the dots in those cases.
There are two main allegations against the police regarding their treatment of Harow.
One is that they crossed the line with a surprise arrest of him at 5 a.m. at Ben-Gurion Airport without letting him go home. The other is that they concocted a second and bogus separate case against him just for the sake of pressuring him to turn against Netanyahu.
At trial, the Post has learned that the prosecution will say that Harow was not arrested but allowed himself to be taken from the airport voluntarily for questioning. It will also claim that he was not completely surprised by the incident and that there had been prior messaging of some kind between the sides.
Regarding whether his testimony is true and whether the separate case against him was manufactured, the prosecution will say that a full view of the interrogation transcript will show that he was calm. It will say that he was far more disoriented during his first interrogation a long time prior to that.
Based on this, the prosecution says that when he decided to become a state’s witness, it was based on a calm and calculated decision about what was in his own self-interest, given the serious separate case he might have faced individually.
At trial, Harow is expected to reject this narrative.
While he will say that he has always told the truth, he will also likely assert that he cut a deal because he felt overwhelmed by the brute and shocking hammer that the state brought down on him.
He is expected to say that even if no one put him in handcuffs at the airport, he was shocked and publicly embarrassed to be “greeted” by two police officers, who told him to come with them and then took him away in their police car.
Harow will probably argue that he did not feel he had any choice in the matter, or that he did not feel they would let him go home to see his family, despite his having just returned from a trip abroad.
The former top aide to Netanyahu will likely discuss the impact of this public embarrassment in front of a number of people he knew who witnessed the incident and which coincidentally was immediately leaked to the media, along with other strong-arm measures.
He will say that these measures, usually reserved for crime lords and not for persons suspected of gray-area conflict of interest violations, were what made him feel that he had no choice but to cut a plea bargain to get the pressure to end.
IN ALL three of these cases, there are also questions about what the police might have said to each state’s witness during various interrogation recesses. Sometimes there are threats and implications that do not get recorded, but which can impact a person’s mental state and decisions.
With other key state’s witnesses, like former top Netanyahu aide Shlomo Filber, the defendants will accuse them of lying, but there will not be allegations of police misconduct per se.
Although the issue of state’s witnesses has been heavily politicized, it needs to be kept in mind that such witnesses are always a tricky business. They are almost invariably lawbreakers and liars, which is why Israeli law does not allow the court to convict someone solely on the basis of evidence provided by state’s witnesses.
Shmuel Duchner, the state’s witness who brought down former prime minister Ehud Olmert, freely admitted to the court that he was a liar and a cheat, neck-deep in corruption.
And there are public cases where the police have gone too far in interrogations, leading courts to acquit defendants and to declare as tainted evidence brought to prosecute them.
At the same time, there are some cases where people in power are simply not reachable without flipping one of their lieutenants to testify against them in exchange for an immunity deal.
Ultimately, the three Jerusalem District Court judges will need to decide, in each of the above three instances, whether the police acted appropriately in figuring out ways to make a case against Netanyahu, or whether they crossed the line, and their own actions could help with his acquittal.