Attorney-General Menahem Mazuz drastically altered the charges against former president Moshe Katsav because of "an evolutionary process of continuous erosion in the evidence required [for a conviction] during the months of working on the case," the state told the High Court of Justice on Thursday. The statement was included in a 48-page response to six petitions, including two filed by the "first Aleph," against the plea bargain reached last week by the state and Katsav's attorneys, Zion Amir and Avigdor Feldman.
Court removes gag order on Katsav case
Mazuz wrote that even in the period leading up to his announcement on January 23 of the projected charges against Katsav, including rape and forbidden intercourse with consent and involving four women, there were already problems with the evidence which would have made it difficult to obtain a conviction. One example cited was the fact that the "second Aleph," who testified that Katsav had raped her nine years ago, never mentioned the incident to anyone throughout all those years.
Before and after the hearing, until the eve of the plea bargain, police continued to gather evidence, Mazuz explained. During the hearing, Katsav's lawyers provided new evidence and this, too, was investigated.
"Regarding some matters, the new material made the evidence against Katsav more problematic," said Mazuz. The new material presented by the lawyers "did not turn everything upside down, but added to the problems that were already there."
At this point, the prosecution had not made up its mind whether to file the original charges against Katsav in the case of the "second Aleph."
"It was certain that the evidence had eroded to some degree, the 'reasonable chance of obtaining a conviction' had been weakened and the case had become borderline," he explained.
It is under these circumstances, wrote the state's representatives, attorney Ran Nazri, Mazuz's senior assistant, Dina Zilber and Shai Nitzan, head of the Special Tasks Section of the State Attorney's Office, that the court must determine whether the state's decision to accept a plea bargain was reasonable or not.
Mazuz also argued that the state may change its mind after the hearing.
"The position that has been reached before the hearing reflects an advanced stage in the assessment of the case, but it is not the state's final position," he said.
After the erosion of the evidence, the state decided to omit the "first Aleph" from the indictment. This affected its position regarding the "second Aleph," Mazuz told the court. The two "Alephs" were to have been the key witnesses and each one's testimony was supposed to strengthen the other's.
"When we decided not to include the allegations of the 'first Aleph' in the indictment, we estimated that this would substantially increase the difficulty the court would have to accept the evidence regarding the allegations of the 'second Aleph,'" the attorneys wrote.
Mazuz and his attorneys also addressed the argument of some of the petitioners that the prosecution's about-face had harmed public confidence in the law enforcement system.
"We hope that the public will be convinced that the law enforcement system in Israel makes objective and fair decisions in keeping with its professional considerations and according to the evidence it has, rather than surveys or public pressure or the revulsion that this or that figure arouses in the public," said Mazuz.
"Public confidence in the system is preserved when it is convinced that the prosecution is not locked up in a conception and that it checks itself unceasingly until the last moment before making its decision."
Mazuz added that public criticism of the decision was based on "the bottom line," that is the decision to submit a watered down indictment within the context of a plea bargain. However, it was impossible for the public to properly assess that decision without reading the evidence, he asserted.
Mazuz strongly rejected charges that he had been lenient with Katsav because of the high office the former president held.
"On the contrary," said Mazuz, "I initiated the police investigation even though not a single woman had lodged a complaint."
In response to a petition by the "first Aleph" demanding that Mazuz cancel the plea bargain, the attorney-general raised the same arguments that he made during a Meet the Press program last week on Channel 2 television. In the final analysis, he said, the state could not determine the nature of the relationship between her and Katsav. This was because of the diametrically opposite versions supplied by the "first Aleph" and the president, the internal contradictions in the "first Aleph's" testimony, and the conflicting testimony of other witnesses who knew about the relationship.
Earlier in the day, the High Court agreed to lift a court order banning publication of the "first Aleph's" petition, which included details of Katsav's alleged sexual offenses against her.
Most of the information included in the petition was a repeat of the allegations she made during a press conference last week. However, she added in the petition that one of Katsav's associates, Uri Yoeli, had met with her in the lobby of the King David Hotel in Jerusalem and suggested that she become Katsav's mistress. She said Yoeli had told her it would be worth her while because she would have "trips abroad and advancement at work."