Analysis: Did the state give Beinisch the right answers?

Justice peppered the state's representative with questions about Mazuz's decision.

By DAN IZENBERG
barashi + amir 224 (photo credit: Ariel Jerozolimski [file])
barashi + amir 224
(photo credit: Ariel Jerozolimski [file])
It is anyone's guess what ruling the High Court of Justice will hand down in the case of the six petitioners who protested Attorney-General Menahem Mazuz's decision to drastically depart from the draft indictment he had in mind in January against former president Moshe Katsav. Supreme Court President Dorit Beinisch made clear from the beginning of the hearing what troubled her about Mazuz's decision and peppered the state's representative, Deputy State Attorney Shai Nitzan, with questions throughout his address to the court. Her questions boiled down to the following: Why had Mazuz made such a drastic change between January 23, when he announced the charges the state was thinking of making against Katsav, and June 28, when he announced that all of the charges regarding the "Beit Hanassi Aleph" (the first Aleph) had been dropped and those regarding the "Tourism Ministry Aleph" (the second Aleph) had been dramatically watered down? The second question had to do with the level of certainty of a conviction that Mazuz believed was required to justify filing a criminal indictment. The third was whether the final indictment reached in the plea bargain contained the "core" of the allegations against Katsav, that is, that he had committed sexual crimes. Regarding the first question, Nitzan said the evidence in the case of the first Aleph would not stand up in court and that her version of her relationship with Katsav was false. As for the second Aleph, Nitzan said the state believed she had been sexually exploited by Katsav but that the evidence regarding the allegations that he had raped her was shaky. Before Mazuz could decide whether to go ahead with the original indictment or close the file altogether, Katsav's lawyers proposed the plea bargain, thereby saving him from an extremely difficult choice, Nitzan added. It is hard to determine whether these answers satisfied the court. Since Nitzan testified that the former president's lawyers had not brought any new evidence in the case of the first Aleph, and little new evidence in the case of the second Aleph, it is obvious that the prosecutors were analyzing virtually the same facts before the first and second indictments. Nitzan told the court the hearing with Katsav's lawyers had changed the prosecution's mind, but did very little to explain how or why. Nonetheless, it is hard to imagine that the court will accept the petitions on these grounds. Beinisch insisted over and over again that the High Court would not consider the evidence, since that was not its job. Indeed, the court has never overruled a decision by an attorney-general regarding a criminal investigation on the question of the strength of the evidence. Regarding the second question, as to what degree of certainty of conviction the prosecution must have in order to indict, Beinisch did not challenge Nitzan's reply and appeared to accept it. The most problematic of Beinisch's three questions was the last one. She told Nitzan: "There is a principle in judicial ruling that when you make a plea bargain, the core facts of the allegations must be included. In this case, the final indictment does not even mention that Katsav touched the second Aleph in intimate places. All it says is that he touched her knee." Nitzan tried to persuade Beinisch that the description of the facts in the indictment included much more serious sexual acts. For example, he said, the indictment accused Katsav of "routinely asking Aleph to stand beside him and routinely patting her and holding her around her waist." It is very possible that the fate of the petitions - and perhaps the fate of the entire Katsav affair - will depend on whether Nitzan provided convincing orders to the court or not. Regarding his statements that the evidence against Katsav was insufficient in the case of the first Aleph and problematic in the case of the second, Nitzan has an advantage since the court made it clear it would not look at the evidence itself. As for the indictment, however, the court has read the document and can judge for itself whether or not it is acceptable in keeping with judicial law. Furthermore, there would be nothing extraordinary in terms of the law or judicial precedent if it ruled that that the indictment violated judicial law and ordered Mazuz to change it. But as the state made clear during Tuesday's hearing, it takes two to tango. Katsav's lawyer, Zion Amir, told The Jerusalem Post that his client would not accept any change in the plea bargain indictment. He said that if Mazuz was ordered by the court to demand changes, the defense and the prosecution would meet again - this time in criminal court - should, indeed, Mazuz decide to go back to the January draft indictment and bring it to court. But doing so would be a problem for Mazuz, since he has already said publicly that it would be difficult to prove the rape charges against Katsav because of the contradictions in the second Aleph's testimony, which the attorney-general has already described in great detail. Meanwhile, Katsav's lawyers and the petitioners are calling on the court to lift a gag order preventing publication of the testimony of the women who complained against Katsav to the police. In doing so, both sides are appealing above the head of the High Court of Justice to the court of public opinion. One side believes the evidence will convince the public that Katsav was an incorrigible sex offender, while the other believes it will prove that the women who complained against him were not telling the truth. Even if the court decides to lift the gag, it will have no impact on the court's ruling. They have already seen the censored details and will take it into account in their ruling.