In an unprecedented decision, the High Court of Justice on Tuesday agreed to hear evidence from the case against former president Moshe Katsav that supposedly led the state to reach a plea bargain with the defense and drop all charges regarding Katsav's relationship with the "first Aleph," a key witness. The decision came at the end of a grueling hearing that lasted nine hours. During that time, the court heard six petitioners, who asked that the court issue an interim injunction that would prevent the state from filing a watered-down indictment against Katsav to the Jerusalem Magistrate's Court along with the plea bargain.
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According to the request, the order would be in force until the court ruled on the core of the petitions to reject the plea bargain and indictment, which were drawn up by Attorney-General Menahem Mazuz in coordination with defense lawyers Avigdor Feldman and Zion Amir.
A panel of five justices, headed by Supreme Court President Dorit Beinisch and including Eliezer Rivlin, Ayala Procaccia, Edmond Levy and Asher Grunis, presided over the hearing.
Almost all the justices seemed critical of Mazuz's decision and mercilessly grilled his representative, attorney Shai Nitzan, head of the Special Tasks Section of the State Attorney's Office.
The questioning, spearheaded by Beinisch, was so fierce that on one or two occasions, Nitzan, a veteran Justice Ministry attorney with years of experience representing the state in High Court petitions, shouted at the justices while replying to their questions.
The court made it clear that in its written response to the petitions, the state had failed to explain why Mazuz had undergone such a drastic change of mind between his January announcement of the charges the state was considering filing pending a hearing for Katsav's lawyers, and the plea bargain and indictment he signed five months later.
As Nitzan's arguments drew to a close after several hours of pleading, Procaccia told him, "I did not find a satisfactory answer for the dramatic upheaval in the charges."
The indictment Mazuz announced on January 23 included one (later two) counts of rape, one count of committing an indecent act without the consent of the victim, and sexual harassment, all pertaining to Katsav's relationship with the "second Aleph." The charges regarding the "first Aleph" included forbidden sexual intercourse by exploiting authority, and sexual harassment. Charges of sexual harassment were also filed in the cases of two other women.
In the final indictment, all of the charges involving the "first Aleph" were dropped. The charges involving the "second Aleph" were reduced to committing an indecent act without consent by using pressure. Shai argued that in the case of the "first Aleph," the evidence against Katsav had been shaky in the first place, and many of Mazuz's advisers had been against indicting him all along. The doubts had continued to grow until the prosecution decided to drop the case.
Regarding the decision to accept a plea bargain and substantially lesser charges in the case of the "second Aleph," Nitzan gave several reasons:
The evidence had weakened between January and June, and the chances of winning a conviction had become less certain than they had originally appeared;
The hearing, including the arguments and new evidence presented by Katsav's lawyers, had influenced the prosecutors.
The fact that the charges against the "first Aleph" had been dropped meant that the "second Aleph" was the only woman who had serious complaints against Katsav. The state felt the court would have been more receptive to believing her story had another witness made similar complaints against the former president.
In return for the plea bargain, Katsav would immediately resign;
Katsav had already been punished. His reputation was tarnished and he had lost all his popularity.
But the justices were not satisfied with these arguments. Beinisch repeatedly stressed that the state, in its written response to the petitions, had told the court that even after the hearing, it was still seriously considering filing the original charges against Katsav.
She referred to one paragraph in the response, in which Nitzan had written, "Closing such a grave file, which had substantial, even if borderline, proof of serious sexual crimes, was a very problematic option."
Beinisch took this statement to mean that the state did have sufficient proof to convict Katsav. Indeed, the prosecutors had told Katsav's lawyers that if they did not reach a plea bargain, they would charge the former president in accordance with the original indictment.
Every time Nitzan referred to the proof as "very borderline," Beinisch immediately corrected him by pointing out that the word "very" had not appeared in the state's response.
She charged that he was deliberately trying to make the state's case sound weaker than it actually was.
Furthermore, she and Procaccia questioned whether or not the state had sufficiently taken into account the public interest in such a trial, given that Katsav had held such a high public office.
"When it comes to assessing the public interest, one has to take into account the nature of the complaints, the type of crimes, the number of women who complained and the high office of the suspect," she said.
Whenever Nitzan referred to the fact that Katsav had been punished by resigning from the presidency and had personally suffered from the case, Beinisch scoffed.
"He resigned two weeks before the end of his term in office," she pointed out. "He has not been punished for his deeds."
In the final analysis, said Beinisch, the question was whether or not Mazuz had struck a reasonable balance between the quality of the evidence and the degree of public interest in holding a trial.
Nitzan replied that the only way the court could judge the nature of the evidence was by seeing it. Beinisch said that she was not prepared to study all the evidence, but would see that part of it which allegedly explained the drastic change of mind the state had undergone.
The evidence will be heard behind closed doors. Each of the lawyers representing the first and second Alephs will participate in the part of the hearing dealing with their client. The lawyers will not be allowed to tell their clients what the evidence is. After the closed-door hearing, Feldman, representing Katsav, will respond to the petitions.
The hearing will be held soon, said Beinisch. The court's decision on the request for an interim injunction will be handed down shortly afterwards.