Legal Affairs: Whose court is the ball in now?

After the withdrawal of the plea bargain, the state and the defense have returned to the poker table. The problem for the state is that it has already shown its cards.

Critics of the plea bargain between the state and former president Moshe Katsav who rejoiced this week at its termination and have been calling for a return to the original draft indictment are in for a disappointment, according to most legal experts. How big a disappointment depends on the decision of Attorney-General Menahem Mazuz and the top echelon of the State Attorney's Office, who are currently consulting on the charges to be included in the new indictment that will be filed against Katsav. Whatever the outcome of these consultations, it is almost certain that Katsav's announcement in Jerusalem Magistrate's Court that he wanted to "fight to prove his innocence" will not bring the case back to square one, as many had hoped. Too much water has passed under the bridge since January 23, 2007, when Mazuz made his dramatic announcement that he had prepared the draft of an indictment charging Katsav with sexual crimes against four women who worked for him. These included one rape charge (later raised to two) in the case of Tourism Ministry complainant Aleph and a charge of "forbidden intercourse by exploiting his authority in employment or service," in the case of Beit Hanassi complainant Aleph. Mazuz's announcement five months later that he had reached a plea bargain with Katsav according to which almost all of the grave charges against him were dropped, and that all that was left of them was an "anorexic" indictment - in the words of Supreme Court President Dorit Beinisch - triggered nationwide outrage. But it wasn't actually the plea bargain that undermined the state's maximalist case. Ironically, it was the petitions filed in the High Court of Justice against the plea bargain and in favor of the original draft indictment that made the prosecution's decision to abandon it almost certainly irreversible. The reason for this is that during the hearings on the petition, in which Beinisch and other justices questioned the state mercilessly on why it had changed its mind so drastically, Mazuz was forced to defend his decision with all his might. In doing so, he became as outspoken a critic of the original draft indictment as Katsav's lawyers, and gave away assessments of the evidence regarding the two Alephs that seriously compromise his position today. For example, with regard to Beit Hanassi Aleph, the state wrote in its summary arguments against the petitions: "After studying, reading and hearing all the testimony and evidence in the case, it emerges that Beit Hanassi Aleph's testimony is riddled with internal contradictions, some of them regarding central and critical matters. Furthermore, almost all those points that are tangential with the testimony of others reveal additional contradictions between her testimony and theirs. All of these contradictions seriously take away from the degree of credibility that we can attribute to her version of events... After studying all the evidence, we reached the conclusion that it would be hard to prove in a criminal trial that the element of 'exploiting his authority' and of lack of genuine and freely given consent on the part of Beit Hanassi Aleph actually existed." In another response, the state wrote that "the prosecution authorities reached the conclusion that they could not determine that the case of Beit Hanassi Aleph passes the threshold of a 'reasonable chance of conviction.'" The state did not question the basic credibility of Tourism Ministry Aleph, but explained to the court why the case against her was so problematic that it opted for the plea bargain. "In order to [charge Katsav with rape] it is not enough to prove that there was an intimate relationship, but that the acts of intercourse and the indecent acts were carried out using force. But the evidence regarding the use of force is borderline," the state told the court. It added that Tourism Ministry Aleph repeatedly said she could not remember many of the facts during the "critical moments [of the alleged rape acts]... This could create objective problems in obtaining a conviction on the basis of her version of events. Furthermore, in looking at the entire picture, there is evidence that could cause substantial damage to the credibility of the witness and this factor, too, could cause real difficulty in accepting her version of events and proving the element of force." The state then went on to list six other points which weakened Tourism Ministry Aleph's case. In sum, it argued that "these difficulties lead to the conclusion that it will be very hard to obtain a conviction in this matter." AFTER THE withdrawal of the plea bargain by Katsav, the state and the defense have returned to the poker table. The problem for the state is that it has revealed its cards in the meantime. According to criminal law expert and University of Haifa law professor Emmanuel Gross, "Theoretically, everything is back to square one. The state can think again about the indictment it wants to file. However, it must act within the provisions of the law. Among other things, this means that it must be convinced there is a reasonable chance of conviction regarding every charge it makes." With regard to Beit Hanassi Aleph, Gross told The Jerusalem Post: "The problem is that Mazuz has already trapped himself. He has already said that he could not rely on Beit Hanassi Aleph as a key witness, because she was not credible. Now that the wheel has turned backward, how can he include her in the new indictment if he has already said that in her case there isn't enough evidence to be reasonably sure of a conviction? The court will want to know what has happened since then to make him think that now there is enough evidence." Gross predicted that Mazuz would have no choice but to omit Beit Hanassi Aleph from the new indictment. Since he did not cast doubt on Tourism Ministry Aleph's overall credibility, Mazuz could return to the two rape charges in the original draft indictment, Gross continued. "He can tell the court he did not doubt her credibility, and is now ready to base his charges on her version of events," he said. He added that, as the state had already acknowledged, it faced the problem of proving that Katsav had used force in his sexual intercourse with Tourism Ministry Aleph. But it could base its argument on the precedent of the Yitzhak Mordechai case, in which the court had given a minimalist interpretation of the term "force," based not on the actual penetration, but on external events surrounding or preceding the sexual act, he said. Another legal expert, former head of the Criminal Section of the State Attorney's Office Yehoshua Resnick told the Internet news site Ynet on Tuesday that because of his predicament, Mazuz might even file the "anorexic" indictment originally negotiated with Katsav's lawyers in the plea bargain. However, Israel Radio legal expert Moshe Negbi told the Post that nothing Mazuz said about the witnesses to the High Court should affect his decision regarding the new indictment. "None of it is relevant now," he said. "The moment there is a trial, it isn't important what Mazuz thought of the witnesses, because all the women will appear in person before the court. What will matter is the impression they make on the judges. The women will appear; they will testify. If the judges believe them, they will convict Katsav. If not, they won't. It's as simple as that." Negbi said there was no reason to rule out the possibility of including Beit Hanassi Aleph in the new indictment. Although Mazuz said he doubted the truth of her version of the events, he believed in Katsav's version even less, because the former president maintained all along that he had had no relationship, sexual or other, with any of the women. "Had the president said, 'I had sexual relations with Beit Hanassi Aleph, but she initiated them,' than the prosecution would have had a problem," he said. "But the moment Katsav says he did not have any sexual relationship with her, the court will believe her and not him. And don't forget that the prosecution will bring another seven or eight women who will testify that he did the same thing to them. Even if the statute of limitations prevents him from being charged with crimes against them, their testimony will prove that this was Katsav's pattern of behavior and will strengthen the charges against him. I think there is much more than just a reasonable chance of convicting him."