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The law unto Katsav By Tomer Zarchin Tags: justice system, sex crimes  On Tuesday, shortly before former president Moshe Katsav was due to arrive at Jerusalem's Magistrate's Court to plead guilty to charges of indecent acts, sexual harassment and intimidation of a witness, as part of the plea bargain he had signed with the state, one of his lawyers, Avigdor Feldman, informed Raz Nazari, a senior aide to Attorney General Menachem Mazuz, that his client had canceled the plea bargain. That same day, Mazuz instructed the State Prosecutor's Office to restore the charges the prosecution had mulled before the plea bargain. This means that the case of A. from the President's Residence is out, but the charges relating to the two cases of rape involving another A., a former employee of the Tourism Ministry, are in (dating from the period when Katsav held the tourism portfolio). The state prosecution finds the behavior of Katsav and his lawyers unpalatable. If there was a prior intention to renege on the plea bargain, says a source close to Mazuz, the ideal time to do so was after the petitions were submitted to the High Court of Justice against the plea bargain. The rationale could have been that in light of the public pressure against the plea bargain, Katsav was ready to prove his innocence in court. Advertisement The retraction of the plea bargain is only the latest in a series of moves that have caused discontent in the State Prosecutor's Office since the deal was first signed. These included the defense's requests for more and more documents, seen as attempts to gain time. That set off the warning lights, says a judicial source involved in the handling of the case. Confidants of the former president say that he felt he had made a mistake almost as soon as he signed the plea bargain. "One of the reasons Katsav went ahead with a plea bargain," says a member of his inner circle, "was that it would remove the 'Katsav case' from public consciousness. He knew that the alternative was to embark on a prolonged legal battle that would exact financial and mental resources, so he preferred the plea bargain." But whereas Katsav believed the deal entailed only minor charges, the source continues, as time passed, he was disturbed to hear Mazuz describing him as a serial sex offender and fanning the flames of public judgment. "The public militancy was what persuaded him to fight for his innocence." The turning point in Katsav's approach came during the High Court hearings on the petitions that were submitted against the plea bargain, says Avraham Lavi, another one of Katsav's lawyers. "Suddenly Katsav heard what his lawyers had claimed for a long time," Lavi says. "Namely that the investigative material lacked a foundation, that it was riddled with holes. That is what persuaded him to fight." Lavi says Katsav told his lawyers that each morning he wrestled on the one hand with his desire to do as his wife, Gila, and his children requested, and go through with the plea bargain, and on the other hand, with his own truth, which did not permit him to admit to the charges. "Nothing was planned. It was Katsav's genuine inner struggle, from the gut," according to Lavi. With regard to the question of whether Katsav is aware of the risks he is taking, Lavi says, "Katsav is a smart person with a great deal of experience in understanding human life and human risks. He is embarking on the move with head held high, and we are backing him." Problematic evidence Sources close to Mazuz deny that they foresee a problem in submitting an amended indictment against Katsav, one that includes a rape charge. Now that the case, with its weak points, is exposed for all to see, the court will be able to decide, these sources say. How is it possible to revert to the rape charge if the testimony of A. from the Tourism Ministry, which forms the basis for the whole case, was described as problematic by the State Prosecutor's Office when it urged the court to accept the plea bargain, a source close to Mazuz was asked this week. He replied that it was never claimed that there was no evidence, because if that had been the case, it would have been impermissible to strike a plea bargain. "The plea bargain," he explains, "was based on the formula that a severe indictment exists in which a conviction would be difficult, and also an indictment involving light offenses but in which conviction was certain. A certain road was taken on the basis of a judicious assessment of risk management." Katsav's lawyers were aware of all the evidentiary weaknesses, sources close to Mazuz say. In any case, there is no way to hide anything from them. These things came up in the hearing Katsav was given by Mazuz, following which the plea bargain was worked out. Attorney Devorah Chen, an expert in criminal law and a former department director in the State Prosecutor's Office, sees no obstacles in returning to the original indictment, or one a bit less harsh. "The state has canceled plea bargains in the past," she says. "For example, when new facts are discovered after the plea bargain is signed and before the start of the trial." Still, in this case, the evidence has been sharply criticized by the state itself. "This is not an entirely new situation," Chen says. "There are cases the prosecution decides to close due to lack of evidence, and a complainant appeals this decision to the State Prosecutor's Office. The state prosecutor then goes to the district prosecutor and tells him that it is possible to submit an indictment. In that situation, the very prosecutor who saw no reason to submit an indictment in the first place is now the one submitting it. The same thing happens when one court acquits a defendant and a higher court convicts him on the basis of the same evidence." However, Prof. Yoram Shachar, an expert in criminal law at the Interdisciplinary Center in Herzliya, believes it will be difficult to revert to an indictment that includes a rape charge. "It is impossible to ignore the natural exposure of the judges to the weakness of the evidence in the case that comes to court," he says. "It is impossible to hide from the judges the declared position of the prosecution concerning the poor state of the evidence. It will be peculiar if the prosecution will now declare, 'We have excellent evidence.' How can they contradict themselves like that? Where will the contrary evidence come from? If the evidence is so excellent, why was a plea bargain needed, one that you defended in court? And if the evidence is not strong, why are you submitting an indictment now?" According to Shachar, "The majority of the public expects Mazuz to put up a strong fight. Give us a fight, they are saying. The public is fed up with a low-key plea bargain. And a big battle requires a big indictment - but that is something he must not allow himself to be dragged into." Shachar's view is shared by Nevot Tel-Tzur, an experienced attorney who has represented a number of public figures in criminal cases, among them Aryeh Deri, Yitzhak Mordechai and Haim Ramon. Tel-Tzur says this could be Mazuz's finest hour, but also his downfall. "An attorney general is expected to act not emotionally but substantively, on the basis of the evidence," he says. "Mazuz now has to show greatness of spirit. He has to submit a judicious indictment, one that accords with the evidence, no more and no less, and not be motivated by a feeling of insult or a desire for revenge." The case is now back to square one. A retired Supreme Court justice said this week that Mazuz came out of the events as much a loser as Katsav. "It's a lose-lose game," he said. "There are no winners here, only losers. Katsav made the mistake of his life by not wrapping up this episode once and for all on Tuesday. And Mazuz came out a loser because of the impression that he was taken for a ride. He was led up the garden path, made the butt of criticism by the High Court of Justice and by the public, and in the end the defendant did a U-turn and left him out to dry." Sources close to Mazuz reject the allegations that the attorney general was harmed by Katsav's volte-face. Mazuz, they say, is now more satisfied than ever with his decision. It was right to reach a plea bargain at the time, and the defendant's decision to cancel it was not within the prosecution's control. Natural justice? Shortly after Katsav stood up in the narrow hall of the Magistrate's Court and stated that he had decided to cancel the plea bargain, some observers said his intention may be to put forward a defense based on a "natural justice" argument. This line of defense enables the court to cancel an indictment under circumstances in which it is clear that a fair trial cannot be conducted. "This is the classic and perhaps the ultimate case for a defense based on natural justice," attorney Lavi says. "Even the most professional judges are part of the nation and cannot divorce themselves from the media. It will be impossible to ignore the shouts and demonstrations outside. All the investigative material has already appeared in the newspapers, and it would be foolish to think that the witnesses have not influenced one another. If this line of defense is not accepted, it will become a dead letter in the law books." According to Lavi, "Even though it is clear to any sensible person that more than one, and more than two of the complainants are lying, the state chose to draw up such a serious indictment. The indictment was born in sin, and all the elements of defense based on natural justice apply in our case." Tel-Tzur does not agree that this line of defense will be accepted and the indictment accordingly annulled. "The very idea of putting forward that argument smacks of superciliousness," he says, "because under Israeli law the assumption is that a professional judge is able to ascribe the proper weight to things. It is clear that the court will take into account that the witnesses were exposed in the media and told their stories. That does not disqualify their testimony; at most it can reduce its weight." "Something happened here to the legal system," the retired justice says. "This constitutes a very serious blow to the law enforcement system overall. The behavior of the investigative and prosecutorial bodies was twisted, and the whole matter leaves one with a bad taste." Attorney Chen: "The law enforcement system encountered a very difficult problem, because the defendant broke the rules and did not behave conventionally. At the level of principle there should be no problem, because the court is meant to hear the case as though the judges had just landed from Mars. The judges are not supposed to be swayed by the public mood or by events in the High Court of Justice. They are supposed to decide on the basis of what they see and hear. But in my opinion, this matter obliges a rethinking of appropriate modes of behavior in such situations, when you are fighting in the High Court of Justice and the next day the defendant does something entirely legal and cancels a plea bargain." Attorney Yehoshua Reznik, a former assistant attorney general for criminal affairs, rejects the view that the state prosecution has suffered a serious blow. "I hear people talking about humiliation, about a 'blow to the system' and a 'victory for Katsav.' But I really don't think things reached the level of humiliation. One can criticize Mazuz's moves in this case, but Katsav's cancellation of the plea bargain is not a humiliation for Mazuz." At the same time, Reznik, who spent most of his legal career in the state service, is unsparing in his criticism of Mazuz. "Things should have been done differently from the get-go," he says. "Already when Mazuz issued his draft indictment, I said that he had placed two gallows in the market square - one for Katsav and one for himself." In the meantime, the plea bargain was roundly criticized, and now Katsav has canceled it. "There is no way to know what this kind of behavior does to the public's confidence in the prosecution and in the judicial system. It will certainly not award them a medal," Reznik sums up. 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