Investigator, investigate thyself
He was acquitted in 2007 of murdering his father. Now Yosef Zohar is suing the State Prosecutor's Office, the Justice Ministry and the police for dereliction in handling his case.
Yosef Zohar was accused seven years ago of murdering his father, diamond dealer Moshe Zohar, out of greed, and endured a legal saga that lasted five years, during which he lived under the threat of a life sentence in prison. Zohar was ultimately acquitted, but when he petitioned the law enforcement authorities, demanding an investigation of how his case was handled by the State Prosecutor's Office and the police, he received evasive responses.
Zohar, now 45, was acquitted in November 2007. During the years his trial dragged on, the state, represented by attorney Tova Peri, maintained that he had murdered his father, who suffered from a debilitating muscular disease, after persuading him to revise his will on his deathbed. The indictment depicted Zohar as trying to deprive his father's second wife of the inheritance and of conspiring with his father's caregiver, Valentin Tukila, a Moldovan-born doctor, to end his life.
The indictment relied on incriminating testimony from Tukila, who was also acquitted on charges of murder. In fact, the investigation into the death of Moshe Zohar began months after his demise, after Tukila was arrested on suspicion of killing his own wife and the woman she worked for, crimes for which he was subsequently convicted. At the Zohar trial, it became clear that Tukila's testimony was a mixture of contradictory recollections, obtained in a highly flawed interrogation. The Tel Aviv District Court ruled that his interrogation had been "harsh and crushing," and that during it, "interrogators 'kneaded' Tukila with promises, threats, shouting and temptations, until the latter became like clay in the hands of the creator, willing to confirm as 'true' any fact presented to him.'"
The court criticized the prosecution for not stating until the end of the trial which version of Tukila's story it had adopted, and stated that this constituted "an admission that none of his versions can be trusted." Moreover, the panel of judges at Tukila's trial ruled there was no evidence that Moshe Zohar had even been murdered.
On November 27, 2007, following their client's acquittal, Zohar's lawyers, Dror Arad-Ayalon and Sharon Danieli, submitted a request to the justice minister and the attorney general to review the authorities' conduct in his case. Among other things, Zohar argued that the State Prosecutor's Office should have refrained from filing an indictment against him in light of the evidentiary problems in the case, or suspended the proceedings when these were discovered. The request reached State Prosecutor Moshe Lador, who delegated its handling to his deputy, Yehoshua Lemberger.
More than a year later, in December 2008, Lemberger responded that, "there was no flaw in the way the State Prosecutor's Office handled this case." He tossed the ball into the police's court, and wrote: "It appears that it would be appropriate to draw lessons and examine the manner in which the investigation was conducted and the directives the interrogators were given. This review will be coordinated by the police."
In addition to requesting that the state prosecutor investigate, in March 2008, Zohar petitioned the Justice Ministry's department for the investigation of police officers to open a criminal investigation against his interrogators. He claimed, among other things, that they falsified the time of his arrest on the report submitted to the court, to justify the delay in bringing him before a judge - and later lied about it in court. He further claimed that the "prisoner card," documenting Tukila's comings and goings from the holding cell, shows that his interrogators removed him for questioning on several occasions without documenting this, in violation of the law.
A key element in Zohar's alibi was the issue of whether Tukila had phoned to summon him to his father's house the night of Moshe's death (a fact that would support Zohar's claim that he had not been at the house at the time). Early in the interrogation, Tukila claimed he had called Zohar around 12:30 A.M., after the father exhibited signs of distress. The investigators could not find any documentation of that phone call, and were convinced that Tukila was lying and that Zohar had been with him. When Zohar asked his interrogators whether it was true that they had checked all the phone lines in the house, noting that there were three, they replied "correct."
It later turned out that they had checked only one line. But the investigators apparently managed to get Tukila to change his story so it didn't include a phone call. It later emerged, however, that such a call had been made - from a line that had not been checked initially - and Tukila was rushed back for more interrogation. The court ruled that the questioning yielded "a number of enlightening, not to say hallucinatory, explanations for the existence of the phone call, a phone call whose existence he insisted on at the start of his interrogation, but was persuaded did not exist. He adopted this piece of information and is now being asked by the interrogators to confirm its existence once again."
The day the placing of the call was verified happened also to be a day that the court extended Zohar's remand. In his complaint to the investigation department, he claimed the police failed to inform the court of the verified telephone call, and continued to insist that his version of events was not supported by objective evidence.
Same old assertions
In Zohar's 16-page petition to the investigation department, he described his interrogation and suggested that crimes had been committed in the process, which, if prosecuted, could carry punishments ranging from three to seven years in prison. But in June 2008, he received an especially unhelpful response: "Our department is authorized to investigate suspicions that concern the perpetration of criminal offenses only ... whose maximum penalty is more than a year in prison. An examination of your complaint concluded that it does not fall within this framework. In the light of the abovementioned, we have decided not to open an investigation." The investigation department also noted that Zohar could submit an appeal to the state prosecutor.
This time Zohar's lawyers petitioned Lador, asserting, in their letter of July 2008, that the evidence presented during his trial raised questions concerning possible wrongdoing, involving "submission of false reports to the judges who order remands, falsification of arrest documents, deliberate lack of documentation of investigatory activities (including interrogations of Tukila), and worst of all, a suspicion that police officers, headed by the leader of the special investigative team, committed perjury in court." The lawyers then raised the following question: "Does this complaint really not address matters that are within the investigation department's jurisdiction? Does this not raise suspicion of subornation in the investigation, obstruction of justice and perjury?"
This time the appeal was handled by assistant state prosecutor Shai Nitzan, and the head of the appeals section in the State Prosecutor's Office, Etti Kahane. It took Kahane almost a year and a half to reply. At the end of December 2009, she wrote Zohar's lawyers that Nitzan "had not found reason to alter the decision to close the case."
Kahane also stressed that "not every criticism, harsh as it may be, raises suspicion that criminal offenses were committed ... particularly since the courts did not make any recommendation to open an investigation." Zohar's claims, she wrote, regarding suspicions that his interrogators broke the law "do not lay the groundwork for a criminal investigation." At the end she added: "As the police do routinely, when there are verdicts that contain disciplinary comments or criticism of the force's work, the main elements in the verdict are distributed to the various units, and the police will do so in this case as well." The words "will do," in the future tense, were used, meaning that more than two years after the verdict, this had not been done.
About a month ago the State Prosecutor's Office submitted to the Tel Aviv District Court its defense brief for the civil suit filed by Zohar. He is now suing that office, the police and the head of the investigative team, Rami Zach, for NIS 4 million in damages for the financial and emotional distress he suffered as a result of the trial. During the proceedings, he spent about three months in full custody, and another four years or so under house arrest.
To this day, Zohar claims, his family is forced to endure "whispering, gossip and speculation surrounding the entire affair." In his suit he makes allegations similar to those he addressed to the investigation department. The defense brief that the state filed in mid-January shows that its stance has not changed: It calls Zohar's allegations "20-20 hindsight," and continues to insist that he was acquitted only because of reasonable doubt, adding that, "the investigation was conducted through accepted investigative methods of the Israel Police." The State Prosecutor's Office also clarifies that even if the interrogators made a mistake, "a mistake is not negligence and certainly not a criminal offense."
According to the office, "despite criticism the courts had regarding the investigation, it was never established that the investigators broke the law, did not document investigative activities or, heaven forbid, perjured themselves." Two years after Zohar's acquittal, the state prosecutors maintain that "the investigation was not a false investigation, and the plaintiff's arrest was not a false arrest. It was necessitated according to the evidence collected in the police investigation, and was approved by the courts that deliberated his case." The office also claims that making the state responsible for damages suffered by Zohar would deter the authorities from carrying out their duties.
Says attorney Arad-Ayalon: "Despite the ringing acquittal, to this day both the police and the State Prosecutor's Office have not conducted any serious internal inquiry and have not even tried to examine the affair from a new and fresh perspective. In the defense brief we see the same position that was rejected by all of the courts, and the same erroneous concept that produced the indictment."
In a written comment sent to Haaretz, Yosef Zohar wrote: "It is hard to swallow the total denial, the avoidance of taking responsibility, the lack of willingness to draw lessons, and the cover-up of civil servants who were derelict in their duties. We were just one step away from the destruction of a home and family in Israel."