Judge in Netanyahu Trial Reprimands Prosecution for Not Handing Over Material

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Ilan Yeshua in court in Jerusalem on Tuesday.
Ilan Yeshua in court in Jerusalem on Tuesday.Credit: Emil Salman

The judges in Prime Minister Benjamin Netanyahu’s trial rebuked the prosecution on Tuesday for failing to hand over relevant material to the defense.

The prosecution had mistakenly given the defense attorneys some correspondence between Ilan Yeshua, the former CEO of the Walla internet news site, and several politicians, businesspeople and public figures relating to the way the site covered them. The defense then demanded that it be given any additional such material, arguing that it was relevant to their claim that Netanyahu’s requests for changes in Walla’s coverage were nothing unusual.

The Jerusalem District Court hasn’t yet ruled on this request. But one of the three judges, Moshe Bar-Am, criticized the prosecution for its opposition to the request.

“You admit you made a mistake,” he told prosecutor Judith Tirosh when she insisted that any new search of Yeshua’s cellphone be done solely through keywords. “You admit that you didn’t examine possible lines of defense when you examined the case. I simply don’t understand why you’re being so stubborn. It will take hours of work? So let it.”

Judge Rivka Friedman-Feldman added that if the keyword searches done so far had failed to turn up relevant material, then the prosecution would have to read over each piece of correspondence individually.

Jacques Chen, the lawyer representing Walla’s former owner, Shaul Elovitch, who is charged with bribing Netanyahu by giving him favorable coverage, noted that he received the material he currently has about Yeshua’s correspondence with other public figures only by mistake.

“Why didn’t the prosecution tell the court, ‘You should know that such material exists, but in our view, it’s not relevant?’” he asked. “The prosecution said ‘We glanced at it.’ What does this mean? Have your honors managed to understand why this wasn’t handed over?”

Michal Rosen-Ozer, representing Elovitch’s wife Iris, added, “The prosecution has kept quiet to this day when it knew there was investigative material that wasn’t formally handed over ... It hoped we wouldn’t find this material.”

Chen said the defense needs the additional material from Yeshua’s cellphone to show that he acceded to other people’s requests to alter Walla’s coverage, not just those made by Netanyahu and not only when he was so ordered by the Elovitches. The indictment’s bribery charge defines the benefit Netanyahu received from the Elovitches as “exceptional compliance” with his requests regarding Walla’s coverage, so it’s essential to determine how exceptional this really was, he argued.

On Monday, the prosecution had said it wasn’t willing to simply hand over the rest of Yeshua’s correspondence, but that the police would do a keyword search of it to find additional relevant material. The defense objected, however, saying it would be hard to know in advance which keywords are relevant, especially since some of the exchanges were done via codewords.

It therefore proposed various alternatives, including having the prosecution go over all the material itself and submitting an affidavit saying it had read it all and found no additional relevant material.

But Tirosh insisted that a keyword search was the only option. “There’s doubt we’ll find relevant material, and there’s also no doubt we’ll find material protected by the right to privacy,” she said. “We need to ensure that privacy isn’t violated – not just that of the witness, but also that of the people he spoke with.

“We didn’t examine the witness’ conversations with politicians and media figures, but only his conversations with the staff [of Walla] and the defendants,” she continued. “That’s what the police classified as investigative material.”

“Going over this correspondence line by line is impossible and violates court precedents,” she added.

After the discussion of the defense’s request for additional evidence was over, Netanyahu’s lawyer, Boaz Ben Zur, resumed his cross-examination of Yeshua. He focused on trying to show that some of Netanyahu’s requested changes in the coverage were legitimate and necessary.

In February 2015, for instance, Yeshua was asked to remove an article saying that most primary donations to leading rightist politicians had come from overseas. But the article was misleading, Ben Zur said, because “you forgot to say that the law forbids parties from collecting donations from overseas, but there’s no such ban for the primaries.”

He also charged that the material for the article came from Isaac Herzog, then a candidate for prime minister, and that Herzog was responsible for the slanted presentation.

Yeshua replied that he came under heavy pressure to remove the article from the homepage and that he didn’t know if Herzog was the source of the material. He also said he didn’t remove the article because he thought it was incorrect, but only because of the pressure exerted on him.

“Today, when you explain it like that, I understand,” he said. “But at that moment, there was pressure on me ... I was in a pressure cooker ... He said, ‘In another minute they’ll kill me.’ At that moment, I didn’t know if it was accurate or inaccurate ... But if you ask me today whether this seems to me like a legitimate, accurate demand? Yes.”

Ben Zur also argued that Walla had a policy of attacking Netanyahu, including by publishing follow-ups of all anti-Netanyahu stories reported by other media outlets but not doing so for reports about other people.

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