Attorney General Yehuda Weinstein announced support Sunday for the prosecution’s view that it’s permissible to alter civil servants’ affidavits when they contradict the state’s position. He thereby backed State Prosecutor Shai Nitzan in a dispute with the prosecution office’s ombudsman, Hila Gerstl.
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But a senior source familiar with the ombudsman’s work accused Weinstein of “capitulating to the steamroller of pressure exerted on him by the prosecution.”
The case began when the prosecution tried to torpedo Dr. Maya Forman-Resnick’s appointment to a senior position in the Institute of Forensic Medicine at Abu Kabir. Forman-Resnick, a forensic medicine specialist, had angered the prosecution by testifying against it in a murder case against Roman Zadorov, who was convicted of the 2006 slaying of 13-year-old Tair Rada. But it officially based its opposition to her appointment on the trial court’s criticism of her professional opinion in that case.
Forman-Resnick then sued the state for rescinding the appointment, and the head of the forensic medicine institute, Dr. Chen Kugel, sought to testify on her behalf in the suit.
The prosecution asked Kugel to delete sections of his affidavit in which he backed Forman-Resnick’s professional opinion in the Zadorov case and criticized the prosecution’s conduct in that case. But Kugel refused to do so, and the labor court ultimately ruled in Forman-Resnick’s favor, reinstating her appointment.
Gerstl subsequently investigated the affair and concluded that the prosecution erred by asking Kugel to alter his affidavit. She said the document wasn’t just a rough draft, in which changes could be made, but a finished affidavit, so “any attempt at changing it constitutes prima facie interference in the testimony of a witness.”
Moreover, she wrote, the requested corrections didn’t relate merely “to legal positions that contradicted the attorney general’s position, but overwhelmingly ... to Dr. Kugel’s professional and personal opinions.”
Nitzan then asked Weinstein to overturn Gerstl’s decision. In a letter sent two weeks ago, he argued that it’s standard practice for the state to present a unified position in civil and administrative cases, and that in such cases, a civil servant shouldn’t present positions that don’t accord with the attorney general’s position.
He also accused Gerstl of exceeding her authority by seeking to intervene in the professional judgment of the prosecutor who asked Kugel to alter the affidavit. The prosecutor, he noted, was acting under instructions from two deputy attorneys general, who are not subject to the ombudsman’s authority.
Weinstein didn’t even wait for Gerstl’s response before informing Nitzan that he backed the prosecution on this issue. In a letter sent to Nitzan on Sunday, the attorney general said he hadn’t heard back from Gerstl, so in the meantime “the prosecution should continue acting as it has until now.”
A person represented by the state – i.e., a civil servant – shouldn’t present any opinion in court “that doesn’t accord with the attorney general’s opinion,” Weinstein wrote. As a rule, prosecutors should discuss the content of an affidavit with the person they are representing and try to reach an agreement, he continued, but “they are entitled, under appropriate circumstances, to demand the deletion of personal views that contradict the attorney general’s position.”
The senior source told Haaretz that Weinstein’s quick decision was unusual, as “in other cases, it takes a long time” to decide on such issues.
Moreover, he said, “the flaw in the prosecution’s conduct was clear – this was a signed affidavit, and Dr. Kugel was in any case summoned by Forman’s attorney, so he wasn’t a witness for [the prosecution], and in such a case, the state can’t ask that he delete so much as a letter.
“There’s no doubt that on legal positions, the state speaks with one voice, but not on professional opinions,” he continued. “And this entire conduct stemmed from the fact that they tried to keep Kugel from giving his professional opinion on the Zadorov case. How can such a thing happen in a properly run country?”
The prosecutors’ union said Weinstein’s letter “shows very clearly” that Gerstl “completely exceeded her authority and doesn’t understand the role of the prosecutors who represent the state in court in civil and administrative cases, or the role of the attorney general, either.”
Weinstein’s office said this is an interim decision and should be taken as such. He will make a final decision only after receiving Gerstl’s response.