Public Defender: Drop Weapon Theft Charges in View of Prosecution Error

The Public Defender's Office is demanding the Petah Tikva District Court throw out the indictment of Sharon Gutin on suspicion of stealing a weapon after prosecutors reportedly failed to hand over evidence amassed during the investigation. The court was asked last Thursday to cancel the indictment against Gutin for allegedly stealing a weapon from a factory that manufactures it especially for the Israel Defense Forces.

The motion to dismiss the charges also reflected last week's decision by Tel Aviv District Court Judge David Rozen to void a money-laundering indictment against employees at the Russian desk of Bank Hapoalim's Hayarkon branch. Rozen was highly critical of prosecutors for failing to hand over evidence to the defense, a move that did "real harm to their ability to mount a defense."

The public defender, Tirtsa Kisch, said she first learned of wiretaps of her client a full six months after the indictment was filed. The police in investigating the Haim Ramon case were faulted by the state comptroller for failing to turn over transcripts of wiretaps to the State Prosecutor's Office, which handed down the indictment against the former minister without studying the evidence.

Prosecutors are required to hand over all evidentiary material immediately after an indictment is filed, said Kisch. Five months after Gutin's indictment, she told the court, she received compact discs, some inaudible, and 11 court orders for wiretaps that she did not know had existed. She said she received a folder containing the contents of the wiretaps just 10 days before the evidentiary stage of the trial was to begin. The folder included a list of additional tapes and recordings from wiretaps that were not handed over to her. The failure was grounds for nullifying the indictment, she said.

The subject has been a sore point between the Kisch and the prosecution. Petah Tikva District Court Judge Liora Brody has twice instructed the prosecution to give the defense a complete list of all evidence gathered, but the defense says it has yet to receive such a list.

In July, the State Prosecutor's Office wrote to the court: "Indeed, there was an error and evidence related to wiretaps of those who were investigated in the case was not handed over." The public defender wrote: "It's impossible to avoid the impression that the prosecution does not attach any importance, to say the least, to its legal obligations to hand over material gathered during the investigation and abide by the court's decisions."

In response, the prosecutors argued that the court never required them to hand over a complete list. "The delay [in providing the list] is not the result of our ignoring the court or ignoring the defense request, but rather that the evidence is not organized in the manner in which it was when various lists of evidence were provided," the prosecutors wrote. They added that they recognized they erred by failing to include most of the wiretaps in the initial evidence turned over to the defense, but the error was not deliberate.

An official in the Public Defender's Office commented: "Recently, we have been hearing too many explanations for oversights described as innocent mistakes. Such an accumulation of mistakes, which repeat themselves, provoke the serious suspicion that lessons that needed to be learned from other cases, like the Ramon kiss case and the Bank Hapoalim affair, were not learned."