The court noted that they can convict a defendant even on facts outside of the indictment.
The Jerusalem District Court on Tuesday rejected the prosecution’s key request in the public corruption trial of former prime minister Benjamin Netanyahu to amend its Case 4000 indictment narrative, while approving a more minor request to amend the Case 1000 narrative.
The rejection is a major setback for the prosecution, but the judges notably left the door open to a conviction using an esoteric provision of the law.
On May 15, in a stunning reversal, the prosecution filed the request to amend the indictment.
According to the request, the state would back off from giving an exact week when an alleged key meeting took place between Netanyahu and key prosecution witness Shlomo Filber. Instead, it would have claimed the meeting took place without giving a date other than saying it was around the time when Filber was appointed Communications Ministry director-general.
The reversal came after a win by the defense when they used a mix of GPS cellphone location data as well as data from the Prime Minister’s Office security clearance records to demonstrate that Filber could not have met with Netanyahu at the time that the prosecution said a critical meeting took place.
The revelation might be the single most important factual victory by the defense to date in undermining aspects of the prosecution narrative.
According to GPS data presented by Netanyahu defense lawyer Boaz Ben Tzur to the Jerusalem District Court, former top Netanyahu aide Filber was at a family celebration and at a business meeting at the time when the prosecution has argued he was having a key meeting with Netanyahu over the alleged media bribery scheme.
In addition, the defense presented documents from the Prime Minister’s Office’s (PMO) security clearance records indicating that Filber, who was Communications Ministry director-general at the time, did not visit the PMO during the first week in June 2015.
In fact, according to these records, Filber’s first visit to the PMO in the month of June 2015 was on June 15.
Netanyahu’s defense lawyers argued that this proves that the infamous June 2015 meeting – in which Netanyahu gave Filber the order to assist with the Bezeq regulatory aspects of the Case 4000 Bezeq-Walla Affair – never happened.
Further, when confronted with this new data, Filber back-pedaled, saying that even when he had testified that this early June 2015 meeting did happen, he came up with the date based on an analysis of other meetings he had later in June, and not based on direct memory of the date itself.
Even if the defense cannot solely with these pieces of evidence prove that Netanyahu never gave Filber instruction to assist with the media bribery scheme, simply by proving that the meeting might not have happened until June 15 could radically change how other meetings Filber had with other individuals will be viewed by the court.
The prosecution has said all other meetings Filber had in June 2015 should be viewed chronologically in light of Netanyahu already having given his former top aide standing orders.
Also, the prosecution has maintained that Netanyahu and Filber met both in late May and multiple times in June.
Amending the indictment would have been the cleanest way to remove the harm of the defense’s win on this factual issue from the case and losing on the request exposed the prosecution to heavy criticism from the judges.
However, crucially the court noted that they can convict a defendant even on facts outside of the indictment.
As such, the exact dating of the meeting when Netanyahu gave Filber the order to assist with the alleged media bribery scheme may not be decisive as long as the judges accept that Filber is telling the truth that he was given such an order.