"Justice must not only be done, it must also be seen to be done," the saying goes. For this reason, as the Supreme Court emphasized, even the most upright of judges must sometimes recuse themselves, and if they don't, litigants can request their recusal, when there is the appearance of bias in a case. According to the ruling, the appearance of bias should be such that it would make a "reasonable person" question the integrity of the judicial process.
The last thing the judicial system needs at a time when it continues to fight to regain the faith of the public was the Channel 10 report exposing the coordination of the remand of some of the suspects in the case between the presiding judge, Ronit Poznansky-Katz and the deputy council of the Israel Securities Authority's investigative department, Eran Shacham-Shavit. This report could serve to further erode the public's trust in the judicial process. The extent and the content of the discussions between the two are no longer of significance. What matters is that to the majority of the public, the process has already been contaminated, and the outcome, whatever it may be, will not be seen as credible.
From a purely legal aspect, however, the coordination between the two is of less significance. Since the proceedings into Case 4,000 are now at the preliminary stage, the main purpose of which is to repeatedly discuss the remand of the suspects' detention, this failure on both the judge's and the deputy council's parts will not substantially impair the central proceedings.
One can assume that on a personal level, the judge will be the one to pay the price for their actions. But at the end of the day, the contamination of the judicial process at the arrest stage will not have any real influence on the trial itself, should an indictment be filed.
A judge that deliberates the remand of an arrest does not sit in on deliberations in the central case precisely because their exposure to investigation materials and evidence pertaining to the criminal background of the suspect and the danger he or she poses at the remand stage could influence their opinion later on. This is of particular concern when it comes to cases where suspects are alleged to have committed serious crimes such as bribery, which are deliberated at the district court and not the magistrate's court, where criminal proceedings start.
The only possible outcome of Sunday's farce is the premature release of some of the suspects, who will surely argue that the entire case has been tainted in such a way that cannot be rectified even by having a different judge deliberate their remand.
Should he choose to do so, Prime Minister Benjamin Netanyahu can use this current saga as "proof" of his claim that he is being persecuted by the police, even though from a substantive legal perspective, the suspects' arrest has no direct connection to him. If someone were to need direct documentation of the impartiality and the bias of the police and the investigators in the investigation, it has just been handed to them on a silver platter.
It sounds bad, it looks bad and it smells bad. But in the end, only the evidence matters.
