As the initial shock of the text messaging affair ebbs, a long, exhausting, and nerve-wracking phase that will keep us awake at night will begin.
First of all, law enforcement will have to examine whether, beyond the ethical and disciplinary problems, the text message exchange was also criminal.
As in other cases, it is necessary to file an official complaint against the lawyer or the judge involved before an investigation can be launched. By Monday afternoon, it had already been filed.
By law, when police have grounds to suspect that a crime has been committed, they must begin investigating. This is especially true in this case, which also touches on the principle of equality before the law, which is a bedrock principle in any rule of law worthy of the name.
The investigation must be conducted quickly, if only to prevent the legal process from being dragged out unnecessarily and minimize another blow to the faith of the public in law enforcement. Many fear, albeit incorrectly, that judges and prosecutors get a celebrity discount when the legal process affects them personally. The investigators will be asked to track all the text message exchanged between the judge and the prosecutor (and possibly other prosecutors), including ones that were not reported by Channel 10, and evaluate their content. Only after that will we know whether it was a momentary lapse, however serious, that does not merit criminal proceedings, or something more serious.
In any case, even when the investigation is over and the evidence has been examined, the attorney general will have a lot of leeway to decide whether to take this case down the criminal road or to take more moderate action such as disciplinary steps against the suspects and their voluntary resignation.
The immediate suspicion that comes to mind at this point is obstruction of justice, a catch-all offense usually attached to much more serious crimes that rarely stands on its own. The broad definition of obstruction of justice leaves the prosecutorial authorities room to maneuver. The law interprets this crime as "behavioral," regardless of the outcome. In other words, there is no need to prove that the actions in question actually obstructed justice. The potential of the actions to do so is enough.
Therefore, even if the people involved prove that the text messages had no influence on the results of the legal process, that won't be enough to exonerate them. Like any other crime, it will be necessary to prove beyond reasonable doubt that the acts in question met all the basic criteria of the crime, including the stipulation that it was committed "with the intent of preventing or causing the failure of a legal proceeding or [causing] a perversion of justice." As of now, it appears that this is not the case in the matter of the text messages. If a criminal investigation is opened, Supreme Court President Esther Hayut will have the authority to suspend Judge Ronit Poznanski-Katz for as long as she sees fit, if Poznanski-Katz does not resign.
We need to remember that even a judge and a prosecutor who failed in their jobs deserve a fair process. So it would be best to refrain from stoning them in the city square. Law enforcement authorities should be allowed to do their work and not be rushed to determine the suspects' fate before the fact-finding work is done.
