AS the hearts of Malka Leifer’s accusers stopped, the family around me in the Jerusalem courtroom seemed sure its prayers were being answered.
Leifer’s brother, who sat in front of me, was grasping a mystical charm when the judge announced bail. Other relations were reciting prayers. Moments later, Leifer’s attorney Yehuda Fried was feeling so confident that he told me he will push to cancel the house arrest clause so that his client can walk around freely.
The Supreme Court may still snatch away the Leifer family’s dream of their relative living among them, but it was highly likely they would win round one of the bail battle. They could have done it even without their big bucks lawyers – and their anti-extradition incantations.
To understand why, despite outrage in Australia, the Leifer team found it easy to get at least an initial “yes” to bail, we need to look back a year-and-a-half. That is when Leifer was returned to jail, and the impetus was not because of the extradition proceedings. It was because she is suspected of breaking Israeli law.
It appeared to be the ultimate smoking gun when Israeli police obtained footage of her going about everyday activities. Extradition proceedings had been frozen because she was declared mentally unwell, yet police said that the footage proved she had been faking.
Had state prosecutors quickly slapped an indictment on Leifer for this alleged faking, they would have found it easy to keep her behind bars. But they did not. As a result, months ago, prosecutors stopped being able to argue that the faking case provided a clear-cut reason to keep her imprisoned while side-stepping the complexities of the extradition case.
By the latest bail hearing, that dramatic footage of Leifer in what seemed like fully-functioning mode was almost irrelevant.
As far as the court was concerned, Leifer’s mental state is an open question until a new psychiatrists’ panel presents conclusions in December.
The defence argued that amid conflicting claims on Leifer’s mental state, there are no clear grounds to keep her in prison.
The Supreme Court is currently deciding whether to overturn the bail decision. This is most likely to happen if it turns the argument on its head. Bail is denied if the suspect is thought to pose a flight risk or because they may be a danger to others.
It could be argued that when there is so much uncertainty surrounding Leifer’s state of mind, assessing what impact it may have on chances of flight or danger to others is a shot in the dark.
The current state of the Leifer case is a far cry from the situation that Shana Aaronson expected when she commissioned the “rock solid” undercover footage of Leifer.
“We were all thinking, ‘Let’s get evidence she was faking and we’ll get extradition proceedings back on track,'” Aronson, COO of Jewish Community Watch, recalled.
“The reality is that the legal system doesn’t work like that.”
She told The AJN, “I knew there would still be lengthy legal wrangling, but none of us could have imagined how much longer it would be if we brought what seemed to be rock solid evidence.”
Aronson admitted, “I was naive in that I thought this would go a hell of a lot faster.”
Once a smoking gun, the case of Leifer’s alleged faking is now a side note. Why has the prosecution allowed this?
Amnon Reichman, law professor at the University of Haifa, points to a possible “concern by the prosecution that indicting her could interfere with the extradition”.
He said, “It makes sense for the prosecution to hold off on the criminal case until it’s decided whether she is fit to be extradited or not.”
The last thing that the prosecution wants is to get Leifer’s extradition approved and then face delays because of an unresolved criminal indictment. Yet Leifer’s defence would be likely to insist that the case is resolved before she flies to Australia.
Even if this factor is not deterring Leifer’s prosecutors from progressing the criminal case, a political scandal may be holding them back.
Police have stated they suspect that Deputy Health Minister Yaakov Litzman tried to “improperly influence” state psychiatrists who have played a key part in slowing down extradition proceedings against her.
Suspicions against Litzman extend far beyond the Leifer case, and they require major manpower in an overstretched state prosecution service.
The Litzman case will take time. Leifer prosecutors could carry on with the Leifer criminal case regardless, ignoring the Litzman case. But Reichman suggests that this could be “grounds for criticism”.
Prosecutors could be seen as downplaying the Litzman accusations, or “sweeping them under the carpet”, said Reichman.
So far, the Litzman case has been the elephant in the courtroom – not mentioned, but present in the background. For the first time now, it seems to be playing a part in how the case is handed.
On Monday, Jerusalem District Court sat to decide how to convene a new psychiatric panel that will asses whether Leifer is fit to stand trial for extradition. And it sidelined Jerusalem District Psychiatrist Jacob Charnes, who has been linked to Litzman.
Charnes had been expected to convene the panel, but the task was given to Tel Aviv District Psychiatrist Uzi Shai instead.
This is widely seen as a move to clean up the case given that Charnes changed past assessments of Leifer, and was questioned by police about the possibility that Litzman pressured him to do so.
Pressure is also growing for the case to be handled speedily.
Yuval Kaplinsky, director of the department for international affairs at the State Attorney’s Office, attended Monday’s hearing and said that Israel needs to handle extradition requests in a timely manner.
These were two positive steps, but among Israel’s diplomats and former diplomats, there is a growing realisation that Israel’s image has already been badly damaged in Australia.
One former senior diplomat told The AJN, “You spend years trying to build up appreciation in the [Australian] public that you have shared values and common agendas, but this is the kind of thing that chips away at the work you do.”
The former diplomat downplayed the fallout on a diplomatic level, and takes the view that former Australian ambassador to Israel Dave Sharma’s warning of damage to bilateral relations goes too far, but he thinks that the case is causing real harm to the perception of Israel among the Australian public.
He said, “It erodes the sense of shared values and shared commitment to things that are said to underpin close relations.”
He added that negative headlines related to the case “have a drip-drip effect on those who read them,” and they are a “further nail in the coffin” in terms of how some Australians view Israel.