Policeman Vasker denied that he was asked by the plaintiff to take the diary, or that he actually took it, but in view of the bad impression he left, and his tireless attempts not to tell the truth and adapt reality to his needs, I do not give any credence to his testimony, and I clearly prefer the testimony of Ms. Wax" (paragraph 14 of the judgment).
In the affidavit of the main witness, the mother stated that she had photocopied the diary immediately after her son's arrest, and in her cross-examination she claimed that she had difficulty deciphering what was written in it because her son's handwriting was small and unclear, and that the diary was placed on the respondent's desk. On the other hand, in his cross-examination, the policeman claimed that he did not even remember that there was such a diary, and that "if there was something as important as a diary or things like that, then we would have realized that it was a fact that we had seized a lot of things." In response to the respondent's counsel's question about whether it is possible that the respondent's mother gave them a diary without him remembering, the policeman replied, "No, if you take anything from the search, it is recorded directly in the search report. As soon as we take things, while searching the house, it is recorded. In other words, if it wasn't recorded, then there wouldn't be such a thing." Indeed, in the "Seized Exhibits" rubric that appears in the search report, Signed by the respondent's mother, it is clearly and emphatically written, "Nothing was caught."
- As stated, the trial court preferred the respondent's mother's version that the diary was seized, over that of the policeman and surveyed, but in my opinion, it ignored a number of difficulties in the mother's version.
First, at least in the first search, the police seized "as much as they could" everything that could be seized, and it is difficult to shock that they would have given up seizing the respondent's diary if it had been placed on his desk. Even the head of the investigation team, Yitzhak Stern, admitted that in principle there was room to seize the diary immediately (pp. 157-160 of the transcript). Second, according to the mother's version, the diary was eventually taken, but the Anonymous Recorded in the exhibits seized. Beyond the fact that the mother herself signed the search report, it is difficult to convince that the police officers who conducted the search knew in advance that they had to "conceal" the existence of the diary and not mention it in the search report. The diary was not even included in the interrogation materials that were given to the defense attorney, and according to the state, it was first disclosed only in the framework of the lawsuit here. ThirdWhat was it for the mother to beg the police to take the diary and present it to her son, since the respondent was represented all along. The diary was under the control of the respondent, and even according to the mother's version, she was of the opinion that the diary might be of great importance and even took the trouble to photograph it immediately after the respondent's arrest. In view of the great importance that the respondent's mother attached to the diary to the extent that she photocopied it immediately after her son's arrest, it could have been expected that the respondent's lawyer would present him with the diary or the photocopy of the diary in order to refresh his memory of the events of that day. And as mentioned above, one might have expected that the defense attorney – who after the decision to arrest tried to gather every shred of evidence to support Alibi's claim – would rely on the diary.