It was argued that contrary to the accuser's claim that Fisher took advantage of the distress of his client, Hassan, and the power and information disparities between them, Hassan testified that he contacted Attorney Benny Katz as early as June 8, 2014, and since then, under the instructions of his lawyer, he has recorded all his meetings and conversations with Fisher. The first recording was of the meeting that took place in Fischer's office on June 15, 2014, and that same night, Hassan met with investigators from the Department for the Investigation of Police, who began to use him as an agent on their behalf with Fischer. From then on, Fischer's attempt to broker a bribe with Hassan was unsuccessful, as it was an attempt to persuade an agent, acting on behalf of the Department for the Investigation of Police, to pay a bribe to the policeman. In any case, the commission of the offense did not cause damage and could not have caused damage, which is a mitigating circumstance. Moreover, listening to the full recordings of Hassan's conversations shows that after Hassan's arrest, Fisher did not repeat the offer to "kill the affair," and did not exert pressure and persuasion on him to transfer the money as the accuser claimed, but rather it was Hassan who raised the issue, while Fisher suggested that he fight for his innocence when the indictment was filed against him. This is also learned from the quotes in the indictment from the conversations recorded by Hassan after the arrest, in which Fisher asked for his consent."Evacuate and try to minimize damage", while making it clear to him "that he will be indicted in the future.", as distinct from the discourse about the 'killing of the affair' and the possibility of 'finishing the story' that took place between them before the arrest, a considerable amount of time before those recorded conversations.
The defense disagrees with the accuser's claim that this is an orderly, multi-stage, and planned plan of action by Fisher towards Hassan. According to the defense, there is no mention in the amended indictment of prior planning on Fischer's part, and that the person who initiated the meetings after the arrest was Hassan and not Fischer. In addition, the allegation of prior planning on the part of Fischer contradicts the amendment made in the indictment as part of the plea bargain, whereby the description that appeared in the general part of the original indictment regarding Malka Fischer's modus operandi according to which the acts described in the individual charges were committed, including in the 'Hassan Case' was deleted (see paragraph 23(c) of the original indictment).
- With regard to the customary sentencing policy and the appropriate range of punishment for the offenses committed by Fischer, Adv. Perry argued that the judgments to which the accuser referred were irrelevant to his case, since in none of them was there such a dramatic gap between the offenses and charges of which the defendant was charged in the first place and those of which he was eventually convicted, as happened in the present case, and not even a gap that comes close to it. In addition, in none of these cases was the defendant detained (behind bars and later in a house without 'ventilation windows') for more than two years; And the investigation and prosecution proceedings in those cases were not tainted by such a large and widespread number of failures and omissions that established claims of protection from justice in scope and intensity as were discovered in the present case. In this state of affairs, it is argued, the scope of the punishment cannot be determined by way of a comparison with past precedents. The hope is that the serious deficiencies that occurred in this proceeding will not be repeated in any future criminal proceeding, so that even the sentence handed down to Fischer will not be able to serve as a precedent in future cases.
- Adv. Perry further analyzed the judgments that were brought in the argument for the accuser's sentence. He argued that most of the judgments dealt with finished bribery offenses committed by public servants who pocketed the bribe money, and operated in a prolonged, systematic and large-scale manner. Fischer, on the other hand, is not a public servant; He was convicted of an attempted offense and not a fait accompli; He did not receive any sum of money for himself; And the incident for which he was convicted was specific and one-time.
Adv. Perry also referred to judgments in which bribery offenses were sentenced to penalties that were lighter than the punishments presented by the accuser: Criminal Appeal 6622/17 Gabbay v. State of Israel (January 10, 2018) - A sentence of 6 to 12 months imprisonment was set for the appellant who gave a financial bribe to a police officer and in return received assistance in various matters related to his position (protection from enforcement actions and the provision of information from the police databases). Inside the compound, the appellant was sentenced to 3 months in prison and 3 months in community service. Another defendant (who was a close friend of the officer and gave him lower sums) was sentenced to six months in prison with community service. Criminal Case (Hai District) 51826-09-19 State of Israel v. Noy (December 27, 2020) - Giving a bribe of approximately NIS 200,000 to the director of a zoo in the community center chain for five years, while disguising the payment of the bribe and signing a false affidavit. The appropriate punishment range for offenses of bribery (several offenses), obstruction of justice, and perjury was set at 9 to 18 months in prison, and the defendant was sentenced to 9 months in prison with community service. Criminal Case (Hai District) 37590-05-15 State of Israel v. Assayag (October 20, 2015) - Conviction as part of a plea bargain for offenses of bribery brokerage and bribery of a police officer in exchange for his promise that he would work to close criminal investigation files and issue entry permits to Palestinian Authority residents. The appropriate penalty range ranges between 4 months of imprisonment that can be served with community service and 24 months in prison. The middleman and the bribe giver was sentenced to 6 months of community service. Criminal Case (Jerusalem District) 59794-01-17 State of Israel v. Kirma (January 8, 2018) - A police officer convicted of accepting bribes (money and goods) is staying in Israel illegally in seven cases over a period of three years. The appropriate punishment range ranged from 4 months of community service to 14 months of actual imprisonment. The defendant was sentenced to 6 months of community service. Criminal Case (Central District) 15314-04-13 State of Israel v. Nasat (October 14, 2013) - The defendant brokered bribes in a number of cases between a man who smuggled eggs from the Palestinian Authority and an intelligence coordinator in the chicken coop council. The accuser filed a petition for the imposition of 6 months in prison to be served with community service, and the court sentenced him to 4 months of community service.
- In any event, according to the defense, even ignoring the factual and normative differences between the circumstances of the commission of the offenses in the judgments to which the accuser referred, the transfer of the level of punishment determined in those cases through the melting pot of the special considerations for mitigation of the sentence in the case before us: the gap between the original indictment and the final indictment; the "field trial" that was held for Fisher in the media; detained for more than two years; the rest of the damage that collapsed his life and the lives of his family; The conduct of the enforcement authorities in the investigation and in the first years of the court proceedings – all of these lead to the result that Fischer has already served the full actual sentence that could have been imposed on him if it were not for those special considerations, so that the remainder of the sentence he deserves now amounts to a forward-looking punishment (and at most a few days of imprisonment by way of community service). In this context, mention was made of the court's authority, as recognized in case law and legal literature, to deviate from the appropriate punishment range due to considerations of justice and exceptional personal circumstances.
- To this, the defense added Fischer's personal circumstances: that he had no criminal record; his medical condition, which the court became aware of throughout the years of hearings, and which Fischer's wife and Prof. Barak testified, including with regard to the impact of the criminal proceeding on the deterioration of the situation; and his willingness to take responsibility for the offenses he confessed to as part of the plea bargain, despite the long struggle he waged to prove his innocence, out of his desire to put the affair behind him, which saved judicial time and precious resources that would still have been ready for the proceeding if it had not ended in this way.
In light of all this, it was argued that Fischer should now be allowed to slowly begin rehabilitating his life, dealing with the restoration of his law license and finding employment, whether in academia or as a lawyer, after he has been prevented from working and providing for his family since the affair began. A real punishment at this time will deepen the rift and go beyond the punishment that Fischer deserves, given the totality of the circumstances.