Let us recall that "The duty to document is intended to protect the rights of the potential state witness on the one hand, and to enable supervision of the proper conduct of the proceeding on the other. This is beyond fairness to the potential defendants who will be incriminated by the state's witness" (Criminal Appeal 1361/10 State of Israel v. Zagori, paragraph 34 (June 2, 2011)). All of these purposes are as valid for negotiations with a defendant who wishes to be a state witness as they are for a suspect conducting the negotiations through an attorney, as they are for a suspect conducting the negotiations himself. In this context, it will also be mentioned High Court of Justice 9882/16 Molkandov v. Tel Aviv District Attorney's Office (Taxation and Economics), paragraph 21 (March 6, 2017), in which the obligation to document the negotiations to conclude a state-witness agreement, which is stated under the direction of the Attorney General, was discussed and applied to a case in which the negotiations were conducted through the suspect's attorney.
In any event, the intensity of the damage to the defense capacity of the other defendants, including Fischer, as a result of the concealment of the information contained in the documents in question, is doubly doubled, given the date on which the memorandum and the email message of May 10, 2015, were discovered: only during the months of February and May 2023, eight years after the trial began, and after the cross-examinations of Malka (who completed the second round of his testimony on December 12, 2022) and of Malka's defense attorneys (who testified in December 2022 and January 2023) had ended. This thwarted the possibility of confronting Malka and his defense attorneys with the new documents and getting their opinion on them; This includes the content of the contacts described in the memorandum and the email, and the content of the intelligence information that disappeared and whose existence was first discovered thanks to these documents.
- To summarize this chapter: Malka gave his incriminating statements against Fischer in the midst of negotiations with the aim of becoming a state witness and enjoyed a privilege that prevented the use of his statements. In practice, Malka's statements already constituted at this stage a 'consideration' that he gave as part of the state's witness agreement, a fact that has enormous significance in assessing their weight, as it emerged when he returned to testify in 2022, after the proceedings at the Bar Association. Despite the great importance of the date on which Malka became a candidate for a state witness – and perhaps because of this importance, and in order to give his statements evidentiary force that in practice did not exist – the Department for the Investigation of Police acted, first and foremost through the agreement signed by Saada on June 4, 2015, in order to create the misleading impression that the negotiations with Malka began only after the indictment was filed, and as if Malka gave his incriminating statements of his own free will. without receiving any benefit against them, a matter that he says gives completely different weight, in contrast to a series of reliable evidence.
Representatives of the Department for the Investigation of Police argued in court, time and time again, in the most binding manner, that there had been no negotiations before the indictment was filed; Sa'ada testified so under warning; And also Scherzer – and all this in contravention of clear evidence, including a document that Saada himself wrote. It is difficult to overstate the severity of the conduct and the damage it caused to the defense of those defendants against whom the Department for the Investigation of Police sought to make use of Malka's words.