The 'dump' files
- During the hearing of the case, it became clear that during the interrogation, the investigators of the Department for the Investigation of Police copied the full contents of the mobile phones of a number of interrogees, including Malka, the state's witness, and defendants 6-7. The contents of the devices were copied in full, without filtering or omission, into files known as 'dumps', which the Department for the Investigation of Police knowingly did not make available to the defense, nor did it disclose to the defense the actual copying of the contents of the phones.
As I will detail below, the Department for the Investigation of Police, the failure of the Department for the Investigation of Police to make the dump files available to the defense, as well as its conduct after the existence of the files were discovered, made the hearing of the case cumbersome and prolonged the hearing to a considerable extent, wasted a very large amount of judicial time, and dozens of meetings were devoted to this matter, inter alia, due to the failure to comply with judicial decisions and to impose unnecessary difficulties on the court and the defense.
This is especially true in light of the enormous importance of the content of the telephones for protection on the one hand, and the fact that these are the phones of state witnesses on the other, and in view of the fact that it was easy to find a mechanism that would have solved the matter.
- The preoccupation with the dump files was one of the most complex, long and exhausting episodes of the process. It actually lasted five years (2017 to 2022), of which four years were spent sorting and filtering tens of thousands of digital files, under the watchful eye of the court, in parallel with the hearing of the evidence. The intensive section of the 'dump affair' spanned about a year, from the discovery of the dump in Spitzer's testimony on February 13, 2017, to the adherence of the screening and filtering mechanism of the digital products within the framework of the main proceeding, in accordance with the principles set out in the framework of requests to review and copy investigative materials submitted by the defense to another panel in this court, and in the appeals filed by the state to the Supreme Court against those decisions.
The aforesaid testimony of Spitzer (as well as of Superintendent Kobi Forleiter of the Evidence Extraction Division at Lahav 433) was heard, in accordance with my decision of February 2, 2017 (p. 1142), in deviation from the order of witnesses planned by the accuser, due to the defense's objection to the admissibility of the digital products produced from the mobile phones of the defendants and the state's witnesses, and given that some of the devices were returned to their owners. I ordered the receipt of the products conditionally, and at the same time the hearing of the testimony of the computer researchers who were involved in the production of the materials, in order to verify the fulfillment of the basic admissibility conditions, as an 'evidentiary anchor' for conditional submission. The plan was to hear the investigators' testimonies on February 13, 2017 and February 16, 2017, immediately after the state's testimony ended, so that Malka's testimony could begin on February 20, 2017. However, the information discovered in Spitzer's main interrogation on February 13, 2017 regarding the existence of 'dump' files that constitute copying Full of the contents of the mobile devices, shocked the defense, which strongly protested that the presence of the files had not been disclosed to it at all in the many proceedings that had been conducted since the indictment was filed in connection with the examination of investigative materials.
- The very next day (February 14, 2017), Fischer's lawyers filed an urgent motion to disqualify the admissibility of the state's witnesses' mobile phone products, or to postpone Malka's cross-examination until the "dump" is examined by a defense expert. For about a month, an attempt was made to resolve the matter as part of the main proceeding, while I granted (on February 23, 2017) the defense's request that Malka's cross-examination not begin until all the material materials from the mobile devices were transferred to the defense. Malka's main interrogation spanned three days, and ended on February 27, 2017. After that, a number of additional discussions were held in order to try to formulate an agreed search mechanism for the 'dump' files copied from Malka's three mobile phones. At the same time, an expert on behalf of the defense came to the offices of the Department for the Investigation of Police several times and examined the aforementioned files there. When I saw at the hearing on March 20, 2017, that an agreed solution was not in sight, and that the start of Malka's cross-examination continued to be delayed, I expressed my displeasure at the situation that had been created, and noted that I see the prosecution as being responsible for the fact that the trial of a defendant who is in electronic handcuffs is being delayed due to the discovery of material investigative materials that were not handed over to the defense for nearly two years after the trial began (1689-1694, 1708, 1718-1719). At the end of the hearing, I instructed the defense to proceed according to Article 74 and I added that the cross-examination will not begin until a binding decision is made on the matter, unless an agreement is reached between the parties on the outline of the search (p. 1725).
- The next day (March 21, 2017), Fischer's request was filed according to Article 74 To the Chesdap (the fifth application in the present proceeding) to Judge H. Mack-Kalmanovich. Responses to the request were submitted, a hearing was held, and on June 13, 2017, a decision was issued instructing the Department for the Investigation of Police to transfer to Fischer and the other defendants who wish to do so, all the material relating to a closed list of file types requested by the defense, except for material that is prohibited from being allowed to be examined or whose nature is clearly irrelevant. In the decision, the state's position that search terms should be allowed to be perused, and it was determined that in the special circumstances of the application, the balancing point between the various interests moves in the direction of expanding the right to inspect the seized material, since it is not possible to assume that most of the seized material is irrelevant. At the same time, the state's position was accepted that the review, including by defense experts, would be conducted at the offices of the Department for the Investigation of Police or in another place to be determined by it.
The hope that the decision in the proceeding according to Article 74 By the grace of God, he would bring an end to the saga and allow the renewal of Malka's testimony, which soon faded. Two days after the decision was rendered (June 15, 2017), it became clear in the hearing before me that the parties disagreed on the practical interpretation of the decision. I have instructed the prosecution to immediately transfer to the defense the materials about which there is no dispute. The problem is that this provision did not advance the transfer of the materials either, until on June 21, 2017, it was given by a decision in which it was determined that "The intolerable situation in which the proceeding finds itself should not be allowed to continue, especially at the stage in which it is located, and the time has come to set a limit as to the date of completion of the transfer of the investigative materials". I added there that "Although the indictment in this case was filed more than two years ago, the accuser has not yet handed over all the investigative materials to the defense" which she was obligated to transfer as part of a number of proceedings heard in this court and the Supreme Court, and that the decision of Judge Mack-Kalmanovich of June 13, 2017 indicates that the review of the digital files that have not yet been transferred is necessary to preserve the defendants' right to a fair trial. Therefore, I ordered as follows: