D

efense attorneys for Shaul Elovitch, the former controlling shareholder in telecommunications giant Bezeq, showed up at the Jerusalem District Court last month equipped with a surprising argument that caught the state prosecution off guard: Over the past few days, the defense attorneys told Judge Rivka Friedman־Feldman, they had found major discrepancies between the police transcript of one of the interviews with their client’s son, Or Elovitch, and what was actually said during the interview. "We became aware of a serious matter," said Attorney Michal Rosen־Ozer, "and that’s why Mr. Elovitch insisted on attending today’s hearing … They’re hiding the truth from us. We won’t stand for it … We won’t allow the case to be turned into a game of blind man’s buff. They’re keeping us in the dark."

The discrepancies in question concerned a claim made by Elovitch several months earlier and according to which the police subjected his son to improper duress in an effort to convince Elovitch to replace his defense lawyer, Attorney Jack Chen. Elovitch Sr. charged that the police investigators believed that Chen was preventing him from striking a deal or turning state’s witness, so they wanted him replaced, and pressured his son to that end. The state prosecution denied the allegations, and Chen’s name doesn’t appear in the police transcript of the interview with Or. On the other hand, an independent transcription of the recordings compiled by the defense mentions Chen’s name several times:

Or Elovitch: My lawyers spoke to Jack.

Investigator: And Jack doesn’t see things your way?

Or Elovitch: I don’t want to go into that with you. I don’t … I have issues with Jack.

Investigator: You also have your own wishes.

Or Elovitch: I don’t know ... I won’t do it … I only know that my lawyers told me that if there is a deal, Jack won’t be able to do it, so they won’t make one.

Rosen־Ozer argued that the accurate transcript of the recording clearly shows that, contrary to Attorney General Avichai Mandelblit’s denial, police did pressure Or Elovitch to persuade his father to replace his legal counsel. This interpretation of the events may be open to argument, but the fact is that any mention of Chen’s name had miraculously disappeared from the police transcript and had been replaced with ellipses. Since these were the only passages in which transcription errors were found, the defense lawyer charged, they could only come to one conclusion: "It’s no coincidence. What we have here is concealment."

The prosecutor in the case, Attorney Liat Ben Ari, promised to look into the matter, but vehemently denied any malicious intent. "Ellipses often appear [in transcripts]," she told the judge. "Your Honor has heard recorded interviews like that and others. It’s hard to transcribe them. Questions are asked, and answers are given, and people talk over one another. You hear the main things that are said and those appear in the transcripts." The judge, however, wasn’t convinced. "Everything needs to be included. And when something is unclear, you write ‘Indistinct,’ and you don’t put ellipses. Are there more incomplete transcripts? Perhaps there’s something important in the transcripts, or in one of them?"

The answer to the judge’s question is, in all likelihood: Yes. And the above exchange won’t be the last in connection with the sea of transcripts and recordings in Cases 1000, 2000 and 4000, which also involve Prime Minister Benjamin Netanyahu.

As it turns out, shortcomings and errors in the transcription of recordings, wiretaps and other products of an investigation are not a rarity. Ask any criminal defense attorney - and there’s a good chance you’ll hear a story about a word left out, the attribution of statements to the wrong individual, and even things that were never said at all. Even just a word or two can make the difference between acquittal and conviction, between years behind bars and a lenient sentence, between a fair trial and a miscarriage of justice.

In recent weeks, Shomrim has reviewed a series of criminal cases in which errors appeared in their respective transcripts. An analysis of these cases reveals that the phenomenon can sometimes work in favor of the defense, and at other times, the prosecution. Furthermore, examples of transcription errors appear in large־scale cases involving high־profile individuals in which extensive resources are invested, as well as investigations involving "minor" offenders that were completed in haste. "It’s a systemic problem," says retired Judge Shelly Timan, who presided over criminal cases at the Tel Aviv District Court. "Is it deliberate or the result of carelessness? I don’t know."

Zvi Segal, former deputy president and head of the judicial panel for serious crimes and criminal appeals at the Jerusalem District Court: "An admin clerk sits down, listens, and transcribes. He’s only human. As a judge, even if neither side had raised any arguments regarding the transcript, I wasn’t willing to trust it. I’d listen to the recording myself, or get my court aide or intern to listen to it to make sure the transcription was accurate."

Zvi Segal, former deputy president and head of the judicial panel for serious crimes and criminal appeals at the Jerusalem District Court, puts it down to a combination of human error, laziness, and a lack of attention to detail. "An admin clerk sits down, listens, and transcribes. He’s only human. As a judge, even if neither side had raised any arguments regarding the transcript, I wasn’t willing to trust it. I’d listen to the recording myself, or get my court aide or intern to listen to it to make sure the transcription was accurate."

How common were transcription errors?

"It happened to me all the time, with evidence that was based on them during the trial."

Concerning matters of substance?

"Very substantial matters. After all, the moment the prosecution or defense submits a recording to the court, it becomes important material by definition."

This article concludes with several examples of significant transcription errors. Before we dive into the details, however, it’s worth remembering that Attorney General Avichai Mandelblit himself is very intimately familiar with the problem.

Did a sloppy transcription of recordings in the Harpaz affair - a 2010 scandal in which Mandelblit was briefly suspected of having helped military brass cover up a smear campaign - prompt the questioning under caution of the attorney general in connection with the case? Well, as it turns out, he appears to believe so.

Here’s the background: Boaz Golan - a Channel 20 TV host and the owner of a website known as 0404, who was party to the recent smear campaign waged by the prime minister and his associates against Mandelblit - appealed via his lawyer to then־justice minister Amir Ohana for the establishment of a commission of inquiry to look into Mandelblit’s appointment as attorney general. The request was based on material obtained by Golan from recordings of Mandelblit concerning the Harpaz affair. Included in the request were a number of broken and partial quotes from the transcripts of the recordings. One read as follows:

"Starting to dig around for it [the so-called Harpaz Document - I.R.] now wouldn’t be the right thing to do … I’m going to end up in this story too."

The sentence creates the impression that Mandelblit himself is improperly connected to the explosive document, and may fear that this could come to light. There's just one problem; those weren’t Mandelblit’s exact words. The full quote is as follows:

"I’m going to end up as another witness in this story too."

The additional three words, "as another witness," can make a big difference, and lead, for example, to an interpretation that indicates completely legitimate conduct. According to Mandelblit, he was trying to explain his reluctance to actively seek out the document among senior Israel Defense Forces officers.

Daniel Harpaz, owner of a transcription and voice recognition: "The jailhouse snitch in the holding cell often sits a little too far away from the suspect, there’s an echo in the room, and sometimes people interrupt and talk over one another. The transcription work, as a result, is difficult, and mistakes do happen."

The misleading wording appeared in the police transcript, probably due to human error. In 2015, when Mandelblit submitted his approach to the committee appointed to review candidates for the post of attorney general, he made mention of the matter: "The omission of the words, ‘as another witness,’ from the transcript," he wrote, "dramatically changed the meaning of the sentence, sparking suspicions that I told the aide to the chief of staff that I was going to end up involved or implicated in the affair. And that wasn’t the case." According to Mandelblit, the omission in question wasn’t the only transcription error that played against him.

In light of the crucial significance of every word in a transcript, Mandelblit wrote: "One would assume, or at least hope, that the investigative authorities would pay special attention to the written transcript ... to ensure its accuracy … Regrettably, this doesn’t happen."

Transcription errors: Who mentioned Lieberman?

Whereas in the past a large number of transcripts were compiled by police officials, today the recordings from police interviews are passed on to private transcription companies that specialize in the work - a move you might expect would improve the situation, given that the Israel Police spends millions of shekels a year on professional translation and transcription services. The problem is, says Attorney Ziva Agami Cohen, former Israel Police National Fraud Unit chief and current defense lawyer, that some companies aren’t as professional as they claim to be. "The company doing the transcription has to be very professional and equipped with high־quality audio devices. I’m not convinced that this is always the case. The transcripts are riddled with errors. This stems from a combination of factors, such as the fact that the police press for the transcriptions to be carried out quickly because the investigation depends on them."

Sometimes, Agami Cohen adds, "if it’s a short transcription, and because they need to know what’s happening during an ongoing investigation, the investigators are asked to do the transcribing themselves."

An example of a sloppy transcription carried out by police officers can be found in a case that has been underway in recent months at the Central District Court against Shimon Azoulay, a well־known Likud activist who also served in the past as a political aide to Netanyahu. In March, Azoulay, former deputy CEO of Bi־Bi Roads Earthmoving and Development, which carried out projects for Israel’s Public Works Department, was indicted on charges of brokering a bribe. According to the state prosecution, the company paid cash bribes to various parties, with Azoulay serving as the courier.

A key piece of evidence in the case is a recording of a conversation between Israel Bar, who was one of the owners of the company, and an excavation contractor by the name of Ben־Zion Suleimani. During the conversation, Bar speaks openly, and in a somewhat boastful and flippant fashion, about the numerous payoffs the company is alleged to have made. He’s heard saying, among other things, that the former director־general of the Public Works Department, Alex Viznitzer, used to demand money from Azoulay, with the intention of passing it on to Yisrael Beiteinu leader Avigdor Lieberman. This is how the conversation went:

Bar: Viznitzer would come and say to Shimon: Listen, Lieberman needs half a million shekels.

Suleimani: That’s what he’d say to Shimon?

Bar: Yes ... In other words, it found its way to Lieberman.

The recording, which was submitted last year to the District Court as part of Azoulay’s trial, is of good audio quality, and the transcription work wasn’t outsourced to a professional company. It appears, however, that the police officer who transcribed the recording wasn’t sufficiently focused on the job. The police transcript doesn’t include any names, and the individuals engaged in the conversations are listed only as "Party A" and "Party B." Furthermore, at some stage, the transcriber confuses the two. As a result, he attributes the statements about the transfer of money to Lieberman to the excavation contractor, Suleimani, and not Bar, who actually made them. This has serious implications: Suleimani had no ties with the individuals involved and knew nothing about them first־hand. If he’s saying such things, he’s probably just repeating hearsay. Bar, on the other hand, was a partner in the company that worked with the Public Works Department. Coming from him, the statements raise important issues that require looking into. To clarify, the allegations made here concerning Lieberman were never investigated or confirmed. In this instance, thanks to the alertness of the lawyers, the mistake was eventually corrected.

A case involving a soldier charged in May 2018 with possession of drugs offers another example of sloppy transcription. One of the interviews with the soldier was transcribed by a professional transcription company, whereas a second interview was transcribed by a Military Police official. The soldier’s defense attorney, Shai Roda, received the two transcripts some two months after the indictment was filed, only to discover that the transcript compiled by Military Police was far from accurate. Roda immediately asked the court to order the transcription redone.

According to Roda, substantial errors appear in transcripts compiled not only by officials, but also in supposedly more professional transcriptions carried out by external companies. "The company to which the transcription work is outsourced doesn’t testify in court," he says. "The transcripts it compiles don’t come with an affidavit in which the company swears that the transcript matches the recording. They have no vested interest in harming the accused, but sometimes they simply do a poor job. That's why, in every one of my cases, I listen to everything, I watch hours of recorded interviews, and I never trust the transcripts."

Sound quality: Ten months in jail for nothing

Blame for flawed transcripts does not rest solely on the shoulders of the person listening to the audio. Last April, for example, the confession of a suspected drug dealer, represented by Roda, was thrown out on the grounds that the transcript was incomplete due to the poor quality of the recording. "Unfortunately, some of the statements made during the interview weren’t adequately picked up by the audio component of the visual documentation," the court ruling read. "We tried listening to it ourselves, and insofar as was possible, we filled in the gaps … We’d like to point out the need to upgrade the recording system used by the investigators in order to enhance the sound quality."

It emerged, the judges explained in their ruling, that the confession was obtained, inter alia, via a material violation of the suspect's right to consult a lawyer, thus raising "significant doubts as to its veracity." The defendant argued in court that the police interviewer had conditioned his right to counsel on his willingness to cooperate with her - a claim she denied. And the transcript was unclear. "A painstaking review of the video," however, revealed to the judges that the defendant was right.

Transcribing conversations involving jailhouse informants is another task that poses several tough challenges. The suspect often converses with the snitch indistinctly or in a whisper, aware perhaps of the possibility that they’re being recorded. Convicted murderer Roman Zadorov’s infamously confessed during a conversation with a jailhouse informant to killing schoolgirl Tair Rada, but the voiced heard in the recording are whispering mumbling ־making transcription particularly challenging.

"Recordings of conversations with jailhouse informants are often of poor quality," says Daniel Harpaz, owner of a transcription and voice recognition business that provides services to criminal defense attorneys. "The jailhouse snitch in the holding cell often sits a little too far away from the suspect, there’s an echo in the room, and sometimes people interrupt and talk over one another. The transcription work, as a result, is difficult, and mistakes do happen."

Adv. Shai Roda: "The company to which the transcription work is outsourced doesn’t testify in court. The transcripts it compiles don’t come with an affidavit in which the company swears that the transcript matches the recording. They have no vested interest in harming the accused, but sometimes they simply do a poor job. That's why, in every one of my cases, I listen to everything and I never trust the transcripts."

The situation is even worse when the police investigators don’t even bother to transcribe the recordings at all. Two Thai agricultural laborers were convicted recently by the Central District Court of importing a package containing dozens of grams of methamphetamine into Israel. The two had been in custody for some 10 months when the conviction was handed down, in keeping with a plea deal. Under the deal, the two were sentenced to the time served plus a few more days.

Initially, the charges against the two were much more serious. The defendants, for their part, claimed that the Thai translator had distorted their words. Somewhat ironically, it wasn’t until the translator himself was arrested on suspicion of involvement in other drug deals that the prosecution agreed to look into the two laborers’ claims and send the recordings for transcription. What followed next can only be described as farcical:

"We contacted the transcription company and were told that they had a problem and were short of translators," the prosecution told the court during a hearing in early March 2020. In response, Judge Ami Kobo ordered the prosecution to complete the transcription process by the end of the same month. On May 26, however, the state’s attorney informed the judge that she had yet to receive the transcript herself. When it did eventually arrive, the critical errors were exposed, and the plea deal was signed.

Attorney Itay Rozin, defense counsel for one of the laborers, summed things up in court as follows: "He sat in jail for 10 months for nothing; and for months on end, we remained in the dark concerning the true contents of the questioning and the statements he made."

Cost vs. missed opportunity: A missed murder confession

"Peoples’ lives are at stake," says Attorney Yaron Kostelitz, a prominent defense lawyer who specializes in white־collar crime and who has represented both Netanyahu and Lieberman in the past. "Therefore, although it’s a Sisyphean task, my office listens to all the recordings in every case. Experience has taught me there will always be errors in cases involving a large number of transcripts - and they almost always turn out to be significant mistakes."

Retired Judge Segal agrees that this is the only way to deal with the problem. "My advice to any defendant faced with recordings against him is to listen to them and not to blindly trust the police transcription," he says.

But sometimes they’re dealing with huge amounts of recordings

"Huge doesn’t even come close. Massive amounts! But you have no choice. You can’t take the risk if you’re representing a defendant."

During the recent hearing on the errors in the transcription of Elovitch’s questioning, Jack Chen said the defense "appears to be left with no alternative but to listen to thousands, if not tens of thousands, of hours of recordings in the case, to compare the audio to the transcripts."

"Have you listened to all the recordings?" the judge asked State Attorney Ben Ari. "Who’s supposed to check the transcripts to make sure they’re accurate?"

Ben Ari said she personally hadn’t listened to the recordings, but members of her staff had. "If things appear to be missing in certain places, we will notify the defense immediately," she said.

Now, at least, the recordings in the cases involving Prime Minister Netanyahu may very well be subjected to close scrutiny - but that’s certainly not the norm. Defense attorneys who don’t trust the state prosecution and choose to have the recordings transcribed anew by private companies often make significant discoveries.

A source at a private transcription company tells of a case in which he learned from a recording that the clients of the lawyer who requisitioned the work did indeed admit to the crime with which they had been charged - murder. The defense lawyer thanked his lucky stars that the police transcriber hadn’t heard the admission of guilt, and his clients were subsequently acquitted in court. "I’m bound by confidentiality agreements," the source says, "but I can say that this wasn’t the only time we found errors in transcripts that had dramatic implications in terms of the evidence in the case."

The question of the financial resources that the state prosecution and defendants can invest in transcriptions has come up in the Knesset and courts more than once. In the Ronel Fisher case, which is still ongoing at the Tel Aviv District Court, the prosecution refused to transcribe all the recordings of the police interviews. When the court ordered the transcription of "every recording or piece of documentation that may be of relevance to both parties, with particular attention to be paid to transcribing all the material that may be of assistance to the defendants," the state prosecution appealed to Supreme Court, charging that the demand was unreasonable from a cost point of view.

An interesting response to the appeal came from Ruth David, one of the defendants in the case and the former Tel Aviv District Attorney, who argued that if the prosecution's position was upheld, acting for the defense in criminal proceedings would become a particularly costly affair, and the risk of convicting innocent people would increase. While the state prosecution and police have a good idea of the contents of the recordings, as they were the ones to collect the information in real time, the other side "is starting from scratch."

The Supreme Court, however, upheld the position of the state, so today, a wealthy defendant who can send all the recordings to a private transcription company is a lot less vulnerable than a defendant with meager resources who’s forced to transcribe the recordings himself or simply place his trust in the prosecution.

According to retired District Court Judge Segal, "The moment the state chooses to file an indictment, it also has the means, including access to unlimited resources in terms of transcribing the recordings. Dropping such a thing in the lap of a defendant is problematic, and could turn into an inconceivable budgetary pit. It’s all a matter of proportionality."

We approached the Israel Police for comment on the claims raised in the article. The various spokespersons chose to make do with the following response: "The Israel Police receives transcription services from a civilian company that operate in keeping with strict standards and a high degree of quality control throughout all stages of the process. If the transcription process cannot be completed due to a technical issue, the company will notify the investigation unit. And if a transcription requires redoing, the matter is taken care of so as not to hinder the investigation process.

"Some of the transcripts are compiled by the field units as part of ongoing investigations, in accordance with the urgency of the matter and the discretion of the lead investigator in the case. In such instances, the investigating unit oversees the quality of the transcription."