Ofer - Plea Bargain, Stone Throwing

Translation: Marganit W.

We waited outside the gate for 45 minutes. Our turn came after every single Palestinian waiting in the shed had been called by name and admitted to the compound. The invisible entity behind the dark glass keeps perfect order but not very efficiently: some of the admitted family members will have to wait for trials taking place in the afternoon. In the meantime, we are about to miss the trial taking place right now.

Courtroom 2

Judge: Major Sharon Rivlin-Ahai

Morning Session:

We attended 4 of the 22 cases in the docket.

Four young defendants are accused of throwing objects (rocks) and/or manufacturing and throwing incendiary objects. One defendant – whose case is concluded today – requested to change his defense, Atty. Bargout, who had reached an agreement with the prosecution. The judge said she was under no obligation to change his defense. But Atty. Bargout had already gone outside to find the attorney that the defendant wanted. The defendant’s parents were present in court but did not intervene. We later learned - in another hearing – that the request to change attorney is common. The judge’s decisions were based on agreements reached between defense and prosecution in three of the cases involving 18-20 year old boys who admitted to similar violations.

The penalties were the usual ones: jail time (between 4.5 and 5 months); suspended sentence (between 6 and 6.5 months for 2-4 years) and fine (between 1000-2000 shekels).

The differences in penalty is explained by the special circumstances of each defendant, such as age at the time of the crime, criminal record, remorse, acceptance of charges during the interrogation etc.

Afternoon Session:

Continuation of the hearing of Islam Dar Ayoub, ID 402197834 – Case 1367/11

Islam Dar Ayoub – under house arrest – came with his father to attend an evidentiary hearing in his case. He was arrested on 23.1.11 on charges of rock throwing during a Friday demonstration in Nabi Saleh.

He was 14 years old at the time. Since I last saw him last in court he has changed from child to young man. (for reports of his trial during the last year and a half, see our site).

Only one out of four prosecution witnesses reported to court: Sgt. First Class Yuval Tiano who served as the regiment’s photographer during the demonstration on Friday 12.11.11. He was summoned to testify about the testimony he gave to the police on 23.11.11 regarding the demonstration.

His testimony was the basis for the investigators’ charges against Islam.

In reply to the prosecutor’s questions, he stated that he had photographed the rally and the disturbances that ensued, including throwing rocks, blocking roads, burning tires and hurling gas grenades. He claimed that the purpose of the photography – which was ordered by his commander – was identification and incrimination. He professed to have a good memory, capable of remembering hundreds of photos taken during Friday demonstrations, including those in the folder he handed to the prosecution.

In cross- examination the defense wanted to know what treatment and editing the photos in the folder had undergone. He replied that he had given the footage to the Intelligence Dept. but he did not remember to whom exactly. There is no record of it. Once he handed over the memory-card with the photos, they were developed and edited. He was not the one choosing what would go into the booklet nor did he provide the captions; he did not cut or blow up the pictures nor did he write “Nabi Saleh Demonstration 12.11.10” on the file, or make any other marking. He did not know if after printing the pictures, the photos were kept on the memory-card. Maybe someone erased them, he said.

The witness did remember that while testifying to the police, he was shown two booklets, but today he can’t say whether he was the photographer of the other booklet, which is not included in the file given to the defense.

The defense objected to submitting this collection of photos by this witness as testimony. She demanded the original, unedited photos be presented to the court, not those manipulated by the investigators who prepared the indictment.

Islam’s father approached me during the hearing and told me that last Wednesday (May 16) at midnight, soldiers came to their house and took photos of Islam…

The case was scheduled for summation on 21.6.12.

Courtroom 5

Judge: Major Meir Vigiser

Prosecutor: Lieutenant Avishai Kaplan

The docket contains 33 cases.

Muhammad Mussa Aliyan Aladam, ID 905460150 - Case 2292/12

A 41 years old father of 5, living in the mountains far from any village (12 km West of the village Beit Ula), tills the land and tends his flock.

His defense, Atty. Jamal Hamed agreed to a plea bargain whereby Muhammad will admit that for two weeks before his arrest he had been in possession of an improvised hunting rifle, without obtaining a permit from a military commander. The prosecutor claimed that the weapon’s status is in question and he moved it be confiscated.

The defendant, who speaks fluent Hebrew, explained to the judge why the circumstances of his life necessitated keeping a gun to protect himself, his family and his 100 head flock against criminals, junkies and wild animals. He has already been in detention for two months, unable to communicate with his wife who is in Jordan for open-heart surgery. There is no one to take care of his flock and his heavy investment in developing his farm is in danger of being lost.

The judge was impressed by the defendant’s heartfelt argument and decided to accept the plea bargain:

91days of time served (from the day of arrest), 3 month suspended sentence and a 2000 shekel fine (or 2 months in jail). The judge also ordered to confiscate the gun.

Before pronouncing his verdict, the judge predictably said that he was not bound by the agreement between the sides.

To the best of my recollection, such announcements accompany all decisions involving plea bargains. But in this case, before detailing the penalties the judge said, “Considering the defendant’s statement, I will recommend to the prison commander to allow the defendant to contact his family, and in view of his clean record, to consider reduced penalty: he should get a third of the jail time off for good behavior… The defendant’s statement concerning the need to protect himself should be taken into account as well as a  permission to keep a gun for this purpose.”

If the judge is not bound by the plea bargain, why did Justice Vigiser not hand down a lighter sentence right away (e.g., 60 days which coincide with the time he spent in detention from his arrest). Such a decision would have corresponded to his recommendation to the prison authorities.