Ofer - Stone Throwing, Sentence
Translation: Marganit W.
Judge: Major Amir Dahan
Prosecutor: Lieutenant Avishai Kaplan
Defense: Atty. Tarek Bargout, standing in for Haled Alaraj who was sick
Three more chapters in the never-ending saga of Malek Mahmoud Alalame
On Monday 12.11.12 an atmosphere of impatience prevailed in the court. The prosecution presented its summation, as promised. Malek complained that he had been summoned to Ofer three times only to be told that the trial had been postponed. His uncle, Yussuf Alalame asked the court to give its decision even in the defense’s absence for fear of another postponement.
Atty. Bargout, on behalf of Atty. Alaraj, promised that on Wed. 14.11. the defense would present its summation. Thus, the hearing was postponed by two more days.
The judge, then, explained that for the defendant’s sake, the defense should present its arguments, since up to now Atty. Alaraj had not challenged the testimonies given to the police (those that incriminated Malek), nor his admission during his interrogation. The charges against the defendant have so far not been contested. Now it is the defense’s turn to presents its arguments, or else, the charges may remain unanswered.
The core of the case, said the judge, is the defendant’s mental state. “It is my legal duty to protect him, and I have to consider if the postponement vitiates his defense. If the attorney does not present his summation by Wednesday, we cannot wait indefinitely. Until I hear the defense, I cannot hand down my decision. Perhaps the defense can adduce new arguments.”
Observing: Haya Ofek, Hava Halevi (reporting)
Judge: Major Amir Dahan
Prosecutor: Mughira Sarhan
Defense: Haled Alaraj (supporting himself on a cane)
Kinetic Energy and Potential Energy
On Wed. 12.11.12 the defense presented its arguments. They did not include the claim that the defendant is mentally challenged, that he did not understand the questions of the interrogators and that his admission that he threw rocks is meaningless. Equally unmentioned was the scene in court (reported in an earlier report) when the judge realized that Malek could not process the questions and could not answer them. What was mentioned was the report of the evaluation commission, the kinetic energy and the potential energy. The report is confidential but its conclusion is open and it is mentioned in the prosecution’s summation. It states that Malek’s mental deficiency does not exempt him from criminal liability.
The report raises an important question: was the commission objective or did its members know that they needed to decide criminal culpability of an Arab accused of throwing rocks, which is a security violation? If they knew it, what was the role of psychology and medicine and what was the role of the political views of the members of the commission?
We were educated concerning the question of kinetic and potential energy: if a person hurls rocks at a stationary target, he is using potential energy and the result is not serious. But when the rock is thrown from a moving vehicle, then kinetic energy is used and the results may be severe. The unlucky Malek happened to be in the second category, thus his culpability is greater. Knowing as we do that Malek, who was in the backseat of a car from which the rocks were thrown, is mentally retarded, those fine distinctions between different kinds of energy seem particularly ridiculous. The prosecutor, however, deemed three years in jail to be a fitting punishment for Malek, since, he earnestly claimed, Malek was the instigator of the attack and thus doubly responsible.
The judge read his decision (which he had written earlier): Malek was convicted on a charge of rock throwing, a charge never disputed throughout the entire trial. The defense mentioned the incriminator, who, it turned out, is also a client of Alaraj, and whose trial is still pending.
It was dark outside when we left the court.
Observer: Haya Ofek.
Last Act – Sentence
In its arguments the prosecution again invoked the kinetic energy since “this technique of throwing rocks is more dangerous than “regular” methods because it comes as a surprise to the targeted vehicle, resulting in swerving from the road and a possible accident”. The prosecutor also stated that “according to the testimony, and based on the defendant’s conduct in court, he understands what goes on and was well aware of the severity of his actions and their deadly potential.”
Well, I’m asking you, what was the point of sending Malek for psych observation and then to several commissions? The military prosecutor’s excellent power of observation is sufficient to determine Malek’s mental and psychological state. This learned diagnosis did not elicit any comment from the judge.
The defense pleaded for mitigation, considering the evaluation commission’s report, the mental and psychological condition of the defendant, his young age, clean record, the kinetic energy and accepted standards of sentencing.
Guiding principles behind the decision
Among other considerations: “…the court should view differently rock throwing at a moving vehicles… especially when it is carried out by sophisticated means that increase the potential for damage…”
Bear in mind that the “sophisticated means” are a reference to throwing rocks.
The judge returned to the kinetic energy, using physics terminology (ratio of mass and velocity) etc. He, too, mentioned the clean records of the defendant, and in the light of all the above, he sentenced Malek to 11 months in jail (starting with his arrest), 24-month suspended sentence, but no monetary fine.
In the nine and a half months that Malek spent in jail we often wondered if we actually helped Malek or harmed him by telling the court that he was retarded. Had it not been for all the evaluation committees, he would have been home a long time ago.