Ofer - Stone Throwing, Interrogation of Witness

Translation: Marganit W.

An Attorney’s dilemma

We observed the trial of a juvenile defendant. The judge instructed the typist to write down and then hand over to us the following instructions: “I allow Ms. Kaniuk and Ms. Mansbach to be present in court, provided they understand that the hearing is ‘in camera’ and the name of the defendant and the content of the hearing must not be published.”

The defense attorney asked us to step outside to talk with her. Apparently, she needed to share her concerns with someone. She told us that her client is physically disabled and also suffers from some mental retardation. He proudly admitted the violations he is accused of. The attorney maintains that the obvious physical handicap puts in question his ability to throw rocks. However, the kid is so proud of his ability to “be like the other kids” and be prosecuted like them, that he insists that he threw rocks like all the others. He objects to his family and the attorney’s attempts to portray him as “special” in order to obtain a more lenient sentence. He was vehemently against such a line of defense.

The attorney recognizes the dilemma: she wants to respect the juvenile’s wishes and his psychological needs, but is also compelled to bring up his disabilities in order to avoid long incarceration.

It is clear to the family and to us - and it is relevant to point out - that the child’s culpability is not even in question here. Even without the claim of disability (that puts in question his very ability to throw rocks) a child’s self-incriminating admission should not be admissible in court.

Courtroom 7

Judge: Hanan Rubinstein

We entered in the middle of a hearing, when Atty. Fadi Qawasme, who defends a young man from Jilasoun and tried to question the reliability of a witness who had incriminated his client: the witness claims he saw the defendant throw rocks. The witness – the only one incriminating the defendant- has given a “laundry list” covering three different incidents where he allegedly saw the defendant.

The attorney claims that the witness has supplied the names of many people he knows in the village, without linking them to any specific incident. The witness merely says that the defendant was with those people when they threw rocks.

Moreover, the defense cites another case from the witness’s testimony: it concerns a funeral, but there the witness gives no details and he is mistaken about the date. Such testimony, states the attorney, is unreliable and misleads the investigators. As for incidents where the witness allegedly participated, there was no investigation of them. The attorney wonders how the witness is capable of remembering so many people who did or did not attend a certain event. Not to mention that he was interrogated a year after the events had taken place. In order to prove such charges, all the other implicated people should be investigated, since here he is a single witness testifying against the defendant.

The prosecutor counters that the witness is reliable since he refers to all the incidents in the indictment and has something to say about each of them.

Justice Rubinstein examines the testimony. It was given in 2015 and refers to an event taking place in 2014 and to the witness’s history. In the end the judge opines that not much time had elapsed between the events and the testimony, so he cannot accept the claim that the witness cites random names. Moreover, there is going to be a cross-examination later, so the court will form an opinion about the witness’s veracity.

But even before the cross-examination, the judge volunteers that he is impressed with the witness’s reliability. It turns out that the witness has been testifying and incriminating others for years. When he was 15, he gave names of 3 people accused of rock throwing, and in 2011 he testified against 4 others. Then in 2013 against 6 people, and in 2014 he implicated 16 people he claimed were throwing rocks, all residents of Jilasoun, where he lives.

Justice Rubistein: “The changes in numbers suggests – perhaps – that he cites from memory and it is not a fabrication. After all, he could have given 16 names in 2010, 2011 and 2013. There are testimonies of other people who admitted to throwing rocks on those occasions” (although none implicated the defendant). This increases the witness’s credibility (namely, the fact that there are many testimonies of this incident proves in the judge’s eyes that the defendant is linked to the incident). Thus, the judge orders the defendant to remain in custody until the conclusion of the proceedings.

Thus, we received a lesson on memory and reliability from the judge – a new theory of brain science. We also learned that when specific persons admit to participating in an incident, it proves that others on the list- who do not admit to being there – were also there.

This, of course, applies to Palestinians under military rule.