The state has agreed to let a man convicted in the 2004 murder of Judge Adi Azar to send cigarette butts that were collected from the crime scene for DNA testing as part of his request for a retrial to prove his innocence, after the High Court of Justice suggested it do so.
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The prosecution had originally refused to hand over the evidence to Yitzhak Zuziashvilli, based on the doctrine of finality of judgment. But during a hearing last week on a petition Zuziashvilli had submitted to the High Court, Justices Elyakim Rubinstein, Hanan Melcer and Anat Baron suggested that the prosecution reconsider because they planned to accept the petition.
The Public Defender’s Office, which had joined Zuziashvilli’s petition, cited data from the Innocence Project in the United States, which is dedicated to exonerating wrongfully convicted individuals through DNA testing. According to the data, DNA tests have led to the exposure of 329 wrongful convictions since the project was launched in 1992. In 149 cases, the testing led to the identification of the real criminal.
In addition to finality of judgment, the prosecution objected to the testing because Azar’s widow strenuously objected to have the case reopened, saying it would cause the family pain. To this defense attorney Shay Hemo countered with a quoted from Judge Dafne Barak-Erez in a different murder case in which additional forensic testing was requested by a defendant, who said, “The opposition of family members cannot be the only or determining factor, since the fate of the defendant is also at stake.”
The Public Defender’s Office criticized the policy of the state prosecution, which it said poses many obstacles to conducting testing on evidence for the purpose of requesting a retrial. According to the Public Defender’s Office, this policy has blocked the discovery of wrongful convictions and other errors in ostensibly conclusive verdicts, errors of the type that have been exposed in other countries by post-trial testing conducted on pieces of evidence.
The Public Defender’s Office cited seven instances in which it had sought help from the prosecution in locating investigative material to examine it after a trial. In four of them, the defense attorneys wanted the evidence to undergo scientific testing. In two of these cases the evidence had been destroyed, even though these were murder cases, for which evidence is meant to be kept forever. In the two other cases, the prosecution simply refused to give them access.
In the other three cases the defense attorneys wanted to read through and photocopy investigative material, but in two of them the material was never handed over, despite repeated requests.