The Supreme Court has ordered a new trial for a man who served six months in prison for sexually abusing a patient in the medical facility where he worked as a counselor. The court accepted Abdul Kadar Salaam’s claim that his attorney had been negligent in defending him by failing to read medical records which showed that his client’s accuser was schizophrenic.
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Salaam finished serving his six-month sentence long ago, but has always proclaimed his innocence and is pushing to clear his name.
The attorney general had resisted the request for a retrial, arguing that there had been no negligence, only a line of defense that didn’t pan out. But Justice Edna Arbel last week accepted Salaam’s argument that his previous attorney hadn’t properly accessed medical records that could have helped his case.
In 2003, Salaam, a 55-year-old resident of Rahat who is married and a father of five, was charged in Be’er Sheva Magistrate’s Court with three counts of sexually abusing a patient in the medical facility in the south, where he worked as a counselor. He denied the charges. In court, his lawyer, whose name Arbel blocked from publication, asked to see the plaintiff’s medical file so that a psychological profile could be prepared in an effort to establish a reasonable doubt regarding the patient’s version of events.
The court, however, rejected the attorney’s request, and also rejected a request by the defense to perform a medical examination of the plaintiff. In the end, Salaam was convicted and sentenced to six months in prison.
Salaam appealed, and the Be’er Sheva District Court ruled that the medical file must be submitted to Salaam’s attorney so that a professional could examine it on Salaam’s behalf. The district court also returned the case to the magistrate’s court, so the latter could determine the implications of the medical opinion on its verdict.
But while the medical files were submitted to the court, Salaam’s attorney never came to look at the material or photocopy it; nor did he appear at hearings called in the case. In the end, the magistrate’s court bumped the file back up to the district court and asked it to rule.
The district court accepted part of the appeal, and Salaam was ultimately convicted of only one count of sexual abuse and his sentence shortened to six months. Salaam tried to appeal to the Supreme Court but it refused to hear the case.
Salaam didn’t give up. Last June, he engaged a different attorney, Meital Ron, who petitioned the Supreme Court for a retrial based on the negligent behavior of his previous attorney. Ron obtained the plaintiff’s 150-page medical file, which documented the plaintiff’s behavior when she was hospitalized in the psychiatric ward. The documents were sent to an expert, who wrote that in his opinion the plaintiff’s schizophrenia made it hard for her to distinguish between reality and fantasy, and there was no way to be sure that her delusions did not affect the reliability of her testimony.
Arbel accepted Ron’s petition and ordered the retrial, writing that “the institution of a retrial expresses, first and foremost, the judicial system’s recognition of the fact that it isn’t immune to errors.”