Israel's Supreme Court on Wednesday ordered the state to pay 300,000 shekels ($76,000) to a man who was acquitted after a 10-year trial. The defendant spent 185 days in prison and five and a half years under house arrest.
Supreme Court Justice Anat Baron berated the prosecution for withholding information that eventually led to the defendant’s acquittal. She also criticized both magistrate’s and district courts for ignoring this information and said the defendant had only been acquitted after requesting a retrial.
Salam Abdelkader, 57, of the largely Bedouin city of Rahat, was indicted in 2003 over allegations that he molested a female patient in a psychiatric institution where he worked as an instructor. He was charged with molesting her on three separate occasions.
Abdelkader denied the allegations. The prosecution refused to let his lawyer see the complainant’s medical file and a magistrate’s court convicted him on all the charges.
Abdelkader, married and a father of five, appealed to the Be’er Sheva District Court, which ruled that the withholding of the medical file breached Abdelkader’s right to due process. The court said the defendant would otherwise have been able to establish reasonable doubt.
But only in 2010 did the district court order the prosecution to give the medical information to Abdelkader. The information was submitted to the magistrate’s court, but Abdelkader’s lawyer never came to see it or photograph it. He did not attend the court hearings either.
The file included doctors’ opinions saying the complainant was suffering from schizophrenia. The file cited incidents in which she allegedly walked naked on hospital grounds, undressed in the streets and performed oral intercourse on other patients. In one incident she allegedly wrung a bird’s neck.
Although both the prosecution and judges were privy to this information, the court convicted Abdelkader for one alleged molestation and acquitted him on two others. He was sentenced to six months in prison and his request to appeal to the Supreme Court was denied.
After completing his prison term Abdelkader hired attorney Meital Ron, who obtained the medical information about the complainant and requested a retrial.
In May 2013 Supreme Court Justice Edna Arbel decided on a retrial. Arbel criticized the lower court judges, saying their refusal to show Abdelkader the patient’s medical file made it impossible for him to defend himself properly.
When the prosecutor met the complainant to collect her testimony for the retrial, she said Abdelkader had done nothing to her and only wanted to play with her. The complainant reportedly had difficulty speaking clearly and communicating. As a result, the prosecution requested that the indictment be withdrawn, instead of an acquittal.
In the end, the district court ordered a “tacit acquittal.” As it put it, “the facts had not been ascertained and it was not determined whether the defendant committed the acts attributed to him.”
Arbel ruled that Abdelkader most likely suffered a miscarriage of justice. She noted the length of the process and that the appellant had been branded a sex offender and was fired from his job. He also served his sentence and spent years under house arrest. His family had also suffered greatly.
The district court ordered that Abdelkader be paid 116,000 shekels due to the failures in his defense. Abdelkader appealed that ruling. The prosecution denied that it had erred, claiming that it had not tried to conceal the medical information, which it had received only in 2010. The prosecution also said the acquittal was technical and did not prove the damage Abdelkader claimed to have suffered.
Justice Baron, who ruled on the last appeal, said the defendant suffered a considerable delay of justice and the prosecution’s decision to withdraw the indictment prevented Abdelkader from clearing his name.
Baron said there was no disputing that the acquittal was made possible by submitting the complainant’s medical information to the defense. She blasted the prosecution for contributing to the delay of justice and to lengthening the legal process.
Baron set the compensation at 600,000 shekels, but due to the defense attorney’s part in the fiasco ruled that the state would pay only half due to the anguish caused the defendant. This sum will be added to the 116,000-shekel compensation the district court set for the period the defendant spent in prison and under house arrest.