Focus / Court Leaves Same Questions Unanswered

The five men accused of the murder of Danny Katz were first convicted 17 years ago at a time of Kahanist hysteria in and around the Haifa District Court.

The five men accused of the murder of Danny Katz were first convicted 17 years ago at a time of Kahanist hysteria in and around the Haifa District Court. When Supreme Court President Justice Aharon Barak decided in 1999 to grant them a retrial, the Oslo illusion had still not faded entirely. The renewed conviction against the background of the current terror attacks proves once again that the murder case is not only a detective mystery and not only a legal imbroglio, but also a clearly political case. As of yesterday, that has become part of the legal truth in the case.

Already during their first trial, the prosecution claimed the five had decided to "murder a Jewish boy," but until yesterday the legal system avoided dealing with the motive. The working assumption was that because they were Arabs, their desire to murder a Jewish boy was self-evident. That is one of the innovations in the verdict of the three Tel Aviv District Court judges: Based on statements made in the confessions, the judges ruled that one of the two motives that led to the murder was their hatred for Jews. (The second motive, said the judges, was the defendants' fear of each other). The judges based their verdict on a statement made by one of the defendants, who said one of the other defendants had said that "all Jews are maniacs."

The judges accepted these statements and others as motives for the murder of the boy, despite Shin Bet testimony that said none of the defendants had ever belonged to a terrorist group, local or nationalist. Other than statements allegedly made by the defendants during their interrogations, there is no hint or evidence of any political involvement by them. The prosecution did not bring a single witness to prove their "hatred for Jews," which the judges attributed to them.

The five men are three residents of Sakhnin and two Bedouin, all of whom worked at a supermarket. Some did not know how to read and write when they were arrested, and none was ever involved in political activity.

The emphasis on the nationalist motive is particularly strange, considering that the judges wrote that the murder was "for the purpose of abusing a victim, any victim they happened to catch." Maybe they meant to write "any Jewish victim." But they continued, saying that "anyone capable of such a senseless murder, of such a random victim, could commit such abuse." A random victim could also be not Jewish - and the questions remain.

One of the biggest questions that arose in the case was the prosecution's claim the boy had been sodomized after his murder. In other words, the five defendants are necrophiliacs.

The verdict does not answer the question what nationalist goal was served by sexually assaulting the boy. Necrophilia is a rare sexual obsession and the assumption that five necrophiliacs, all Israeli Arabs, met at the same supermarket in Haifa simply does not hold water.

The judges solved that with an assumption: the pathological evidence does not rule out the possibility the boy was still alive when he was sexually assaulted, they decided. The judges made a supreme effort to convince the public that their decision was not dependent on the confessions the defendants gave to the police investigators, even though they rejected the defendants' claim that they were forced to sign false confessions.

The defendants argued from the first day on trial 17 years ago that their confessions were false, forced out of them by pressure and torture. In court they were required to prove they were tortured - but without an interrogator who would stand up and say "I tortured," it is practically impossible to prove the claim. Indeed, the judges did not believe the defendants. Those confessions play a central role in the judges' decision and it's most probable that if the confessions were ruled out, the rest of the evidence would not have been enough to convict.

The verdict yesterday therefore provides the basis for a very important - and necessary - discussion of whether it is possible a person would admit to doing something he did not do, and how large a role a confession should play in a judge's decision.

Yesterday's verdict exposed the legal truth as understood by the three judges. But it did not remove the question marks that brought the president of the Supreme Court to order a new trial.