Court Disqualifies Palestinian's Confession After Police Prevented Him From Consulting Lawyer

Judge calls violation 'a mortal blow to the defendant’s basic right to due process'

FILE Photo: A suspect under arrest.
Olivier Fitoussi

A court disqualified a confession last week because the defendant wasn’t allowed to meet with his lawyer before making it.

A., a resident of the West Bank town of Qalqilyah, confessed to stealing cars and breaking into houses. But Rishon Letzion Magistrate’s Court Judge Amit Michles said that by not letting him meet with his lawyer first, police violated his basic rights.

“This is not a technical or negligible violation of the law and court rulings, but an ongoing violation that deals a mortal blow to the defendant’s basic right to due process,” he wrote.

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Police insisted that they have enough evidence to convict A. even without his confession. They also promised that the unit responsible for the case – a branch of the elite Lahav 433 unit – will be reminded of the proper procedures.

But Michles’ criticism was directed not only at the investigative unit, but also at the police prosecution, which argued during the trial that the investigative unit hadn’t acted improperly.

A. was arrested in December along with two other suspects on suspicion of breaking into homes on Moshav Beit Hashmonai, near Ramle. He was indicted about a week later.

On the night he was arrested, he was questioned and confessed to the crime. He also implicated the other two men. But since the court rejected his confession in its entirety last Thursday, the evidence he gave against the others in that confession is also invalid.

The statements he made during a second interrogation, which took place after he met with his lawyer, are still admissible as evidence. But during that interrogation, he denied committing any crime and otherwise largely refused to speak to his interrogators. When asked questions, he merely pointed at parts of his previous statement and said he had nothing to add.

A. is charged with entering Israel illegally, conspiracy to commit a crime, breaking into homes, stealing a car and interfering with a policeman in the line of duty. The latter incident happened when he and his friends were stopped by a police roadblock after fleeing the crime scene.

During the trial, Michles discovered that in his first interrogation, A. was asked eight times whether he wanted to consult a lawyer and said yes each time. Nevertheless, the interrogator continued questioning him rather than waiting for the lawyer, despite knowing that the lawyer was en route to the police station.

Police argued during the trial that the first interrogation was merely a “pre-investigation.” But no such concept exists once a suspect has been arrested.

Moreover, police appeared to actively discourage A. from consulting a lawyer during the first interrogation. At one point, when A. said he wanted to see a lawyer, the interrogator suggested, “Do you want to tell me what happened first and then talk to him?” Later, the interrogator said, “You know that anyone who wants to see a lawyer isn’t innocent,” adding that if he remained silent until his lawyer arrived, “it would look strange.”

Police argued that A. was informed of his right to consult a lawyer and his right to remain silent until he did, but chose to waive his rights. Michles, however, wasn’t convinced, saying the interrogator’s repeated urgings that A. talk without waiting for his lawyer simply wore him down, and his confession was thereby “extracted from him before the lawyer intervened.”

“The numerous times in which he asked for a lawyer merely underscore the severity of the lapse and lead to the conclusion that this violation of the law was deliberate,” Michles wrote.

What he found “especially worrying,” he added, is that “based on the investigators’ statements, one could gather that this is a standard pattern of behavior, in which the defense attorney is told that the interrogation began before legal advice was given and would continue until the defense attorney arrived at the interrogation room.”

Michles said he hoped his decision would spur the police to “learn lessons” and review the relevant laws and court rulings.

A.’s lawyer, Moanes Younes of the Public Defender’s Office, charged that the interrogator had even threatened A. by saying he wouldn’t see his sick mother for a long time. Police argued that this was a legitimate pressure tactic, but Younes disagreed.

During the second interrogation, when Younes was present, the lawyer said that at one point, the interrogator lost patience, handcuffed A.’s hands behind his back and sat him forcibly on a chair, causing A. to begin crying with pain.

Police said in a statement that detectives had caught A. red-handed, “during the commission of the crime.” He then tried to flee, and was caught after a chase.

“His two partners in crime have already confessed and been convicted,” the statement added.

A.’s case is still in process, but it is based on “solid evidence,” including “another confession given after he consulted his lawyer,” the statement continued. “Therefore, both the investigative unit and the police prosecution think there’s enough evidence that he committed the crime to continue the criminal proceedings against him, even after the court’s decision.”

Finally, it said, the heads of the unit reviewed the relevant laws and regulations with its staffers “several months ago, upon learning of this incident.” Nevertheless, the judge’s criticisms “will be studied and the necessary lessons learned.”