The Central District Court in Lod ruled against a Negev Bedouin man seeking compensation from the State Prosecutor’s Office – even though the Supreme Court had previously ruled that the prosecution was responsible for the unjust conviction of the plaintiff for sex offenses.
The Supreme Court had found that prosecutors withheld information from the investigation of Salam Abdelkader for years, which in the end led to his acquittal in a retrial – but only after he had already completed his original sentence. Abdelkader, 63 and the father of five, was held under house arrest for five and a half years and imprisoned for another 185 days before he was exonerated.
In March, Judge Irit Cohen of the Central District Court ruled in Abdelkader’s lawsuit that the State Prosecutor’s Office was not required to compensate him. Nonetheless, she did rule in his favor against the lawyer who represented him in his trial, and against the psychiatrist who treated the woman who complained against him, ruling that they must pay him compensation.
In 2003, Abdelkader was indicted on three counts of molesting a female patient in a closed psychiatric institution where he worked as an instructor. During the trial in Be’er Sheva District Court, prosecutors and Judge Drora Beit-Or opposed a request by Abdelkader’s attorney, Yasser Abu Jama, to examine the complainant’s medical file. In 2008, Abdelkader was convicted on all charges against him, which he denied.
Two years later, after he filed an appeal, the Be’er Sheva District Court ruled that preventing access by the defense to the medical file violated Abdelkader’s rights to due process, and that he could have based a claim of reasonable doubt on this new information. Seven years after he was indicted, the court ordered prosecutors to provide Abdelkader and his lawyer with the information so they could have an expert examine it on his behalf.
The file included doctors’ opinions that the female 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 sex on other patients. In one incident she allegedly wrung a bird’s neck.
The information was submitted to the magistrate’s court, but Abdelkader’s lawyer never came to see it or photograph it, nor did he attend court hearings.
In 2012, the District Court convicted Abdelkader on appeal of one count of indecent acts, and acquitted him on the other two counts. He filed a request to be allowed to appeal the verdict to the Supreme Court, but this was denied. In spite of his conviction in the appeal, Abdelkader continued to fight for his exoneration and he hired attorney Meital Ron, who obtained the medical information about the complainant and requested a retrial because of the failures of her predecessor in the case, as well as the psychiatric opinions concerning the woman.
In May 2013, after Abdelkader completed his sentence, then Supreme Court Justice Edna Arbel granted him 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. A decade after his arrest, Abdelkader’s case was reopened.
In a meeting between the prosecutor and the complainant to go over her testimony for the retrial, the woman said she remembered Abdelkader as someone who worked with the nurses in the psychiatric institution, but he 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 refused the request and instead ordered a “tacit acquittal,” without hearing any evidence. As the court put it, “the facts had not been ascertained, and it was not determined whether the defendant committed the acts attributed to him.”
The prosecution opposed paying compensation to Abdelkader, even though the Supreme Court ruled that it had made mistakes in case. The fact that Abdelkader most likely suffered a miscarriage of justice for 11 years, he served his full sentence, was branded as a sex offender and fired from his job as a result – and the criminal proceedings caused his family serious suffering – did not change the prosecution’s position. Abdelkader appealed this too, and in 2015 the Supreme Court ruled the state must pay him initial compensation of 300,000 shekels ($86,000).
Supreme Court Justice Anat Baron, who ruled on the last appeal, 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. The defendant suffered a considerable delay of justice and the prosecution’s decision to withdraw the indictment prevented Abdelkader from clearing his name, said Baron.
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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, she ruled that the state would pay only half due to the anguish caused the defendant. This sum was be added to the 116,000-shekel compensation the district court set for the period the defendant spent in prison and under house arrest.
In January 2016, Abdelkader filed a lawsuit in the Central District Court asking for compensation from the state, because the Prosecutor’s Office was negligent in indicting him and in how it conducted the case against him. Abdelkader sued the attorney who represented him until his conviction and psychiatrist Dr. Uri Leventhal, a department head at the psychiatric hospital in Be’er Sheva which treated the woman and who testified about the woman’s condition during the criminal proceedings.