A Humane Impulse Meets the System in Ofer Military Court

Soon after convicting the defendant, the judge revoked his decision. Suddenly he saw the person, not the confession of guilt.

Military judge Amir Dahan issued a verdict of guilty against the defendant but 10 minutes later revoked the conviction and announced he was rejecting the confession as evidence. Even the veterans of Machsom (Checkpoint ) Watch, who regularly observe the Ofer military court proceedings, cannot remember a similar case.

Dahan is supposed to render his final verdict on Thursday. In the meantime, Malek, 21, from Beit Omer north of Hebron, is beginning his ninth month in detention.

What made the military judge change his mind and cancel the plea bargain between the defense and the prosecution? According to Machsom Watch volunteers, the Kafkaeqsue nature of trying Malek had emerged long before. Nevertheless, Malek's attorney, Khaled al-A'araj, is afraid the judge's decision to revoke the verdict, as sensational as it is, is liable to extend his client's stay in jail.

Malek was arrested on February 29. On March 11, an indictment for two crimes was issued against him. The first of the crimes was formulated vaguely, as is common in the military court's indictments: "In 2010 or thereabouts [i.e., sometime during, before or after 2010] the suspect threw stones ... at military jeeps and civilian buses on three separate occasions."

The second paragraph of the indictment aimed for greater specificity: "The above-named defendant, in the area on or about December 26, 2011, threw an object, including a stone" from a vehicle at a police patrol car traveling in the opposite direction, "with the defendant driving a Subaru. ... The stones thrown by the defendant and Yousef [the other defendant] hit the patrol car and, after falling to the ground underneath the moving patrol car, continued to interfere with the car's movement and hit it."

The defendant was driving the car? The defense attorney says this is a technical error because a third defendant in the case has already admitted to having been the driver. According to Machsom Watch volunteers, this is a classic example of the typical sloppiness and inattention with which the military prosecution prepares indictments. "He was driving the car? It's about as absurd as saying that he operates a particle accelerator," the Machsom Watch report states.

Spring came and the indictment was read on April 4. According to court records, Haya Ofek, a Machsom Watch volunteer, intervened and told the judge: "I know the family and have known the defendant from a young age. He has problems; he doesn't understand what's going on. He apparently suffers from some type of mental impairment."

The defendant's uncle added: "Malek's medical conditions is such that it is hard to understand what he's saying, and he has a hard time hearing when he's spoken to. It's also hard to understand what he means. He doesn't understand what he's told. He went to school for just two years. His father is like that too. This problem has existed since he was little. To the best of my understanding, it is also a type of emotional problem." None of this prevented the police investigators from extracting a confession and from Capt. Mazi Makonen, the military prosecutor, to rely on the confession when she wrote up the indictment.

As a result of Ofek and the uncle's intervention, judge Maj. Etti Arad ordered that the district psychiatrist be consulted. Afterward, Malek was scheduled to undergo three separate medical examinations. At the end of the process, says attorney A'araj, it was established that Malek is in fact mentally impaired but fit to stand trial. "Therefore, legally speaking, I couldn't ask for a cancellation of the proceedings, and things were made worse by the fact that another defendant had implicated him," said A'araj.

More time passed. Malek was fit to stand trial, therefore he was also fit to stay in jail. Only rarely does the military court release a Palestinian defendant before the end of proceedings. Should the defense attorney insist on questioning the prosecution witnesses, as is done in any fair trial, the defendant, when charged with stone-throwing or participation in a demonstration, will find himself locked up for a longer period than the one arrived at through a plea bargain.

Summer came and the month of Ramadan started and then ended. A'araj reached a plea bargain with the military prosecution. The vague first indictment was erased. The specific one remained. On October 24 the two sides informed the judge of their agreement. The judge found the defendant guilty on the basis of his confession. Yet, apparently, something was bothering Maj. Dahan. After the conviction, he asked Malek to tell him what happened ten months before.

The Machsom Watch report reconstructs the conversation: "Malek said: 'They [the other two defendants] told me, 'Get in.' So I got into their car. I sat in the back.' The judge asked: 'You saw them stop to pick up stones from the road?' Malek: 'They got into the car with stones. While traveling they threw stones. I was sitting in the back.' The judge asked: 'Did you hear them talking about throwing the stones?' (We, knowing that Malek is mentally impaired and hard of hearing, realize that if he's sitting in the back he can't hear very well what they're saying in the front seat, certainly not while the car is moving, never mind understand what they're talking about. ) And Malek answered: 'I didn't hear and I didn't know they were planning on throwing the stones.' The judge asked: 'Did you stick your hand out of the car and throw stones?' And Malek said: 'No.' He seemed to be getting more and more agitated. And then the judge called him, the interpreter and the attorney to the front.

"The three were huddled around the desk and then, in the banal context of the military court where the outcome is known ahead of time and no one bothers to look at the human being in the dock, we watched judge Dahan strive to get to the truth of the matter. He said: 'A moment ago, when I asked you, you admitted the facts of the amended indictment and said you threw stones. Now you're saying you didn't throw stones. Explain.' Malek's agitation grew more intense, but the judge didn't let up and explained himself again, and again asked which of the two versions was the truth. At that moment, Malek ... his brow furrowed with effort and his eyes darting wildly about - said that the truth was that he didn't understand, and doesn't understand. His parents in the courtroom tried to intervene and explain that he doesn't hear well, that he needs to have everything repeated to him over and over again, but this only increased Malek's confusion and distress." Then the judge decided to revoke the ruling he had given 10 minutes earlier. The mother pleaded that the son be moved from the Megiddo jail to the jail in Ofer, closer to the family's home.