State appealing murder charges acquitted due to exploitative undercover agents

The state is appealing an embarrassing defeat where the court threw out much of the charges in a presumed open-shut attempted murder case.

March 2, 2015 17:58
2 minute read.
Crime scene [illustrative]

Crime scene [illustrative]. (photo credit: INGIMAGE)

The state on Monday appealed to the Supreme Court over its defeat when a three-judge panel of the Jerusalem District Court on January 20 acquitted Solomon Radai of attempted murder and arson.

The state said the lower court decision was wrong on key issues.

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Whether the Supreme Court agrees with the state or the lower court could have wide-ranging implications for the use of undercover operatives.

A remaining charge accusing Beit Shemesh man Radai, an oleh from Ethiopia, of murdering his wife, Phukate Bogale, a foreign worker living in Jerusalem, 12 years ago has not, as of now, been thrown out, but following the Jerusalem court decision, many said that charge may be vulnerable, with the court blasting the police and its undercover operative for aggressively egging Radai on to commit some of the alleged crimes. Police found her body, stabbed and beaten, in a cave near the caravan site at Givat Hamatos in the capital on April 26, 2003.

The lower court had said, “the initiative and activism of the police in exploiting the fragile mental state of the accused after he was detained, exacerbates the tampering” with his actions “sufficiently to annul the accusations” regarding arson and attempted murder of a man designated by the police’s undercover operative.

It is common for police to use undercover operatives, sometimes planted in jail as “convicts” to gain the trust of persons they suspect of crimes.

The usual goal, as here, is to get the suspect to confess to the undercover person, once that person has won their trust.

A parallel tactic is where an undercover operative poses as an additional party in an illegal transaction to draw in the suspect to committing to an illegal transaction.

While these tactics are considered proper and even creative, the court said the operative in this case went too far.

The lower court said the operative planted the arson idea in Radai’s head, assisted him and paid him for perpetrating the act, to get back at someone who owed him a debt.

Next, it said that the operative returned to Radai with a request to car-bomb the same person who owed him a debt.

The lower court said the operative was so aggressive that it could not allow a trial of Radai, as it was very unclear that Radai would have undertaken the crimes without the operative planting them in his head.

Though the murder charge against his wife, which allegedly Radai admitted to on tape to the operative, was not, as of now, been thrown out, it may be as the operative’s credibility may be compromised.

The state’s appeal focuses on two main points where it says the lower court decision was wrong.

First, the state said that as a matter of legal precedent, the court should not have taken into account the defenses that it used to acquit Radai until the sentencing stage of the proceeding, only after convicting Radai.

Second, the state said that even if the court found that the undercover agent had gone beyond his mandate, that in this case any violation of the mandate was still insufficient to invoke the legal principle of a rogue or “inciting operative” in a way that would affect the court’s final decisions on the key legal issues.

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