The Lod District Court on Tuesday accepted the validity of key confessions made by the main defendant in the Duma alleged Jewish-terrorism case – giving the prosecution a strong case to convict – while disqualifying key confessions given by the under-aged defendant.
The mixed blockbuster decision, which will have far reaching consequences, did disqualify some confessions of the main defendant during and 36 hours after enhanced interrogation was used on him.
The Justice Ministry and the Shin Bet emerged with a strong lead toward winning their flagship case fighting Jewish terror against the main defendant, Amiram Ben-Uliel.
However, as the court declined to rule on whether the Shin Bet tortured or used legal enhanced interrogation, future rough treatment of alleged Jewish extremists is still up in the air. Regarding the minor defendant, the decision means that while he will likely face convictions for lesser price-tag attacks, he has a strong chance of acquittal in the Duma case.
The July 2015 arson terror attack, which killed Palestinian parents Sa’ad and Riham Dawabshe and their 18-monthold son Ali in the village of Duma – and the Shin Bet’s admission of using enhanced interrogation techniques with the two Jewish defendants – created convulsions in the region and within the Israeli political establishment.
The tensions were manifest on Tuesday with Joint List party leader Ayman Odeh and other Arab activists, as well as a large number of Jewish right-wing activists attending the hearing.
Until now, there were two main stages to the saga.
In the first stage of January 2016, the prosecution filed an indictment against two people: Ben-Uliel for murdering the Dawabshes, and a minor, whose name is under gag order, for conspiracy in planning the murder and other “price tag”- type crimes – though all had agreed that he ultimately did not take part in the arson.
In the second stage since then, the right-wing legal advocacy group Honenu joined the defendants to imply that the state was using a gag order on the case’s proceedings to conceal that it tortured the defendants to obtain false confessions.
The court’s decision on Tuesday dissected different pieces of evidence in the case against both Ben-Uliel and the minor with surgical precision.
Regarding Ben-Uliel, the most incriminating evidence he gave, including a reconstruction at the scene of the crime, will be admitted against him in court as it was given more than 36 hours after the Shin Bet used enhanced interrogation on him.
The court commented that it could see from a video of his confessions at this stage that he was calm, volunteering facts which investigators did not know about and freely cooperating.
In contrast, the court disqualified his confessions both during and for 36 hours after the enhanced interrogation, saying that it was not convinced that he was cooperating freely at those times.
Judges Ruth Lorech, Zvi Dotan and Devora Atar went out of their way to say that this did not mean that they were characterizing the enhanced interrogation as having crossed a line into torture.
In fact, they said that it appeared that the Shin Bet had not merely used enhanced interrogation to discover if the defendants had been involved in the Duma terror attack, but had mainly used it to learn about potential new attacks which it believed the defendants’ organization was planning.
Rather, on the crossing-theline question, the judges said that they did not need to decide on that issue, since they could disqualify confessions at that stage merely as not having been given freely even if the enhanced interrogation was legal.
However, those confessions of Ben-Uliel which were disqualified were not the key ones, which is why he is now likely to be convicted.
In contrast, the court said that the Shin Bet had not provided it with a video of the minor’s confessions.
Therefore, the court accepted what the minor had said in real time in early court proceedings – that he was just telling the Shin Bet what they wanted to hear in order to escape more enhanced interrogation. So all of the minor’s key confessions during and after enhanced interrogation were therefore disqualified.
This is why the minor has a strong chance of acquittal in the Duma case, for which he was only indicted for conspiracy to commit murder and not committing actual murder, like Ben-Uliel’s indictment.
Despite that win, the prosecution told The Jerusalem Post that before the enhanced interrogation, the minor had given a hypothetical statement about his actions which matched up exactly to what he and Ben- Uliel later confessed to.
In addition, the prosecution told the Post that some of Ben-Uliel’s statements which were now accepted as evidence included his implicating the minor.
Overall, the judges appeared to have far more sympathy for the minor due to his age and fragility. This could help him gain an acquittal, although it is not a guarantee.
Regarding the minor’s involvement in other legal price-tag attacks, his confessions prior to the enhanced interrogation – to an undercover agent posing as a prisoner – were all validated, which means he will likely be convicted.
Essentially, the prosecution believes that the case would be a clear-cut conviction with little public controversy if the defendants were Palestinian; all of the uproar is about their being Jewish and their supporters believing Jews committing the crimes they perpetrated should get treated better than Palestinians.
Ultimately, the court found that the prosecution’s narrative regarding the confessions was more credible regarding Ben- Uliel, but less credible regarding the minor.
The defense still has an outside shot to acquit Ben-Uliel, because until now, it has only attacked the confessions’ admissibility – whether they can be used as evidence at all – but not their credibility – whether they are strong or weak evidence.
This means that the defense could still attack their credibility at a later stage. Ben-Uliel’s lawyer Yitzhak Baum said they will eventually appeal the admissibility of the confessions to the Supreme Court – which appears now to be an uphill battle.
The prosecution declared an overall victory, saying the court had accepted the vast majority of its arguments on key issues.
The minor’s father and his defense lawyers, Zion Amir and Adi Keidar, also declared victory, saying that they hoped he would be freed on bail soon.
According to the indictment, in June 2015, the two defendants discussed ways they could take revenge on Palestinians following the murder of Malachi Rosenfeld. The two planned one attack on Duma and another on the Majdal village nearby, hoping to murder the residents of houses in those locations. Ben-Uliel prepared a backpack with two Molotov cocktails filled with gasoline, a lighter, matches, gloves and spray paint.
On July 30, Ben-Uliel left his house wearing heavy clothing carrying the backpack to meet with the minor at Yishuv Hada’at.
When the minor inexplicably did not show and Ben-Uliel had waited for a while, he decided to perpetrate the terror attack on his own.
Ben-Uliel reached Duma, tied part of a shirt around his face to function as a mask obscuring his identity, and donned the gloves.
He specifically checked for a house which showed signs of people being inside to ensure that he would be able to kill people as opposed to merely burning an abandoned house.
Upon choosing the house of Mamoun Dawabshe, he spray-painted “revenge” and “long live the Messiah” on the walls of the house and then threw a Molotov cocktail through the window with intent to kill those present.
Despite his efforts, nobody was hurt since the house was empty at the time.
Next, he moved on to the house of Sa’ad, Riham and Ali Dawabshe. At first, he failed to open two different windows to attack the house with his second Molotov cocktail.
Eventually, he succeeded in finding a third window leading to the bedroom where the Dawabshes were sleeping and threw the Molotov cocktail inside, igniting and engulfing the entire house in flames, eventually killing three of the four family members. Ali’s fouryear- old brother Ahmed survived, with serious burns over most of his body.