Recently stepped down IDF Judea and Samaria chief prosecutor Lt.-Col. (res.) Maurice Hirsch and defense lawyer Badr Agrabia both talked to The Jerusalem Post on Thursday, to explain how one of the convicted Ramallah lynchers of two soldiers during the second intifada was freed on Wednesday night after 16 years, but they live in two different realities.
Hirsch said that the released Palestinian, Hatam Magari, should still be in jail as even with new evidence that arose in his defense, the IDF prosecution should have engaged in a full retrial to re-convict him of murder, rather than cut a plea bargain for a lesser crime and release him in light of time served.
Agrabia said that the new evidence that helped reduce his conviction from murder to mere beating did not exist during the original 2004 trial, was withheld from the defense during Magari’s original appeal, and that he sat in prison unjustifiably for many years.
The background is that in October 2000, IDF reservists Sgt.-Maj. Yosef Avrahami, 38, from Petah Tikva, and Cpl.
Vadim Nurzhits, 35, from Or Akiva, accidentally entered Ramallah.
Palestinian Authority policemen took them to the local station, where they were brutally murdered, their bodies mutilated and one of their bodies was thrown out the window into a crowd where it was stomped on.
The photos of Aziz Salha throwing his arms and hands up, seen through a window with blood dripping from his hands, went viral worldwide.
Wednesday night marked an extremely rare instance in which one of the highest profile murder cases in the state’s history suddenly led effectively to the acquittal of a convict, Magari, who served 16 years in prison for a crime it now appears he did not commit.
The other convicted murderers in the case will continue to serve their life sentences.
But why was Magari released? It is undisputed that Magari’s conviction was based primarily on one of his fellow Palestinian policemen, Hussein Aluch, incriminating him as well as seven other Palestinian policemen, though there was some corroborating evidence.
Also, it is undisputed that new evidence arose after the first trial that two of the policemen incriminated by Aluch, Sharhabib Sefi and Muhammad Darwish, were interrogated by the Shin Bet (Israel Security Agency), but were then released without being indicted when they denied involvement in the murder.
Several others had confessed their involvement in the murder.
The rest is disputed.
The opening question would be: Why were Sefi and Darwish released and Magari was not released when they were both incriminated by Aluch? Hirsch has said that he handled Magari’s various appeals and High Court of Justice petitions for over 18 months before stepping down on January 31, 2016.
He had viewed all of the new evidence and not only believed the Judea and Samaria Court that ordered a retrial was wrong to do so, but also that even given that decision, the IDF prosecution should have taken on the challenge and gone for a new conviction.
The Post has learned that the argument for going to trial again would include that it has been proven even in the latest plea bargain that Magari’s original story, that he did not touch either of the two soldiers, was a lie.
Magari has admitted to beating the soldiers.
Further, after Magari’s conviction, additional evidence against him arose that was not used in the original trial. This evidence proved that Magari had led the soldiers into the police station where he continued to beat them, the Post has learned.
This argument would say that Aluch’s statements incriminating most of the defendants stuck and that the additional above evidence against him did not exist for the two PA policemen who were released.
In contrast, Agrabia explained that Sefi and Darwish had not been released yet when Magari was convicted.
Once they were released, the evidence of their release was not provided to Magari’s old defense team.
But when lead murderer Salha was released in the Gilad Schalit 2011 prisoner exchange, Magari’s family decided to try again, and approached Agrabia to take a new shot at the case. It took Agrabia until 2014 before he got the High Court to compel the IDF prosecution to give over the new evidence.
Once Agrabia saw that Israeli law enforcement rejected Aluch’s incrimination of Sefi and Darwish who denied involvement in the murder, he said the court must delve into why Magari’s denial was not accepted.
Agrabia continued that evidence showed Magari had beaten the soldiers and entered the police station, but that he had dropped them off with his commander on the ground floor, then went to stop rioters from entering the station.
This would be key as the murders took place on the floor above the ground floor.
It is unclear what the current IDF prosecution fully thought of the evidence, but clearly they believed that having to regather all of the witnesses from 12-16 years ago for a new trial would be a major headache, and they might have been concerned about drawing out possible embarrassment.
The murdered soldiers’ families said they were caught by surprise by the release and confused about the circumstances.
With such a complex and chaotic case, there may be no way to fully lift the veil of confusion to fully understand what Magari did that day in October 2000.