In a dramatic opening to Thursday's IDF court hearing over whether to release or keep in custody the soldier who shot a Palestinian in Hebron last week, IDF Prosecutor Lt. Col. Edoram Rigler said that they were reducing the expected charge from murder to manslaughter.
At the same time, Rigler told IDF Lt. Col. Judge Ronen Shor at the hearing in Kastina near Ashdod that they felt highly confident they would get a conviction for manslaughter, which carries heavy jail time.
A media circus has surrounded the incident with details leaked from both sides of the investigation day-after -day to confirm two polar opposed narratives. In one narrative, the killing was a cold-blooded murder. In another, it was possibly only a less serious negligent homicide with elements of self-defense from danger posed by the Palestinian who had been involved in a terror attack before being shot and immobilized by security forces.
The Palestinian and an accomplice had attacked another soldier with knives, and then was wounded. He is seen on a video, which immediately went viral, lying on the ground motionless for an extended period until the accused soldier, who arrived after the attack, suddenly, and seemingly without cause, shoots the Palestinian dead, causing blood to pour out of his head.
Backing up the manslaughter charge, Rigler officially confirmed leaked accounts that the shooter when asked immediately after by his commander about why he shot the Palestinian, had responded "the terrorist needed to die."
The prosecutor added that the soldier had told another fellow soldier on the spot that he had killed the Palestinian because “he stabbed my friend and tried to kill him, he deserved to die.”
He said that this was hard proof of the illegal motivations of the soldier for killing the Palestinian that pile up alongside the video of the shooting and other evidence in trumping the soldier's claim of self-defense.
Further, he said that the soldier’s top commander, a Lieutenant Colonel, had believed the soldier was lying when suddenly, two hours after the event, he told him that he shot the Palestinian because he thought he had a knife. Later, still, the prosecutor said, the soldier changed his narrative again from self-defense from a knife to self-defense from an explosive.
However, according to this narrative, the soldier’s narrative continued to evolve farther and farther from the truth the more time passed from the event and the more he realized how much trouble he was in. This was in contrast from his initial spontaneous reactions which the prosecutor said were truthful, unfiltered and did not mention self-defense, but revenge.
In another twist, the prosecution told the court though it is requesting only a seven day extension of detention at this time, that it intends to ask the court to keep the soldier in custody until the end of his trial once it files an indictment.
Rigler on Tuesday had told Shor that there was no military need for the soldier to kill the Palestinian.
In that hearing, Shor partially rejected the prosecution’s request for nine additional days of pre-indictment detention to continue its investigation, granting an extension of the detention only until Thursday.
The picture initially appeared grim for the soldier on Tuesday as the prosecution deemed the shooting a "grave offense," terminology usually reserved for murder or manslaughter and not mere negligent homicide - a mistaken killing violating the rules of engagement, but without murderous intent.
The prosecutor said Tuesday that investigative actions carried out until now raise doubts about the suspect's account of events, and his claim that soldiers' lives were in danger is in doubt. Doubts exist due to the soldier's conduct during the incident. He said that his statements and motives all cast doubt on his claim to acting in self-defense.
Further, the prosecutor stated that the soldier was not an early responder and that by the time he arrived to the scene, the Palestinian had already been checked for the possibility of having explosives attached to himself, and that this had been ruled out.
Widely confirmed reports indicate that the shooter told other IDF personnel before and after that the Palestinian should be killed in light of his being a terrorist and other issues not related to self-defense.
The prosecutor noted that even the shooter himself did not act with any immediacy or desperation when he shot the Palestinian that indicated he felt in danger.
Still, the soldier’s two defense lawyers did strike back hard at the hearing cross-examining a major in the military police about the investigation and about why their client must remain in custody.
The defense lawyers got the military policeman to admit that there were still uncertainties surrounding whether the Palestinian was fatally wounded before the soldier under investigation shot him.
An autopsy is expected to be performed Sunday following the High Court of Justice’s Thursday compromise ruling on a debate between the IDF and the Palestinian's family. They had debated who will perform it. The IDF agreed to have a medical representative of the family present as an observer, but the Palestinians had demanded their representative take an active part in the autopsy. The High Court ruled that a Palestinian representative will be present, can request that the IDF autopsy performer take additional actions and will have an official record taken in case the two medical officials disagree.
Defense lawyer Ilan Katz has argued that the autopsy of the terrorist could save the soldier from both murder and manslaughter charges if it shows that he was already fatally wounded and would have died from his earlier wounds.
In that case, he might only face charges for negligent homicide or for violating the rules of engagement.
Conversely, if the autopsy shows that the Palestinian was not already fatally wounded, Katz will argue that he was not as badly hurt as the video seems to imply, and that the additional shooting was necessary to neutralize him as a threat.
Katz jumped on the military police on Tuesday questioning how they could negate the soldier’s self-defense argument if they admitted that the Palestinian still showed clear signs of being alive.
The prosecution is expected to oppose these arguments, arguing that the Palestinian was alive when shot and that the soldier had murderous intent regardless of the extent of his prior wounds.
Yet another support reported for the self-defense idea is a Magen David Adom report that there were suspicions of an explosive vest being used in the area. But it is unclear if this report will only help MDA explain why it did not attend to the Palestinian, or will also help the shooter.
At the Tuesday hearing, the prosecution said it could not reveal all of the details yet, but that the shooter had been checked and it was clear he did not have an explosive vest.
Another issue which remained unclear, even when Judge Shor asked for clarification, was whether the prosecution is leaning toward a murder or manslaughter charge.
Manslaughter requires only general intent to kill or a high level of recklessness leading to killing, while murder requires a specific intent to kill.
Prior to hearing the court’s decision about the detention, Katz told the press that it was unfair for the IDF to have arrested the soldier and kept him in detention, when in similar past instances other soldiers and police were brought to trial without ever being detained.
After hearing all of the arguments, Judge Shor said that while there “exists a reasonable suspicion” that the soldier committed a crime, the circumstances and level of the crime were extremely ambiguous at this stage.
Shor also wrote that even if the ultimate charges were the gravest, that at this stage all that mattered was that most of the remaining investigative actions, including most of the secret investigative actions, could be performed even if the soldier gets released from custody.
Since only two of several secret investigative actions required the soldier to be in custody, Shor wrote that detention until Thursday should be adequate.
Katz declared Shor’s language that the evidence “is not unambiguous” and his partial rejection of the prosecution’s request for even longer detention, as a sign that it would need to downgrade the charge to something less serious than murder and possibly even less than manslaughter.
He also praised Shor for a moderate ruling which he said ignored a public inquisition against the soldier.
Despite Katz’s analysis, Shor was very careful to write that his view of the evidence was only from the perspective of the detention stage (how long pre-indictment the suspect should be detained), and did not impact how a later trial judge should view the evidence for purposes of the ultimate verdict.
Shor also did not say that this was the last extension, meaning he could extend the pre-indictment detention further at Thursday’s 3:00 p.m. hearing.
The judge is a former IDF prosecutor who is highly familiar with the needs of investigators.Yaakov Lappin contributed to this report.