The prosecution views the defendant’s Jewishness in the Duma terrorism case as the main reason for controversy in what it otherwise views as a clear-cut case, The Jerusalem Post has learned.
This is one of many revelations the Post discovered leading into Tuesday’s decision by the Lod District Court relating to the confessions of the defendants in July 2015 terror arson murder of the Palestinian Dawabshe family.
The court will decide whether the Duma defendants’ confessions are admissible and were properly taken, or whether they must be tossed from the case due to the Shin Bet’s (Israel Security Agency) admitted enhanced interrogation of the defendants following their arrest.
The terrorist attack and the Shin Bet’s interrogations created convulsions in the region and within the Israeli political establishment.
Until now, there were two stages to the saga.
In the first stage, which took place in January 2016, the prosecution filed an indictment against Amiram Ben-Uliel for murdering the Dawabshe family, and against a minor – whose name is under gag order – for conspiracy in planning the murder and other “price tag” crimes, though all agree that the minor ultimately did not take part in the arson.
In the second stage since then, the right-wing legal advocacy group Honenu and the defendants have implied the state was using a gag order on the case’s proceedings to conceal that it tortured the defendants to obtain false confessions.
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Recently, parents of the defendants also leaked the state had suddenly agreed to toss out confessions of the defendants from the time period in which the Shin Bet used enhanced interrogation on them.
has learned most of the prosecution’s counter-narrative was, until now, kept under wraps due to the gag order.
Essentially, the prosecution believes the case would be a clear-cut conviction with little public controversy if the defendants were Palestinian and all of the uproar is about their being Jewish and their supporters believing that Jews should get treated better than Palestinians.
Regarding the minor, the prosecution would say much of his confession was given to an undercover agent posing as a fellow prisoner prior to the enhanced interrogation.
Also, it would say the minor had multiple stages of interrogation with the Shin Bet – first remaining mostly silent, then volunteering details, then returning to remaining silent – all of which were also before the enhanced interrogation stage.
Regarding Ben-Uliel, it was revealed that he not only refused to cooperate, but that at first he did not utter a single word for 17 days.
Meanwhile, Honenu said that the Shin Bet abused Israeli law’s permission to use enhanced interrogation to help avoid a future ticking bomb style attack, and instead used it to try to get a confession for Duma – a prior alleged crime.
The prosecution’s view is that enhanced interrogation was used on the defendants when the Shin Bet believed they were part of an active cell, which might carry out more attacks in addition to Duma, and not merely to obtain confessions about the past.
This would be exactly the type of impending attack, which the High Court of Justice recently said, justifies enhanced interrogation in the Palestinian Abu Ghosh case.
In any case, the prosecution’s view is throughout the case it stated it would only use the confessions from before and after the enhanced interrogation and not from the statements given in the midst of it.
Regarding the statements after the enhanced interrogation stage, the Post
learned that over four days, Ben-Uliel reconstructed the crime at the scene and provided numerous tiny details relating to the crime it did not know about, only the perpetrator could have known and which it later confirmed.
Furthermore, there is a video of the post-enhanced interrogation confession stage which has been provided to the court, and that Ben-Uliel can be seen acting calmly and self-volunteering information without even being asked.
While the defense views the post-enhanced interrogation stage as already tainted by the psychological impact of what it calls torture, the prosecution’s view is that these stages were separate and the post-enhanced interrogation confessions can be used.
Moreover, the narratives given by the minor and Ben-Uliel are consistent, such that prosecution believes it would be an incredible coincidence if they both described the same crime which in fact occurred, but had nothing to do with it.
One exceptional detail is that although the prosecution believes Ben-Uliel was the sole perpetrator of the terrorist attack, it acknowledged that there is evidence a second attacker was involved.
Overall, the prosecution found that the evidence of a second attacker, including from witnesses and from questions asked by the Shin Bet during the interrogation, was less credible than the majority of the evidence.
In addition, the defense to date 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 the defense could still attack their credibility at a later stage, though this would be an uphill battle if the prosecution wins on Tuesday.
The prosecution does not discount the possibility the court may toss the minor’s confession, but keep Ben-Uliel’s confession, and while confident in its case, it does not think the court at all tipped its hand on how it will rule.
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