There is no way to answer the question objectively on whether Palestinian Mahmoud Katusa was treated the same as an Israeli Arab from Haifa, let alone an Israeli Jew, who was accused of rape.
At the same time, there is no way anyone with a conscience can avoid asking the question of whether identity politics, intentionally or subconsciously, played a role in the mystifying saga.
The indictment against Katusa was not merely closed, it was withdrawn entirely as if it never existed.
This is only one week after the Palestinian was accused of one of the worst crimes on the books: the rape of a seven-year-old child.
IDF Military Advocate-General Sharon Afek is known as a man of the system, but he is also known for his readiness to buck politicians to stand up for his view of the rule of law, as he did in the Hebron shooter trial.
Afek is also expected by many to show sensitivity to different sectors of society as the first openly gay military advocate-general.
A clear difference between how Israeli Arabs and Palestinians (let alone Israeli Jews) are treated in general – which might pertain to the Katusa saga – is that they are judged in different court systems, and those systems have massively different approaches to keeping suspects in custody pending trial.
Israeli Arabs are tried in Israeli civilian courts, while Palestinians are tried in the Israeli military West Bank Courts.
There are arguments that Israeli Arab suspects are held in police custody pending trial more often than Israeli Jews, but the fact that Palestinians are held in police custody more often is actually set down in law.
Most crimes, besides theft and some light border violation offenses, lead IDF West Bank Courts to order Palestinians to remain in police custody pending trial.
The courts explain this anomaly by accepting the IDF’s argument that it is far more difficult – and sometimes impossible – to arrest Palestinians in the West Bank, compared with the ease of arresting defendants on the other side the Green Line.
The idea is that once released, Palestinian defendants are both a bigger flight risk than Israelis, and their arrests can incur a full-scale battle with the people of their hometown who may try to block the IDF arrest. An Israeli community rarely gets involved if police arrest one of their neighbors.
Why might this have mattered in the Katusa case?
The military advocate-general was surprisingly frank on Tuesday saying that when he ordered an indictment to be filed against Katusa, he and his staff knew that the case was murkier than usual.
Maybe in Israeli civilian courts, where releasing a suspect to house arrest or on bail is more common than with Palestinians, the probe would have continued, with Katusa being released with conditions.
He had been held for around eight weeks, and there are limits on how long even a Palestinian can be held without an indictment being filed.
Maybe the military advocate-general decided he needed to file an indictment to avoid Katusa being released and becoming a flight risk.
But there is also a whole different narrative.
THE JERUSALEM POST has learned what some of the undisclosed evidence against Katusa was besides the child’s testimony.
For example, the child was able to guide investigators to Katusa’s apartment, where she said the rape took place, which there would have been no reason for her to know about as a Jewish child.
Katusa himself even tried to conceal the existence of this apartment, and failed a polygraph test about the truthfulness of some of his answers during the interrogation.
There were also witnesses who testified to spontaneous and unfalsifiable visceral reactions of terror from the child when she saw Katusa at her school.
Why has this evidence been turned on its head enough to withdraw the indictment?
It turns out that the Katusa apartment, while not right next to the child’s house, was potentially close enough that she might have learned about it without being raped there.
Also, the uncanny descriptions of the apartment by the child were close to Katusa’s, but given further probing, there were also differences in the descriptions.
Katusa may very well have lied to interrogators, but given the new developments, his lies may be viewed as self-destructive irrational behavior in a high-stress situation instead of proof of guilt.
Some of the witnesses who saw the child’s horrified reaction to Katusa may have influenced the child regarding her reaction.
Finally, ignoring the media circus itself, the military advocate-general would admit that the power of the media did produce new evidence that was in Katusa’s favor, and some items that were more neutral. This neutrality made the overall picture less clear.
In addition, the military advocate-general would say that some new exonerating evidence came forward, and some new incriminating evidence was quickly found to be lacking.
Of course, the problem with this narrative is that it seems awfully convenient for a case that turned around so radically in one week.
Might it not have been possible for investigators to arrive at the same evidence if they had dug deeper? Might they have dug deeper if the defendant was not Palestinian?
There are no easy answers, but the questions will be important to struggle with, in order to avoid such a catastrophic repeat in the future.
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