Ofer - Stone Throwing, Health Problems
Translation: Marganit W.
In the external waiting area we were approached by a woman who asked for our help. She had to pay a fine to release her husband. She was holding the transcript of the trial with the number of the ‘chit’. Naturally, she was not allowed to enter the court compound. The woman asked how she could obtain the ‘chit’ in order to pay the fine. She asked a Palestinian lawyer who happened to pass by to take the document and obtain the chit from the court office. The man said, “Give me 500 shekels, and I will get you the chit”. She did not have the money and had to decline, whereupon the lawyer left.
Hamdan, the public liaison officer, tried to help her later, but this is not the subject of this report; it is only the prologue and a note to the Palestinian Authority that sends lawyers to defend detainees in the military courts.
We came to observe the trial of Malek Alami, whose family lives somewhere near Route 60.
Malek Alami’s trial
Judge: Etty Adar
Defendant: Malek Mahmoud Ali Alami
Prosecutor: Jenny Lubovsky
Defense: The family requested not to publish the attorneys’ names.
Malek’s mother, his uncle and two cousins were present in court.
The judge read the charge sheet which alleged that on two occasions Malek threw rocks on Route 60, charges that he accepted. The interpreter translated and after every paragraph the judge asked, “Do you understand?” Malek nodded and said “Yes.” Then, as in most cases, the defense stated that he had just received the revised charge sheet and requested a delay. It was all routine.
BUT THEN, Haya got up, raised her hand, as in a classroom, and requested the floor. Before anyone had time to react she said in a quiet pleasant voice, “Madam, I’ve known Malek since he was 8 years old. He is profoundly retarded. There is no way he could have done these deeds. He is totally incapable of carrying out such things.”
There was hush in the court. In a courtroom used to aggressive, contentious lawyers, this speech delivered in Hebrew made a big impression.
You have to realize: Malek has been in jail for a month now. He was interrogated and a memorandum of the interrogation certainly exists. The indictment mentions the names of three attorneys connected in one way or another to Malek’s case. Has any of them met with him prior to the trial, or is this the first time the attorney meets with his client? Malek has been with other people all the time. Surely the other prisoners know that he is mentally challenged. But even if one of the prisoners had tried to explain the situation – who would have listened to him? He would have been asked, “Are you a lawyer? If not, it’s none of your business. Are you a relative of his? If not, stay out. Are you a doctor? If not, don’t butt in” and similar legalistic and administrative subtleties.
And so the human being Malek stays in jail, and the court has no idea of his predicament.
As for the investigator – one wonders how the interrogation was conducted of a retarded boy who does not understand the questions and keeps saying yes, yes. A responsible investigator has to present well-founded charges. This one apparently did; the boy answered yes to every question he posed.
As for the prosecutor – she will base her case on the paperwork before her: the incriminations, the minutes from the interrogation, the charge sheet etc. This case epitomizes how voiceless the defendant is in the military court. The judge listens to both sides’ arguments, even though neither of them has any idea whom they are talking about. Should she not look at the people who are brought before her? This is indeed a “case” not a person.
The judge asked Haya: Who are you, and how are you connected to the defendant? Haya said she had been a friend of the family for many years. She suggested that the judge ask Malek’s uncle, who was in the audience, about his nephew’s condition. At the judge’s request, the uncle got up and said that Malek’s problem is that it is difficult to understand what he says, that he has trouble hearing, that he went to school for only two years and then stayed home. His father had the same symptoms, and this must be genetic. The interpreter did not recognize the word “genetic” and translated “mental.” None of the family members said “retarded;” perhaps it is not part of their vocabulary. Thus, the judge asked if the problem is psychological, if they had medical records to prove it, but of course they did not have any. Later, because Haya insisted that the boy is retarded, the judge suggested that the district psychiatrist check the defendant and produce a report.
A little commotion ensued. The defense tried to resume his part in the show, but at this point it was clear that he was out of the loop and that this was the first time he has set eyes on his client. The previous attorney, whether he had met Malik in jail or not, apparently did not bring him up to speed.
The judge decided to hand over the transcript of today’s hearing to the Jerusalem district psychiatrist so that he can form an opinion about the defendant’s competence to stand trial, understand the legal proceedings, and be responsible for his deeds.
The simple truth is that Malek has never been diagnosed. He did not go to school, so he was not tested; he stayed at home among people who loved him and served all his needs. They did not require a diagnosis, and they said about him, as they say about many others “poor soul.”
The debate continued outside the court: it transpires that the uncle told the mother to bring Malek’s medical records, but she does not go anywhere by herself; certainly not to official or administrative places.
Haya told me later that the boy’s father did fetch the paperwork, and t it was written there that Malik has trouble listening and talking (but not because he is deaf-mute, but because he does not process what he hears and he has nothing to say). Now that the paperwork is in the father’s hands and the judge is sending Malek to the district psychiatrist, perhaps all this documentation will reach the military prosecution and someone will see the light and release Malek.
Two questions: what would have happened if Haya had not risen and told the court in Hebrew what she knew?
And second, how many others like Malek linger in the military prisons?