(This report was initially published in Hebrew)
The court hearing in the case “The State of Israel v. Palestinian Poet Dareen Tatour“, held on Tuesday, March 28, was meant to be short, even boring. Only one defense witness remained and his testimony was intended to be purely technical. Since the parties will submit the summaries in writing, and each side will be given about a month to write them, we expected that, following this hearing, Judge Adi Bambiliya-Einstein will set the next hearing in two and a half or three months time.
Finally, we watched a tense legal drama with original artistic elements.
The claim of discrimination in enforcement
The last witness on behalf of the defense was a policeman – Chief Inspector Yaniv Hami – who is responsible in the Israeli police for answering public requests in the context of freedom of information.
One of the defense arguments in this case is the claim of discrimination in enforcement: while the network is full of severe and violent incitement against the Palestinian Arab residents of Israel, the police and the State Prosecutor’s Office prefer to investigate and prosecute almost only Arabs, even for relatively moderate publications. In the early stages of the trial, the attorney at the time, Abed Fahoum, asked the judge to instruct the police and the state prosecutor to provide him with relevant statistical data so that he could substantiate his claim. The judge refused the request on the grounds that there was not even a shred of evidence of discriminatory enforcement.
The current defense lawyers, Gaby Lasky and Nery Ramati, have found a way around this obstacle. It turned out that in June 2016, the “Negev Coexistence Forum” submitted a request under the Freedom of Information Act to receive data about investigations, arrests and indictments for offenses involving incitement on social networks. The police’s reply was given to the applicants in August 2016 by Chief Inspector Hami, and he was now summoned to deliver it as a defense document in Tatour’s case.
At the time, John Brown and Noam Rotem covered the police data as received in a long (Hebrew) article in “Local Call” under the headline “Police data: dozens of indictments against Arabs for incitement, zero against Jews.”
Attorney Ramati gave in advance to the prosecution the data that he had received from the coexistence forum, but it turned out that the data brought by Inspector Hami to the court was organized in a different manner. The prosecutor, Alina Hardak, claimed that the defense had misled her and attempted to provide the court with data that is not backed by the testimony of the witness. “No,” explained Ramati. All he asks for is to submit to the court the data that the witness brought as he brought it. The prosecutor had to agree. The data that was actually submitted wasn’t seen by the parties prior to its submission, and they will be able to study the details only after the printed pages will be scanned into the court’s file. The witness also couldn’t answer most questions, since the reports were produced by a statistician on behalf of the police, and he only mediated their transfer to the public.
The prosecution wins another month of detention for the poet
At the end of the Inspector’s testimony, Attorney Ramati said: “These are my witnesses”. With this ended the defense’s case. We expected that the timetable for the summaries and the verdict would be set, but the prosecutor drew a surprise. She asked to summon another witness, attorney Hussam Maw’ed, who advised Tatour in the first days after her arrest.
Here we return to October 11, 2015. At 3:00 before dawn, a special force of the Nazareth police, accompanied by Border Police, surrounded Tatour’s house, woke up her family and took her to detention and interrogation. We learned something about the traumatic experience through the testimony of one of the policemen who interrogated Tatour on the day of her arrest. He asked her whether she was religious. When asked by the defense why he asked this question, he replied that she did not wear a headscarf while in the pictures on her Facebook page her hair was covered. She explained that the policemen who took her did not even let her finish dressing.
She described the sequel in her testimony in court. She was held in a car in the police yard while police officers passing by called her a “terrorist” and cursed her. At 5:40 am she was brought for the first interrogation but refused to answer questions before consulting a lawyer. At 9 am she was brought back for interrogation after consulting attorney Hussam Maw’ed. The investigation was conducted before the police examined the material on the computer and the phone that had been confiscated from Tatour, and the investigator charged her with many offences, most of which do not appear in the indictment that was filed later. Tatour denied all that had been attributed to her. In later interrogations, the interrogators presented Tatour with the materials they found on her computer and phone. She admitted publishing them and explained in detail her intent behind each publication.
When Tatour testified in November 2016, she was asked by the prosecutor why she “lied” during the interrogation on the first day of her arrest. She explained that in her meeting with the lawyer he told her that she was in serious trouble, that she could be sentenced to seven years in prison, and advised her to deny everything. At this stage it was not clear to the police or to Tatour what the charges against her were. It is hard to guess what the lawyer could understand at the time from the frightened and confused detainee, and what he did actually advised her. I would doubt that he would even remember, more than a year and a half later, the details of their conversation.
The prosecutor is now demanding that attorney Maw’ed will be brought as a witness on behalf of the prosecution in order to refute Tatour’s testimony regarding the advice he gave her.
Attorney Ramati was surprised by the unusual step taken by the prosecution to bring a lawyer to testify against his client. He objected sharply to summoning the witness. He requested to submit his objection in writing, even the next day, so that it could be properly explained. But the Judge told him that if he will not explain his objection now, she will oblige him to appear in the courtroom on the next morning. Finally Ramati explained that his objection was not on specific legal claims, but on an ethical basis, as bringing lawyers to testify against their clients constitutes a serious violation of the ability to maintain trust and allow honest consultation. Alternatively, Ramati requested that even if attorney Maw’ed would be brought to testify, it would be limited to what Tatour said in court regarding their consultation.
The judge approved the prosecutor’s request to summon the witness, refused to limit his testimony, and set a special session on April 27 at 12:00. This means that the trial will last for another month, as will the house detention and the denial of Tatour’s freedom.
We had already intended to go home when the prosecutor reminded everybody that she wanted to submit to the court three videos that were shown to the defense witness, Dr. Yoni Mendel, during cross-examination (in the previous court hearing).
What the prosecutor actually brought with her, in order to add to the evidence, was a sheet of paper with links to the YouTube videos and a burned disc with a text file containing links to allow the judge to play the videos.
Attorney Ramati fiercely objected to submitting the links to the videos and claimed that whoever uploaded the films to the site could have also changed their contents since.
Sometimes, when you can’t watch the movie itself, you can at least hear the story. In one famous example, the prisoners in the famous movie “Kiss of the Spider Woman” spent their time telling films.
In the previous trial session, the videos were presented to the witness from a laptop placed at the edge of the judge’s desk while the prosecutor and the defense attorneys were standing next to him. We as a crowd were disregarded and saw nothing. This time, through the argument about the acceptability of the films as evidence, we were rewarded with listening to a summary of the films’ stories not once but in three different versions, from the defense attorney, the prosecutor and the judge.
The version brought by the defense counsel was the most detailed. He recalled that the first two videos were presented to the witness (which was summoned as an expert translator) as a sort of spontaneous examination of his competence. All that was recorded in the protocol were fragments of translated sentences from what was written and said in the videos. Since the judge doesn’t know Arabic, it is clear that watching the videos will not help her formulate a learned opinion about his ability as a translator.
Therefore, the prosecution’s insistence on submitting the videos can only be construed as an attempt to introduce new content that will strengthen the prosecution case and bias the court against the defendant, bypassing all the due procedures for presenting evidence in a criminal trial. The videos were not neutral material for testing translation. In one video, a Palestinian man announced his intention to carry out an attack in Tel Aviv and to be a Shahid. The second video is called “the lovers of the stabbings” and shows the picture of Hadeel al-Hashlamoun, who is mentioned in Tatour’s poet, among the pictures of perpetrators of attacks.
Regarding the third video, a section of it was presented to the witness and he was requested to describe what he saw. He replied that he saw stone throwing and another round of the violence from both sides. Now the defense attorney made it clear to us what the prosecutor was looking for in the video: In one scene a car was seen running over three boys. Attorney Ramati said that the video was known to him as a case in which a settler ran over Palestinian youths, but he quickly explained that his testimony on the matter, as well as the prosecutor’s opinion, can’t be accepted by the court as evidence about the content of the video. The prosecutor wanted to prove that, just as the witness did not express sufficient shock at the Palestinian violence in the video, he also ignored the (non-existent) violence in Tatour’s poetry…
The prosecutor insisted on the importance of the court watching again the videos in order to understand the context of Dr. Mendel’s testimony. She even suggested that the court should watch the films with the defense attorney at this hearing to ensure that nothing has changed since they were presented in court at the previous session. The defense refused.
The most violent version we heard, albeit in an abstract form, was the depictions of the plots that the judge told. Unfortunately, like most of the judge’s remarks, these were not recorded in the minutes. She explained to the defense attorney that if, for example, the film showed how cats’ heads were smashed, but the witness called the film “playing with cats,” this indicates the witness’s approach.
Involving the audience in the plot
In modern plays they sometimes make the audience participate in the play.
During the debate about the ability to change a YouTube video after it was published, the prosecutor claimed to know for sure that a published film can’t be changed without changing its link. The defense attorney explained that he thinks differently, but added that he is not an expert, just as the prosecutor can’t testify as an expert on the subject. I passed him a note saying that I have a YouTube channel and that I usually edit films after they are published. He suggested bringing on the spot a witness with experience in publishing and editing videos on YouTube.
Finally, the judge decided that, since she can’t decide the factual question of whether it is possible to edit videos after they are posted on YouTube, she will not accept the links at this stage. It was the first victory in the Sisyphean struggle of the defense in a trial in which the prosecution had already crossed many red lines and reached delusional realms.