The Be’er Sheva District Court may prohibit the use of a security video showing four men beating an Eritrean asylum seeker as evidence. The men are on trial for an incident involving a 2015 terror attack at the city’s central bus station.
On Thursday, Judge Aharon Mishnayot clarified that he had yet to decide on the issue, after it was reported on Wednesday that he had ruled the video was inadmissible as evidence.
The video is the central piece of evidence against those who allegedly assaulted Haftom Zarhum, whom they mistook for the terrorist. Zarhum was also shot by three different people – although not by the terrorist – and later succumbed to his wounds.
Mishnayot said on Thursday that the words “at this stage” were left out of his original decision, and no final decision has been made.
Earlier in the hearing, the defense attorneys argued that the police obtained the tape without proper authorization and did not document its handling properly. The prosecutors said they were waiting for the judge’s reasoning in order to decide how to proceed. The accused were supposed to testify on Thursday, but due to Mishnayot’s decision the hearing was postponed.
A source familiar with the details told Haaretz that the police did not have a warrant to take the tape from the Be’er Sheva central bus station. The source said the prosecution had submitted to the court a document signed by a policeman who said that he took the tape, but the document doesn’t say who at the bus station gave him permission to do so.
Another argument by the defense was that there was no proper recording of how the evidence was handled by the police. According to sources familiar with the case, the documentation submitted by the prosecution was lacking.
In a document submitted by attorney Shelly Rothschild, who is in charge of criminal cases in the Southern District Attorney’s Office, she argued that the court must accept the security recordings as evidence. “In the case before us, when all the accused who were involved in the incident documented on the disk confirm their presence there and their behavior there, this should be enough to replace the technical requirements of acceptability,” she wrote.
The prosecution responded to the court’s decision by saying, “Since we’re talking about a proceeding that is still before the court, we cannot address any argument regarding the evidence in the case at this stage.”
The killing took place in October 2015, after a terrorist opened fire at the Be’er Sheva central bus station, killing a soldier and wounding 10 other people. The four accused – David Moyal, Evyatar Damari, soldier Yaakov Shamba and Israel Prisons Service employee Ronen Cohen beat Zarhum because they thought he was the terrorist. The coroner’s report submitted by the prosecution said that the four had caused Zarhum serious injuries, including a broken nose, but that it was the eight bullets that were fired at Zarhum by three different people that caused his death. A total of nine people can be seen attacking Zarhum in the video, but only these four were charged.
The four are accused of aggravated assault, which is punishable by up to 20 years’ imprisonment. The prosecution had previous raised the option of a plea agreement that would have reduced the charge to assault of a helpless person, for which the maximum punishment is five years’ imprisonment, but the defense attorneys refused the offer. On the other hand, a proposal made by the court during a mediation process to reduce the charge to “assault that caused injury,” whose penalty is up to three years’ imprisonment, was rejected by the prosecution.
Attorney Zion Amir, who is representing the prisons service officer, Cohen, said the prosecution would have no choice but to agree to an acquittal, since the indictment was based primarily on the video and the other evidence alone wasn’t enough for an indictment, let alone a conviction.
“Given the fact that the main evidence, that is, the video that documents the events, was not admitted and given that the court accepted the defense arguments regarding the reasons it was inadmissible, it’s clear that the prosecution will have to agree to acquit all the accused,” Amir said. “The prosecution can of course appeal to the Supreme Court, but I highly doubt it will do so. I think the public interest requires avoiding the filing of an appeal in this case.”
He added that his client had “Been through a lengthy delay of justice, which has lasted two years, and until two months ago he had been suspended from his job.”