Fairness for Daniel Pinner

What is troubling about Daniel Pinner’s case is precisely the fact that it is not unusual. Pinner has been in jail since June 22, when he was arrested for allegedly shooting a Palestinian in the leg during a stone-throwing battle between Palestinians and settlers near Gush Katif. He denies the charge.

Since the bullet was never found, the indictment relies mainly on witnesses’ testimony; the court will decide whether contradictions in this testimony (for instance, one witness claims that the shooter wore a white kippa while another says he wore a black hat); and various flaws in police procedure (for instance, police did not conduct a line-up or measure distances and firing angles) suffice to undermine the evidence against him (for instance, that all three witnesses say the shooter used an Uzi, while prosecution and defense agree that the two other armed men present carried M-16s).

What is incontrovertible, however, is that instead of being treated as innocent until proven guilty, Pinner – like thousands of other indicted Israelis – is being treated as guilty until proven innocent: He has thus far spent over five months in jail for a crime that he has not yet been, and may never be, convicted of committing.

If he is ultimately convicted and sentenced to more jail time than he has already served, no injustice will have been done. But if he is acquitted – or even convicted but sentenced to less time than he has already served, as sometimes happens – it will retroactively turn out that he has been imprisoned unjustly. And unfortunately, that is not uncommon: Though suspects cannot be remanded unless there is prima facie evidence against them, such evidence often proves inadequate for conviction.

Two recent cases illustrate the point. One is that of Captain R., who was charged with “confirming the kill” of a teenaged girl in Gaza. The indictment, based mainly on testimony from two of his soldiers, seemed solid: No one could have predicted that both men would confess in court to having fabricated their testimony in order to get rid of a captain they disliked. But the fact remains that R., who was ultimately acquitted, spent almost four months under arrest on his base until these mid-trial admissions caused the judge to release him.

The second is that of Noam Federman, who was arrested in April 2002 and charged with belonging to a Jewish terror cell. He spent 46 days in jail by court order, a year under administrative house arrest and over eight months in administrative detention before the prosecution withdrew the indictment in May 2004 (the state claims that the 20 months of administrative incarceration were unconnected to the indictment, but since they began soon after the courts decided against remanding Federman and ended abruptly when the indictment was withdrawn, this claim strains credulity). Here, too, the prosecution could not have foreseen that its key witness would so discredit himself with contradictory testimony in other trials that it would be left without a case. But meanwhile, Federman spent two years incarcerated for a crime of which he was ultimately cleared.

SUCH ACQUITTALS are precisely why defendants should be remanded until the end of proceedings only in exceptional cases. Yet in Israel, remands are relatively common, even when there would seem to be alternative solutions.

Pinner, for instance, has never before been accused of a weapons offense, though he has owned a gun for about five years. That in itself would seem to indicate that he is hardly a public menace. But even if one assumes that he is a threat, jail is not the only solution: The courts could confiscate his gun and restrict him to some community where he would not encounter Palestinians, or even put him under house arrest. Either would infringe on his freedom far less than throwing him in jail.

Moreover, little effort is made to minimize remanded defendants’ time in jail by trying them expeditiously. In Pinner’s case, for instance, there have been only five hearings over the past five months; a sixth and supposedly final hearing is scheduled for December 15. In other words, a trial that should have taken a week was instead dragged out for more than six months.

Supreme Court Justice Edna Arbel, in her recent rejection of Pinner’s application for release from jail, described this as a “reasonable pace.” And by Israeli standards, it is: Many trials last far longer. But by any objective standard, there is nothing reasonable about keeping someone who might yet be acquitted – someone who is supposed to be presumed innocent until proven guilty – in jail for six months for a trial that could be finished in a week. Granted, if Pinner is guilty, no harm has been done. But if he is acquitted, the difference between six months and six days in jail is enormous.

What makes such foot-dragging particularly outrageous is that expeditious trials are available for the well-connected, who need them less. Just last week, Tel Aviv District Court President Uri Goren offered to hear the case of former judge Osnat Alon-Laufer, who is charged with illegally obtaining her husband’s phone records and harassing his suspected girlfriend, every day until it is finished. Yet Alon-Laufer is neither in jail nor under any lesser form of restriction. Thus the harm that she would suffer from a drawn-out trial is far less than that suffered by defendants who have been remanded.

The Israeli court system pays lip service to the presumption of innocence, but in practice, it frequently treats defendants as if they were presumed guilty: People are remanded until the end of proceedings even when less restrictive measures would do, and their trials are conducted lackadaisically, on the assumption that the jail time does not matter, because it will eventually be deducted from their sentences. The result is that innocent people often spend months in jail – not due to unavoidable mistakes, but out of callous disregard for the possibility that they might be innocent. And that is something that no self-respecting legal system ought to tolerate.