Presumed guilty

On Sunday, the Supreme Court overturned the acquittal of Nahum Korman on charges of manslaughter.

Korman, the security officer of Hadar Betar, was found guilty of the death of an 11-year old Palestinian, Hilmi Shousha, in 1996. Korman had gone to the village of Husan because his, and other Israeli vehicles were being stoned by the boy.

He claimed that the boy fell and hit his head while fleeing. The prosecution claimed that Korman had kicked the boy on the side of the head.

In acquitting Korman of the charges in August 1999, Jerusalem District Court Judge Ruth Orr found that the eyewitness testimony of two of the deceased's cousins was completely unreliable. One of the boys admitted to having fabricated his story under pressure from the deceased's brother.

Orr further found the testimony of government pathologist Dr. Yehuda Hiss to have been heavily influenced by the reenactment of the "crime" he witnessed prior to examining the body. That "reenactment" was based on the cousins' testimony.

Orr described Hiss as having "ignored important pathological findings that did not correspond to his [findings]."

The Supreme Court did not question Orr's determination that the eyewitnesses were unreliable. Nevertheless, it overruled the trial court judge and convicted Korman on the basis of Hiss' report and other "circumstantial evidence."

In her opinion, Justice Dalia Dorner concluded that no other logical explanation had been offered for the blow to the back of the deceased's neck, and thereby shifted the burden of proving his innocence onto Korman.

She also noted that when first questioned by the police, Korman had said that the deceased appeared to faint but failed to specify that he had fallen backward and that Korman had subsequently refused to be interrogated prior to his testimony at trial. (She thus appeared to be drawing negative inferences from his exercise of the right to remain silent.)

On that basis, Dorner determined that there could be no reasonable doubt as to Korman's guilt. She thereby implicitly determined that Orr's decision was "unreasonable."

To anyone trained in American law, the Supreme Court's action simply defies belief. It violates the basic protection against double jeopardy - i.e., the right not to be tried twice for the same criminal offense. The Supreme Court, in effect, retried Korman - only this time without benefit of witnesses or cross-examination.

In the American legal system, an acquittal cannot be appealed. Even in other legal systems, where such appeals are permitted, the appellate court will rarely enter a guilty verdict. Rather it will return the case for a new trial.

That approach is grounded on solid policy grounds. Great deference is shown to the ability of the trier of fact, who observes the demeanor of witnesses, to determine their credibility.

The Supreme Court also appears to have denuded the standard of "guilty beyond all reasonable doubt" of all meaning. That standard is a very high one. It demands much more than that the prosecution prove that its charges are "more likely than not" true, or that they are supported by "common sense."

"Beyond a reasonable doubt" does not mean a determination that the prosecution's pathologist deserves a higher grade than that of the defense. In Korman's case, there was no credible eyewitness. Orr found that Hiss had been eager to confirm the reenactment he had witnessed, and that there was testimony by defense pathologists consistent with Korman's claim the deceased had fallen and struck his head.

Moreover, Orr was well within her rights to be skeptical of the pathological findings of Hiss, who has long been the subject of controversy as director of Israel Institute for Forensic Medicine, at Abu Kabir. Last November, a local Tel Aviv paper Ha'ir ran a 12-page expose of Abu Kabir and revealed how the national lab allows medical students to practice on bodies sent there for autopsies, and transfers body parts for transplants without permission from the family of the deceased.

The family of Alastair Sinclair, a Scottish tourist, who, hanged himself in an Israeli jail, was forced to bring suit for the return of missing body parts.

University of Glasgow pathologists, who did an autopsy at the request of Sinclair's family, found that it had been returned without a heart (which they suspect was used for a transplant) and without the crucial bone needed to confirm the claim that he died from hanging.

In 1997, Hebrew University geneticists concluded that Tzila Levine of California was the daughter of Margalit Omeissi, a Yemenite immigrant whose infant daughter disappeared from the Rosh Ha'ayin infirmary in 1949. Hiss, however, conducted new tests against the family's wishes, and concluded that the two were not related.

Last month, Moshe Landau, former president of the Supreme Court, complained bitterly in an Ha'aretz interview of the arrogance of the present Supreme Court. The justices seem to be of the opinion that there is nothing beyond their ken. Justices, for instance, have termed it "common knowledge" that religious and non-religious Jews cannot live together in Rehovot, where, as it happens, they have done for 100 years.

They frequently review, as the court of first instance, complex administrative law issues, without having the time or means to develop a proper factual record. And today the justices feel no compunction about assuming the most ominous responsibility imposed on any judge - that of consigning someone to years behind bars - without even a trial.