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very day Shalom Azulay, 72, before leaving his home in Haifa, places a carefully folded certificate in his pocket. It is his most prized possession: the "Presidential Award for Volunteerism" he received in 1986. The prize, awarded to Azulay, a vegetable seller in the Haifa market, by Chaim Herzog, Israel’s president at the time, commends him for "devoting days and nights to bettering the circumstances of others." It’s a reminder of better times, before his life was darkened 16 years ago when he was convicted of defrauding an elderly woman. By 2011, he had completed the community service sentence he received and returned to his life. But, he felt, nothing was ever the same anymore. Shame became a close companion. He avoided social and family events, in fact, he rarely left his home anymore.

Over the years since, Azulay has repeatedly told anyone willing to listen that he fell victim to conmen who used him to sting the elderly woman. Two years ago his claims were heard when the public defender’s office decided take up his case and submitted a request for a retrial. "I want everyone to know - my family in particular - that I was convicted for no reason at all," says Azulay.

"We believe that Azulay’s case is an example of a wrongful conviction that highlights the justice system’s ability to completely crush someone. True, he wasn’t charged with murder, but his entire world came crashing down on him, and we provide help to everyone, with minor offenses just like with more serious ones," Noa Mishor, the head of the Department for Retrials at the Public Defender’s Office, tells Shomrim. In June, after a two־year wait, Supreme Court Justice Hanan Melcer rejected Azulay’s request for a retrial, ruling that what the public defender’s office submitted as new evidence did not constitute sufficient grounds to reopen the case. But on that same day, Justice Melcer did uphold a second motion for a retrial in another case, that of Lior Miraz. Miraz was convicted in 2015 of accepting a bribe and had since claimed his trial was a miscarriage of justice. Miraz’s was only the 33rd request for a retrial granted in Israel’s 72 years.

The plight of the wrongly convicted and the concept of retrials themselves have increasingly come into public view thanks to several high־profile cases in the United States. Some of them have been highlighted in a Netflix documentary series about the Innocence Project, an American legal organization that has secured the release of thousands of people since it was established almost 30 years ago. This new, popular fascination with retrials and the push for exoneration of those thought to be wrongly accused, has been amplified by celebrity advocacy. Among the most high profile of these celebrity advocates is Kim Kardashian, the reality TV star, who over the past two years has helped to secure the release of a woman serving a life in prison sentence for federal drug and money laundering charges and who joined the successful effort to stop the execution of a man facing the death penalty for allegedly raping and murdering a young woman. 

Retrials in Israel are extremely rare. Since Israel’s founding in 1948, 33 of the 700 retrials requested of the Supreme Court have been granted. Twenty־seven of these cases ended in the acquittal of the convicted individual. Of the others, several did not get to the retrial stage. Instead, state prosecutors simply retracted the original indictment and the convicted individual was released. Such was the case of Amos Barnes, who was convicted in 1976 of the murder of a soldier, Rachel Heller, and sentenced to life in prison. Barnes was steadfast in his fight and after a third request for a retrial, one was granted. But before the case reached the retrial itself, the state decided to acquit him instead. Another retrial case etched in Israeli collective memory is the battle waged by five men convicted of the 1983 kidnapping and murder of 14־year־old Danny Katz. Their attorney argued they had given their confessions under duress. Their convictions were upheld in a 2000 retrial.

But the majority of those granted retrials in Israel weren’t serving lengthy sentences or convicted of serious crimes. Most had been convicted of minor offenses like planning and construction infractions or traffic violations. Among those who worked to clear their names for years are people most of the Israeli public has never heard of - a long list which includes Ismiya Abu Kadir, Osama Git, Khaled Hamada, David Cohen, Yitzhak Bakring, Shlomo Segev, Nurdin Nur Sharia, Talila Kasubak.

A Long Road to Innocence

The legal saga of Shalom Azulay, the vegetable seller from Haifa, began in 2004 when Azulay met up with a friend from the market named Joseph Solomon who invited him to visit a resident he knew in a local nursing home. The woman’s name was Ilona Fried, described to him as a lonely and in poor health, a woman who had no children of her own. They were going to cheer her up with a visit and some kind words, a blessing or two. On the way to the nursing home, they picked up another one of Salomon’s friends, Arie Weintraub.

That visit, of just a few minutes, would alter the course of Azulay's life. According to Azulay he met and bestowed blessings on Fried, Weintraub exchanged some words with her, and then they all left. Fried died the following day. Shortly afterwards, Salomon filed an affidavit to the courts to uphold an oral will, claiming that he was Fried’s sole heir, whose assets included an apartment and several hundred thousand shekels. He attached an affidavit signed by Weintraub and Azulay who swore they had heard Fried's request to bequeath her assets to Salomon. But then one of Fried’s relatives appeared and said she was Fried’s rightful and legal heir. A police investigation into the matter revealed the affidavit filed by Salomon was false. Salomon, Weintraub and Azulay were then indicted on charges of conspiracy to commit a crime, attempted fraud, perjury, and the obstruction of justice.

Salomon was convicted and sentenced to 24 months in prison and a fine of NIS 10,000. Azulay was convicted and ordered to do six months of community service and serve a six־month suspended sentence. He claimed from the very beginning that he hadn’t heard Fried say that she bequeathed her property to Salomon. But the court was presented with two affidavits, allegedly bearing his signature, in which he swore he had heard the woman’s request. Azulay approached the police and asked them to investigate what he said was the falsification of the affidavit - but his request was rejected. He argued in court that he had fallen victim to a con scheme, but his defense attorney urged him to accept a plea bargain. The transcript from the court exposes the absurdity of the hearing. Azulay’s attorney first argued that his client’s signature was forged and then requested immediately afterwards to move things ahead and reach an agreement on a plea deal - namely, a conviction with the consent of his client. "The lawyer didn’t consult with me," Azulay says. "He told me just before we walked into the court that he had closed a deal for six months of community service. I thought he was joking. And then we entered the court, and he repeated the same thing. I started yelling, but he said, ‘If you don’t shut up, you’ll end up in prison, just like President Katsav’" [referring to a former Israeli president who was sent to prison].

Mishor, Azulay’s current lawyer, struggles to restrain herself when talking about the legal representation her client originally received. "The defense lawyer knew that his client claimed that the principal piece of evidence against him was false, yet still pressured him into accepting a plea bargain. The lawyer continued to behave in a disgraceful manner thereafter too, with Azulay insisting on securing a retrial."

Attorney Horovitz, Public Defender’s Office: "The State Attorney’s Office doesn’t go out of its way to help us. It’s a conflict of interest for them. It’s not deliberately ill־intentioned, but they were the ones who handled the case, and their people fought for a conviction. So, when someone submits a request for a retrial, they obviously don’t have the ability to examine things willingly and impartially."

After being sentenced, Azulay, feeling wronged, insisted on appealing his case and turned to the Haifa District Court ־- but this time without legal representation. (He was unaware, at the time, he said, how to best seek out proper legal assistance). He failed, however, to convince the court and was sent to perform his community service at Haifa’s Rambam Hospital. He says that the while the work at the hospital was personally fulfilling, the sense of injustice continued to gnaw at him. After completing community service, Azulay, again without legal representation, filed a motion for a retrial, but was denied. He found a sympathetic audience for his version of the story only after approaching the department of retrials within the public defender’s office. "We examined his handwriting and compared it to the affidavit, we asked for a psychological evaluation, and we studied the testimony given by Salomon - and we were convinced that he was wrongly convicted and had no part in the offenses attributed to him," says Mishor. The Supreme Court, however, wasn’t swayed. It rejected Azulay’s request in June, leaving his conviction intact. Azulay has been left reeling, he says by the court’s decision.

One in 30

Over 4,000 criminal indictments are filed by the State Attorney’s Office in Israel every year, with some 90 percent expected to end in a full or partial conviction. But there is little discussion of the mistakes that can made along the way.

Professor Boaz Sanjero who teaches at The College of Law and Business in Ramat Gan, is the author of numerous articles and books on the subject of wrongful convictions. He estimates that around 5 percent of prison inmates in Israel are innocent. In other words, of the 20,000 incarcerated people in Israel, around 1,000 are doing time for crimes they didn’t commit. Some jurists dispute this figure as too high. Regardless, retrials in Israel remain extremely rare.

Some 30 applications come into the public defender’s office each year. Of those, just one at most makes it to the courts - and is usually rejected. Some of the requests for retrials also land on the desks of private lawyers, like that of Yarom Halevy, who, after receiving a fresh opinion on a specific piece of evidence, filed request for one this past year on behalf of Roman Zadorov. In April, the State Attorney’s office said they reexamined the evidence and concluded there was no need for a retrial.

Zadorov was convicted in the 2006 murder of 13־year־old girl named Tair Rada and is serving a life sentence. The brutal murder and its aftermath have been big news in Israel. Rada was found stabbed and beaten in the bathroom stall of her school bathroom in the Golan Heights. Zadorov confessed to Rada’s murder, but claims his confession and a reenactment of the crime were coerced. In 2015 the Supreme Court upheld Zadorov’s conviction.

"The chances of securing a retrial are next to nothing," said Prof. Aviad Hacohen, dean of the Sha'arei Mishpat Academic College, after Halevy filed Zadorov’s request for a retrial. "You can count the number of retrials in the State of Israel on your fingers."

Attorney Mishor, Public Defender’s Office: "You sometimes have to wait for a very long time to get answers from the State Attorney or to have them look for evidence that we can examine. And often it turns out that there’s nothing left to examine."

Attorney Joey Asch, who until recently headed the State Attorney's Criminal Department and was responsible for rendering opinions on retrials, speaks to the complexity of the retrials. "When someone cries innocence, you can’t just shut the door in their face, because the court or state prosecution may have made a mistake, but there needs to be some kind of restraint on the conducting of retrials. The system won’t be able to function if it’s flooded with petitions for retrials. There’s still the principle of the finality of judgement. So there’s a balance, with an open door on the one side and the need, on the other, to present powerful evidence or strong arguments that can tip the scales."

The Incentive to Confess

The difficulty in obtaining a retrial in Israel stems from the legal process itself, legal experts say, which bombards the suspect with a set of incentives and temptations designed to exact an admission of guilt. "Already at the interrogation stage, the police investigator will say to the suspect: ‘Cooperate with me and I’ll help you,’" explains Dr. Anat Horovitz, deputy chief at the Public Defender’s Office. "When a suspect is arrested, he or she is under a lot of stress to find a way out, and the police investigator also wants to close the case as quickly as possible. In the court, too, the system urges the accused to confess in order to shorten the trial process, and perhaps receive a lighter sentence as well. When someone wants to appeal the sentence they’ve received, they’re advised to waive the appeal."

The predicament of someone who wants to fight for their innocence becomes more dire once they’re sent to prison. A request for a retrial following a conviction is often filed once the individual is already serving time. But an inmate who insists that they have done nothing wrong and refuses to express remorse and undergo rehabilitation won’t be eligible to apply to the parole board for an early release. An early release comes as a reward for rehabilitation and good behavior, and if an inmate continues to claim innocence, they are seen as someone who refuses to take responsibility for their actions. "This is particularly true when it comes to individuals convicted of sex crimes," says Mishor, the public defender. "The system prefers to encourage suspects to confess, to serve their punishment and go on with their lives after doing the time, rather than to listen to those who claim they are innocent, so as not to place too heavy a burden on the police, the courts and the prison systems."

Representatives of the State Attorney’s Office, however, defend the current system. "The court must incentivize an admission of guilt," says Asch. "Yes, that comes with a risk, but the courts do everything they can to neutralize this risk. The judges always ask the defendant if he understands what he’s confessing to, and ask him to read the charges. You have to understand that in most instances, the state files an indictment that is backed by strong evidence. The state prosecution has a good filter, and when a case goes to court, there is evidence and the accused understands that. It’s possible, of course, to conduct a trial to the very end and waste judicial time, but if the evidence is strong, it’s better to confess and come to an agreement in return for something of value."

How Does One Get a Retrial?

The long road to a retrial begins with an examination of the case by the defense attorneys, private or from the public defender’s office, to ascertain whether there are sufficient grounds for one.

According to the law, a motion for a retrial must be based on one of four measures: Someone else was convicted of the offense of which the applicant was convicted; new evidence that wasn’t available at the time has emerged and could alter the court’s ruling; a piece of evidence presented in the original trial was found to be forged or false (perjury on the part of a material witness, for example); there is a genuine concern regarding a miscarriage of justice in the original conviction.

Up until about 15 years ago, a request for a retrial would also go through the attorney general’s office; today, however, it is filed directly with the Supreme Court. When a convicted individual approaches the public defender’s office with such a request, the initial review is a technical one. It can be a lengthy process to complete as it tries to determine whether or not the request meets one of the four grounds for filing the motion. That’s how months and even years can go by while the public defender’s office tries to come up with unequivocal evidence to support the claims of the convicted individual, so that a request can be filed to the Supreme Court.

"One of the problems is that the review in Israel is carried out by the ‘side of the convicted individual,’ namely, his defense counsel, even though it’s a purely administrative review, to begin with at least," says Prof. Oren Gazal־Ayal, dean of the Law Faculty at the University of Haifa. "In England, for example, there’s an independent mechanism that examines the cases and advises the court whether or not to hold a retrial." Gazal־Ayal is a member of the public commission, appointed in 2018 by former justice minister Ayelet Shaked, tasked with examining wrongful convictions and the conducting of retrials in Israel. The commission is headed by retired Supreme Court Justice Yoram Danziger, and Gazal־Ayal serves as his deputy. In September, the commission published the first of four reports in which it outlines in detail all the causes of miscarriages of justice in the judicial system that lead to the incarceration of innocent individuals.

Professor Gazal-Ayal: "Israel doesn’t have a system for looking into errors that may have been introduced during criminal proceedings. There are places in the world in which the justice ministry or the State Attorney's Office has a department whose job it is to check for and seek out wrongful convictions. Departments like this in the United States are responsible for the reopening of numerous cases that ended in convictions."

The commission is working currently on its second report, which focuses on how the process for retrials works in Israel. Gazal־Ayal chooses his words carefully, stressing that he has yet to consolidate his position on the handling of retrials in Israel. "Israel doesn’t have a mechanism tasked with looking into errors that may have transpired during criminal proceedings," he says. "There are places in the world in which the justice ministry or state attorney's office has a department whose job it is to check for and seek out wrongful convictions. Departments of this nature in the United States are responsible for the reopening of numerous cases that ended in convictions."

Asch, who carried out such reviews while working for the state attorney’s office, and determined whether or not the state accepted or rejected requests for a retrial, believes that these decisions should be made by an objective body. "At the time," he says, "I went to see the attorney general, Yehuda Weinstein, and suggested setting up a body similar to the one that exists in England. The state prosecution always tries to make objective decisions, but I wouldn’t be opposed to a different process. I accept some of the claims raised by the public defender’s office."

Such an independent authority has not been established, and in its absence, when a request for a retrial is submitted, it is submitted by the defense attorneys and then the state prosecution will be asked to respond and offer its opinion. In general, the attorney who handled the case will be the one to respond. Perhaps not surprisingly, he or she, of all people, won’t usually rush to check if the judicial process was faulty. In addition, the evidence and case material are held by the state prosecution, and the public defender’s office doesn’t have access to that information without first getting the consent of the state prosecution or obtaining a court order. The public defender’s office, therefore, has to rely on the grace of the state prosecution or the court in order to receive approval to see key information and for the retrial process itself.

Evidence? Good Luck in Finding It

Shalom Ovadia spent almost 20 years in prison for the murder of Shmuel Levinson, a lawyer during the course of a Jerusalem robbery in the mid-1990s that resulted in a murder. Ovadia had an accomplice, but Ovadia was the one convicted of the murder, despite a lack of forensic evidence linking him to the scene.

Found at the scene was a balaclava containing hairs believed to belong to Ovadia, but this claim was refuted already during the original trial following lab tests. The shoeprint found at the scene didn’t match Ovadia’s footwear either. Furthermore, none of the 13 sets of fingerprints found at the scene belonged to him. Nevertheless, Ovadia, a drug addict at the time, was convicted, primarily on the basis of a confession he gave while suffering drug withdrawal symptoms. For years, he claimed he didn’t murder Levinson, and the Public Defender's Office tried to help him prove his innocence. During those years, the State Attorney's Office appeared to do its best to sabotage their attempts to do so.

Attorneys Mishor and Horovitz search for the precise words to use when speaking about their colleagues: "The State Attorney's Office doesn’t go out of its way to help us," Horovitz says. "It’s a conflict of interest for them. It’s not deliberate malice, but they were the ones who handled the case, and their people fought for a conviction. So when someone submits a request for a retrial, they obviously don’t have the ability to examine things willingly and impartially."

"I was in office when Shalom Ovadia's request for a retrial came in," recalls Asch. "I remember discussing the problematic nature of the case with the original prosecutor, and current judge, Eli Abarbanel. Cases in which a request for a retrial is submitted are difficult ones. They’re difficult cases in real־time and turn even more difficult 20 years down the line. I remember Abarbanel telling me that during the original trial, he said to the police: Take good care of these exhibits because there’s going to be a retrial - even though he was content with the manner in which he had conducted the trial."

Despite Abarbanel’s foresight, when the request for a retrial was filed some two years ago, it emerged that the police had lost the most important exhibit in the case, the balaclava. It could have served the defense to raise new arguments. Ovadia’s request for a retrial was denied.

The main struggle between the Public Defender’s Office and the state prosecution revolves around the receipt of evidence. The U.S.־based Innocence Project has secured the release of several hundred inmates thanks to a review of DNA tests. In Israel, however, the preservation of evidence and exhibits is often flawed, as illustrated by the case of Ovadia. "You sometimes have to wait for a very long time to get answers from the Office of the State Attorney or to have them look for evidence that we can examine, and often it turns out that there’s nothing left to examine," says Mishor.

Such was the case, for example of Suleiman al־Obeid, who was convicted of murdering teenager Hanit Kikus in 1993 and was recently released. Obeid spent 27 years in prison for a crime he did not commit, according to several defense attorneys who met with him during that period. The girl's family also had doubts about the conviction. In 2010, the Public Defender’s Office looking into the possibility of a retrial and filed a request to receive the cigarette butts that were collected from the area in which the girl’s body was found, only to be told that the evidence had been destroyed. Much has been written about the case, but the bottom line is this: There is no law in Israel that regulates the preservation of evidence and exhibits, despite various State Comptroller reports that criticize the poor handling of evidence in the country. A bill on the subject was drafted in 2015, but never voted on.

With no regulation or set procedure on the matter, "there are cases in which at the end of a trial, the state prosecutor asks the judges to approve the destruction of the evidence, and the motion is upheld," says Mishor. Moves like this, she says, makes almost impossible the chance of returning to the trial years later and re־examining the judicial process that took place. Asch, however, seeks to clarify things: "This was indeed true in the past," he says, "but the norms have changed and evidence isn’t destroyed so readily these days." He adds, nevertheless, that the conditions at the police’s evidence storerooms "aren’t good."

Attorney Joey Asch: "When someone claims innocence, you can’t just shut the door in their face because the court or state prosecution may have made a mistake. But there needs to be some kind of restraint on the conducting of retrials because the system won’t be able to function if it’s flooded with appeals. There’s still the principle of the finality of judgement."

Asch rejects the allegations that the State Attorney's Office deliberately hinders the retrial process. "For the most part," he says, "the State Attorney's Office and the Public Defender’s Office have a good relationship. But you have to bear in mind that the resources of the State Attorney's Office are limited. When I receive an application for a retrial, and I read the ruling and verdict and see that it’s a case with strong evidence, I’m then expected to ‘hand over the evidentiary material’ - this means that I have to go looking at the Hadera police station and Haifa Beach station and wherever else these is information related to the case and produce all the exhibits and evidence, some of it in test tubes. By this point, I know more about the case than the Public Defender’s Office and know that the case is closed from all sides. I collect the material, but I don’t have unlimited resources, and it can take several months. That’s why the idea of a neutral entity to perform the task appeals to me."

Minor Offense - Easier to Obtain an Acquittal?

A review of the short list of convicted individuals whose requests for a retrial were upheld by the courts reveals that most of the cases involved minor offenses, many of which were traffic violations. "Most of the requests for a retrial on serious offenses have been denied," says Horovitz, from the Public Defender’s office. "It’s easier for the court to release an [alleged] conman than to release an [alleged] murderer."

Asch from the State Attorney's Office agrees that "when the offense is a minor one, it’s a lot easier sometimes to show up afterward and refute the charges. I remember a case of a traffic offense in which the individual proved that he wasn’t in the country at the time, and we said there was no point in disputing the fact and agreed to the retrial."That said, a review of the cases suggests that in most cases, the State Attorney’s Office first opposes a request for a retrial, but may reverse its decision at a later stage.

Some retrial requests are handled by private lawyers. Among them is attorney Yarom Halevy, who, in the wake of a new opinion on a specific piece of evidence, filed such a request this past year on behalf of Roman Zadorov, who was convicted in the high־profile murder case of Tair Rada, a 13־year־old girl. (pictured).

Professor Gazal־Ayal cites the work of a colleague: "In the past, Professor Samuel Gross of the University of Michigan claimed that there were more false convictions in cases involving minor offenses, but he has since corrected himself and now claims that it happens even more often with serious crimes. There are many wrongful convictions in cases involving murders and rape too." In other words, innocent people are sitting in jail for both minor and serious offenses, but the fact is that is that acquittals are handed down more often in minor cases.

Will the System Fix Itself?

In the mid-1990s, when attention was drawn to the fact that so few applications for a retrial were granted, a committee headed by former Supreme Court Justice was set up to look into the matter. The committee created what is known as "Amendment 31" to the law, which expanded the grounds for a retrial. The move was expected to increase the number of cases granted a retrial, but that never happened. This can be blamed on the process itself, in which the Public Defender’s Office is left to essentially beg the State Attorney’s Office for help. Also at fault could be a system which encourages an individual to confess, or the fact that evidence is often not stored properly, making it more difficult to "return to the past" using new technology to examine, for example, hair fibers, semen, fingerprints or any other evidence to could shed new light on an old crime scene.

Realizing that something was amiss in the functioning of the system, a second committee was set up, headed by Justice Danziger, and its members are currently discussing the matter in an effort to bring about change and perhaps boost the legitimacy of requesting a retrial. The committee is expected to publish its conclusions in the coming months.

The State Attorney's Office wishes to note that often they are the ones who initiate a move to acquit or re־examine cases. "I remember well the phone call I received from the Central District State Attorney who told me about evidence uncovered in a particular case that appeared to be connected to a different case in which a man was convicted of murder and has been in prison already for 13 years," says Asch. "It was investigative material that hadn’t come to light during the original trial. We informed the lawyer of the man in question, Victor Gueta, and they submitted an application for a retrial. We are still convinced that the man is guilty, but the trial will take place this time with all the evidence and exhibits available."