Indeed, this version of the respondent is consistent with some of the evidence material, and in particular with the testimony of Mr. Cohen, the owner of the boarding house where the respondent's father lived, and it is not for nothing that the state ultimately chose to request the cancellation of the indictment. However, the attempt today is to look back in time, and determine a probabilistic level of Most likely It was the failure to present the diary to the respondent at the beginning of his arrest that prevented him from recalling the events of that fateful evening on April 18, 1999, lacking in retrospective wisdom, and as I myself was, I was not convinced that this was indeed the case.
Phone Call Outputs
- This relates to another "investigative omission" concerning flash phone outputs in the respondent's apartment and the cell phone that he claimed was in his possession. As stated, the trial court viewed the police's failure to ask for the respondent's mobile phone outputs and location, and its "disregard" of the flash device in the respondent's apartment, as an "incomprehensible investigative failure" (p. 13 of the judgment).
Here, too, I do not see things eye to eye with the trial court.
The output of flash calls from the respondent's apartment is dated 20 July 1999, i.e., three days after the respondent's arrest. The trial court concluded that the output reached the police shortly thereafter, but it is not clear whether it was following the request of the police (since there is no such request in the investigation file) or after the respondent's family submitted it to the police on its own initiative. From the transcript of the conversations, it appears that on the day the offense was committed, a call left the respondent's home to the home of the Perach camper at 17:23, and another call immediately afterwards to the college where the respondent studied.
In retrospect, it can be said that this is consistent with the respondent's final version, according to which he stayed at the camper's home from about 5:30 p.m. However, in real time, the respondent's positive version, which was supported by the Perach report that he filled out himself, was that he was at the camper's home between 15:30 and 19:30, which allegedly enabled him to be present at the scene of the incident at the time the offense was committed. In these circumstances, the determination that the interrogators should have issued a call output, and erred in the fact that from the moment they had it in their hands, they "ignored" it, in my opinion, is lacking in retrospective wisdom. Not only was the output of the calls not intended to "clean" the respondent, on the contrary. The output contradicted the respondent's alibi claim that he was at the camper's house between 15:30 and 19:30, and this was noted by Officer Sweid in his testimony (p. 233 of the transcript). I will note that these words of Officer Sweid were criticized by the trial court, which expressed surprise as to how he had lost his memory of the telephone call that left the respondent's home about 44 minutes after the sexual assault of the minor, and why in his opinion this conversation was irrelevant. As for myself, I am of the opinion that the conversation that took place from the respondent's home 44 minutes after the incident is indeed irrelevant in this respect that it cannot be attributed at all to the respondent, who lived in the building where the sexual assault was carried out against the minor.