Hawari defence challenges court competence

The defence accuses the court of bias, the prosecutor demands the death penalty, and the defendant proclaims his innocence. The only thing not in dispute at the Arcadia Mall trial is that a murder took place. Shaden Shehab tries to keep up
The progress of the Arcadia Mall murder trial has been anything but straightforward. Lawyers for 27-year-old Omar El-Hawari, who is accused of stabbing 37-year-old Mahmoud Rawhi to death with a butterfly knife, have made a move that has thrown proceedings into disarray. They have accused the judges of bias, and demanded a retrial.
The trial should have ended this week. Only the summaries of the defence and civil claimants remained before the judges issued their ruling. But matters took a different turn. In a bombshell announcement, the defence team contested the competence of the court on Monday, in effect demanding a retrial before another circuit of the Criminal Court. The reason cited by the defence was the "bias of the three-judge panel and their continued rejection of the demands of the defence in a manner that blocks the path to truth and justice."
Events leading up to the defence's request were fraught with tension. Earlier, prosecutor Essam El-Yamani had demanded death for El-Hawari, "so that society will be purged of his sort." Then, as soon as Monday's hearings began, Salah Suleiman, one of the defence lawyers, stood.
"Your honour, we would like to make some requests," Suleiman told the presiding judge, Galal Ibrahim.
"That is your right," Ibrahim replied.
Suleiman asked that the court produce the knife the prosecution say was used in the fatal stabbing. He argued that the knife bore the surname of a friend of Rawhi, Hisham Namash, and therefore, "may belong" to him.
"The knife bears the name 'Nemr,' not 'Namash,'" responded Ibrahim.
"We would still like to verify what is imprinted on it," answered Suleiman.
Switching tack, Suleiman then asked that a court representative visit the crime scene to determine if the testimonies of the witnesses were accurate. Further pressing the court, he also demanded the arrest of Rawhi's executive secretary, Mustafa Naguib, and two of Rawhi's friends, Hisham Namash and Mohamed Abu Steit. He argued that witnesses testified that they carried knives and were engaged in a quarrel at the time of the murder.
"If you have finished, we would like to hear the civil claimants' presentation," retorted Ibrahim.
"We would like to know if you accept or reject our requests," replied Suleiman.
"I will not decide now," Judge Ibrahim snapped back.
Suleiman immediately produced a stack of papers. "The defence team is contesting the jurisdiction of this three-judge panel," he read.
There was uproar. An infuriated Ibrahim ordered a 15-minute recess.
During the recess, El-Hawari, from his cage, told the Weekly that, "Rawhi's family knows that I am not the real murderer. One of them, whose name I cannot recall, told me 'Omar, if you do not name the real killer, it is you who will take the blame'." Asked why Rawhi's family wanted him hanged, if they know he is innocent, Omar wept. "I do not know, they should find the real killer," he said, through tears.
Judge Ibrahim returned 15 minutes later. Still seething, but forced to accept the legality of the move, he announced that the court would sit again on 30 May when the defence would submit the required papers for disqualifying the court.
"This is nonsense; they [the defence] want to win time and they know that they do not stand a chance. We have proven that one of the defence witnesses, Karim Abdel-Latif, was in Hurghada when the murder took place," Bahaa Abu Shoqa, lawyer for the civil claimants, told Al-Ahram Weekly. "The request will be denied and hearings will probably resume on 2 June," he added.
The law in these circumstances is clear. After the defence submits its motion documents to the court, the chairman of the Appeals Court will set a date for ruling on it. If he accepts it, another three-judge panel will open a retrial. The appeals court chairman can accept the defence's claim for only two reasons: if he finds "a relation between the victim and one of the judges," or "a tendency by the judges to side with the victim and show a lack of response to ensure that the defence will be able to present their case freely," explained lawyer Fathi Fahim Ahmed to the Weekly. "Such requests are rarely accepted," Ahmed added. So far, the appeals court has preferred to hurry the trial along rather than allow delays. The chairman of the appeals court had earlier decided that a summer recess beginning in June should be ignored and that the trial should continue until the ruling.
Before the drama of the defence's request for a retrial, the accused gave his version of events to the court during a hearing on 26 May. The defence team had requested that El-Hawari speak but not be cross-examined.
"Can I come to the podium?" El-Hawari asked. Ibrahim shook his head. El-Hawari then tried several standing positions, dragging a police officer who was hand-cuffed to him along, before finally facing the three-judge panel.
"I have to be crazy to commit such a crime, which I am not. I am not capable of hitting, let alone killing, anybody. I have never carried any type of weapon through my entire life... I love all people," El-Hawari said. Rawhi's widow reacted by blocking her ears with her hands or reading, under her breath, through a small copy of the Qur'an she kept on her lap.
El-Hawari then told how, after going to various clubs around Cairo, he had ended up at "Upstairs," a club at the World Trade Centre, with his brother Sherif, and Hamada Mamdouh, a friend. "When we went to Upstairs, I found my brother Sherif with his girlfriend, so I sat with an airline pilot. I request that you bring him in as a witness," El-Hawari said. "After staying there for 15 minutes, Hamada urged me to go to Pomodoro and I told the pilot that I would return to Upstairs," El-Hawari continued.
"We arrived at Arcadia at 3:30 or 4:00 am. This is the time when they shut and don't accept newcomers. So how would I have known that Rawhi, God's mercy be upon him, was there at the time? I also know that he has four or five bodyguards."
Suddenly El-Hawari's testimony was interrupted. "Liar... Liar...Liar," Rawhi's widow shouted before standing and heading to the exit. "Open the door," she screamed, on the verge of tears, to waiting policemen.
"Let her out. We should show respect for her feelings," ordered Ibrahim.
El-Hawari continued. "When we entered the restaurant, Hamada Mamdouh chose a table, which was a table away from Rawhi's, God's mercy be upon him. Hamada Mamdouh went to shake hands with him [Rawhi] and I shook hands with Mustafa Naguib [Rawhi's executive secretary]. I knew that Mahmoud [Rawhi] had asked Hamada Mamdouh 'why do you hang out with such kids?' I went to sit at our table and Mustafa Naguib took Hamada Mamdouh outside. Meanwhile, a girl I knew came to my table and sat with me. Suddenly, I found Mahmoud standing in front of me and the girl, staring. The girl asked me 'do you know him?' I said no and asked her the same question. She told me she did not but that he had been chasing after her the whole night. I told her to go and get her purse, so we could go to Upstairs. She went and Mahmoud [Rawhi] said to me 'don't you have any respect for anybody?' I did not answer. Mustafa Naguib then came to me and asked me to apologise to Mahmoud [Rawhi]. I said that I had done nothing wrong. A few seconds later, Mahmoud [Rawhi] came and punched me in the face. He was followed by four or five bodyguards, Abu Steit and Mustafa Naguib. Mustafa Naguib hit me on the head with a bottle of whiskey, making me fall to the ground with my head injured. Every time I tried to get up, I was hit on the head. I crawled for a while, seeing only the feet of a lot of people locked in a fight. When I got away from them, I stood up only to find Mustafa Naguib stabbing at me with a knife. Then I managed to leave. Mustafa Naguib knows who killed Mahmoud [Rawhi] and he knows that one of the bodyguards is the murderer but he is scared to say so because he will get killed if he does."
"I do know the killer, and it is you!" cried Naguib, who had leapt from his seat in the crowd.
"I could never commit such a crime! I am not mad to ruin my future or harm my family!" replied El-Hawari.
Three security men, Gamal Reda, Mohamed Abdel-Wahab, and Mahmoud Abdel-Khaleq supported El-Hawari's story that Mustafa Naguib had a knife. But they also said El-Hawari had one, too. The guards had been outside controlling access to the club. Abdel-Khaleq, who said he was the first to run inside after the fight broke out, said, "I saw Omar [El-Hawari] and Mustafa Naguib fighting each other. Each had a shiny weapon that looked like a knife. Essam Abdel-Aziz was running after Mohamed Abu Steit and people were screaming."
Abdel-Khaleq then said, "A week before the accident, Omar [El-Hawari] had a fight with Mustafa Naguib, and not Mahmoud [Rawhi]. Mahmoud [Rawhi] did not come to the restaurant that day," he added.
The defence's latest move and the further testimonies have blown the possible outcome of the trial wide open.
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