Dam Bursts at Al Dura Trial
by Nidra Poller
September 20, 2007
Maître Bénédicte Amblard, representing Charles Enderlin and France 2 in their libel suit against Philippe Karsenty (Media Ratings) dropped her pencil and lost her composure when presiding judge Laurence Trébucq, overriding the opinion of the Avocat Général, firmly demanded handover of the 27-minute unedited film shot by Talal Abu Rahmeh at Netzarim Junction in the Gaza Strip on September 30, 2000. The Maginot Line of France 2 collapsed then and there. From here on in, anything is possible.
Karsenty is appealing his October 2006 conviction for defamation in a case brought by state-owned TV channel France 2 and the station's Mideast correspondent, Charles Enderlin. In the incriminated Media-Ratings press release, Karsenty had called for the immediate dismissal of Enderlin and then news director Arlette Chabot for their respective roles in broadcasting and upholding a hoax-the famous news report of the "death" of 12 year-old Mohammed al Dura, "target of gunfire from the Israeli position."
While the court of first resort had granted Karsenty's right to question the authenticity of the news report, it followed the plaintiff's arguments and found him guilty of bad faith and publication of unsubstantiated accusations based on a single source (Metula News Agency). Karsenty appealed.
Things looked grim for Karsenty as the hearing began. There was a technical problem with the large screen he had been authorized to bring into the courtroom (which is normally equipped with a tiny outmoded TV). And the judge sternly rejected his proposed projection of a didactic montage of the disputed al Dura images.
After a brief recess during which the technical problem was solved, the hearing began with a brief interrogation on Karsenty's professional and financial situation, followed by a rather awkward résumé-by the second judge, designated as the "advisor"- of the initial case and conviction Karsenty's counsel, Maître Marc Lévy, interjects a request for an expertise on the 27-minutes of unedited footage, which had been viewed by three journalists-Jeambar, Leconte, and Rosenzweig-who testified that they consisted of 24 minutes of staged scenes, with no images of the al Dura boy and his father and no trace of the boy's "death throes" that Enderlin claimed had been edited out because it was "unbearable."
Readers should know that "discovery," as understood in the U.S., does not exist in the French system This is how France 2 could accuse Karsenty of making unfounded accusations without facing the obligation to produce the raw footage that might substantiate them.
The judge immediately grasps the importance of the raw footage and asks "Do we have the film?" Maître Amblard replies, supremely self-confident: "Of course not." She seems to assume that the Court will bow to the higher authority of France 2. Maître Lévy argues with subdued indignation that it is unacceptable to refuse to produce the outtakes, which are composed for 90% of staged scenes and 10% of "al Dura."
The Avocat Général concludes, on the basis of jurisprudence, that the Appelate court does not need to examine the raw footage because the court of first resort had ruled on the case without seeing it. Maître Amblard seizes this favorable wind to embark on a typical Enderlin argument-just because 90% of the film is composed of staged scenes, it doesn't mean that the remaining 10% is also staged. How could it be? It is the death of a child!
The judge calls a brief recess to deliberate on the request; the judges decide to examine further evidence and leave the request for expertise in abeyance. A setback for France 2, an opportunity for Karsenty.
The first exhibit is set in motion-the infamous news report of the death of the Palestinian child. The judge rejects Karsenty's request to be allowed to interrupt the projection and explain, frame by frame, why the images do not correspond with the voice-over commentary. Things get prickly. Karsenty's counsel fades into the background, the judge insists that she and her associates can see for themselves without Karsenty's comments, he overrides the judge, the mood is tense but slightly comical.
Will she cut the projection and throw him out of court? Is he upsetting his apple cart? For anyone who has worked on the al Dura affair, it's agonizing to hear Karsenty go through the tedious details while the judge, like any innocent observer, makes the same objections we've heard a thousand times. The shooting angle, the Israeli position, no blood, the wall intact after 45 minutes of alleged gunfire, the Reuters cameraman right next to them ...The judge objects, obstructs, interrupts, but keeps watching, keeps listening, follows intelligently, assimilates large doses of information as Karsenty projects news reports from the days following the incident. Charles Enderlin and Talal Abu Rahmeh stick to their story, embellish it with details that have withstood examination for seven years but may soon be turned against them.
The projection continues with a news broadcast in which Enderlin, in all his glory as "objective reporter," trashes the army investigation led by General Yom-Tov Samia... and ends by quoting from Haaretz: "The Israeli army shot itself in the foot."
The Judge turns to Maître Amblard: "Are there any staged scenes in any of these news reports we've just viewed?"
Maître Amblard falters. She tries to refocus attention on the al-Dura report. But the judge insists. "Are there any staged scenes in the 27 minutes of raw footage that might have appeared in the news reports we've just watched?"
Maitre Amblard fumbles. Backs up a step as if she had been pushed. And whispers a most unconvincing "No."
The court recesses. (Even though an informed source has already whispered the result in my ear, I am gripped with suspense.) The judges return and report their decision on the question in suspense. The expertise. The raw footage. They want it. They will not go forward until they have seen it. Maître Amblard drops her pencil. She is sincerely stunned.
Finally she mutters, "If the court orders my client to produce the footage...of course...but I don't know where it is."
Maître Lévy leaps forward and places a letter in the judge's hands. It's Charles Enderlin's response to the Israeli army request for handover of the raw footage. Enderlin explains that it is in Paris, in the hands of the France 2 legal service.
One more brief recess as Maître Amblard attempts-in vain- to reach a France 2 official who can confirm the availability of the material.
If the footage is not turned over voluntarily by the 3rd of October, the court will issue a formal request. The next hearing is scheduled for November 14th ... to view the said footage. A relay hearing is scheduled for January 16, and the case will be heard in full on the 27th of February.
Philippe Karsenty has scored a significant victory. The al Dura report has been questioned ever since it was first broadcast seven years ago. The 27-minutes of raw footage have served as a protective shield for Charles Enderlin and France 2-the "proof" that was never presented. Even after reputable journalists had viewed the footage and testified to its nature, it retained its magical quality and was used to discredit anyone who questioned the veracity of the al Dura report.
Today, a French Appelate Court destroyed that magic. The raw footage is forced to enter the sphere of reality, where it will be judged by rational standards.
The outcome remains uncertain.
Will France 2 discover a way to slip out of this injunction? Will the court temper its demand? Will the footage be produced, viewed, and dismissed as irrelevant?
Will President Sarkozy exert his authority and imperatively request state-owned France 2 to come forward, produce the evidence and, eventually, dismiss collaborators who have participated in this hoax...as requested in the incriminated Media Ratings release?
And, finally, when will the French media tear off their false faces and admit what they know about the al Dura affair?
Despite an AP release and extensive international coverage over the past few weeks, no mainstream media reporters attended today's hearing. They missed an early warning that the rules of the game may well be changing.