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Monday, April 18, 2016
Trial in Afghan Woman’s Public Death Gave an Illusion of Due Process
By Alissa J. Rubin
KABUL, Afghanistan — Farkhunda had one chance to escape the mob that wanted to kill her. Two Afghan police officers pulled her onto the roof of a low shed, above the angry crowd.
But then the enraged men below her picked up poles and planks of wood, and hit at her until she lost her grip and tumbled down.
Her face bloodied, she struggled to stand. Holding her hands to her hair, she looked horrified to find that her attackers had yanked off her black hijab as she fell. The mob closed in, kicking and jumping on her slight frame.
The tormented final hours of Farkhunda Malikzada, a 27-year-old aspiring student of Islam who was accused of burning a Quran in a Muslim shrine, shocked Afghans across the country. That is because many of her killers filmed one another beating her and posted clips of her broken body on social media. Hundreds of other men watched, holding their phones aloft to try to get a glimpse of the violence, but never making a move to intervene. Those standing by included several police officers.
Unlike so many abuses against Afghan women that unfold in private, this killing in March prompted a national outcry. For Farkhunda had not burned a Quran. Instead, an investigation found, she had confronted men who were themselves dishonoring the shrine by trafficking in amulets and, more clandestinely, Viagra and condoms.
At first, the trial and convictions that followed seemed a victory in the long struggle to give Afghan women their due in a court of law. But a deeper look suggests otherwise. The fortuneteller who several investigators believe set the events in motion was found not guilty on appeal. The shrine’s custodian, who concocted the false charge of Quran burning and incited the mob, had his death sentence commuted. Police officers who failed to send help and others who stood by received slaps on the wrist, at most. Some attackers identifiable in the videos avoided capture altogether. Afghan lawyers and human rights advocates agree that most of the accused did not receive fair trials. Farkhunda’s family, fearing reprisals and worried that the killers would not be held accountable, fled the country.
Farkhunda’s death and the legal system’s response call into question more than a decade of Western efforts in Afghanistan to instill a rule of law and improve the status of women. The United States alone has spent more than $1 billion to train lawyers and judges and to improve legal protections for women; European countries have provided tens of millions more.
But like so many other Western attempts to remake Afghanistan, the efforts have foundered, according to Afghan and Western lawyers and officials. Afghan society has resisted more than 150 years of such endeavors by outsiders, from the British to the Russians to the Americans. This remains a country where ties of kinship and clan trump justice, and where the money brought by the West has made corruption into a way of life. The rule-of-law programs were often designed in ignorance of Afghan legal norms, international and Afghan lawyers say. And Western efforts to lift women’s legal status provoked fierce resentment from powerful religious figures and many ordinary Afghans.
Yet Afghan women most need the legal system to defend them: They are largely powerless without the support of male family members, and it is usually family members who abuse them.
“Where is the justice?” asked Mujibullah Malikzada, Farkhunda’s elder brother, as he sat in a sparsely furnished apartment in Tajikistan. “In my Islamic country, a girl was disrespectfully, dishonorably lynched and burned, and what has happened? We have left our home. They never caught all the people. What are we to do?”
As a last resort, Farkhunda’s family has appealed to the Afghan Supreme Court, which has wide power to impose new sentences or order a new trial. The decision is pending.
“If she gets justice, all women in Afghanistan who were harmed or killed or abused get justice,” said Leena Alam, an Afghan television actress who found herself joining hundreds of women at Farkhunda’s funeral, defying tradition by carrying the coffin. “If she doesn’t, then all these years of the international community being here, all the support they gave, all the money, this whole war, means nothing. It all went to waste.”
Farkhunda first visited the Shah-Do Shamshira shrine — named for a foreign warrior who is said to have helped bring Islam to Afghanistan — four weeks before her death.
It was a Wednesday, women’s day at the shrine, when men are not allowed. The women commiserate about their lives. They visit the fortuneteller to buy amulets to help them get pregnant, find a husband or have male children. Known as tawiz, the amulets usually consist of writings on a small piece of paper that a woman can pin to her body or keep in a pocket.
Farkhunda was appalled at the way the women’s superstitions were being exploited, her brother Mujibullah recalled. She confronted the custodian, Zainuddin, and the fortuneteller, Mohammad Omran, saying: “You are abusing the women. You are charging them money for something that is not Islamic, that is not religious.”
As the atmosphere at the shrine became tense, Mujibullah said, “The custodian said to Farkhunda: ‘Who the hell are you? Who are you to say these things? Get lost.’ ”
The Malikzadas are an educated family. Farkhunda’s father, Mohammad Nader Malikzada, 72, worked for nearly 40 years as the lead engineer for Afghanistan’s Public Health Ministry, keeping its medical technology, such as it was, running. Mujibullah had a job at the Finance Ministry, and a second brother was an engineer.
Farkhunda, one of eight sisters, was academically inclined. The girls were either graduates of or students at universities or teachers’ colleges. Several were still single in their 20s, unusual for Afghan women. The family did not patronize places like the Shah-Do Shamshira shrine, which was known for attracting the local riffraff as well as pilgrims.
Farkhunda turned out to be right: There was something amiss at the shrine. Investigators from the police and the National Directorate of Security, the Afghan intelligence service, learned later that the fortuneteller, almost certainly with the assistance of the custodian, was trafficking in Viagra and condoms, said Shahla Farid, a member of the investigating committee set up by President Ashraf Ghani after the murder. Viagra is popular and easily available in Afghanistan. Some men see it as an aphrodisiac; others as a remedy if they are nervous on their wedding night.
The investigators also found pregnancy test strips and sweet-smelling body wash in the fortuneteller’s bathroom, suggesting that women might have used it. Ms. Farid and police investigators said it was possible that the fortuneteller moonlighted as a pimp.
The last thing the fortuneteller wanted was a young woman, fired with religious faith, disturbing his means of making a living.
On March 19, the last day of her life, Farkhunda returned to the shrine. After lecturing the women about the uselessness of the amulets, she gathered up some used ones and may have set them on fire in a trash can, said Ms. Farid, who is also a law professor at Kabul University.
“The custodian, Zainuddin, was illiterate, and he took the burnt papers and added to them some old pages of a burnt Quran, and that’s what he showed people outside the mosque as proof that she had burned the Quran,” Ms. Farid said.
That is a charge almost guaranteed to bring a violent reaction in Afghanistan, where even the rumor of a Quran burning can bring hundreds into the streets, calling for blood.
Muhammad Naeem, who sells pigeon feed across the road from the shrine, said he had heard the custodian calling out to people walking by: “A woman burned the Quran. I don’t know if this one is sick or mentally disturbed, but what kind of Muslim are you? Go and defend your Quran.”
It was about 4 o’clock, time for the afternoon prayer. The streets were full, and a crowd quickly gathered. Cellphone videos captured the first moments of the argument.
“Why did you burn it?” a man shouted.
As Farkhunda insisted she had not, another man shouted, “The Americans sent you.”
She responded, “Which Americans?”
He said, “Stop talking or I will punch your mouth.”
Mr. Naeem said that a police officer had tried to lead Farkhunda away, but that, mindful of Afghan custom as well as strict Islamic teachings, she had asked the officer to bring a policewoman. The crowd broke through. In cellphone recordings, more than one person can be heard shouting, “Kill her!”
“Then she fell down on the ground and the people tried to beat her and pummel her, and the police would try to help her up, and then the people from the other side would push her down,” Mr. Naeem recalled. “They were like kids playing with a sack of flour on the floor.”
In the videos, Farkhunda seems at first to be screaming in pain from the kicks, but then her body convulses under the blows, and soon, she stops moving at all. Even when the mob pulls her into the street and gets a car to run over her, and she is dragged 300 feet, the police stand by.
By then, she was little more than a clothed mass of blood and bones. Yet still more people came to beat her. One of the most fervent was a young man, Mohammad Yaqoub, who worked at an eyeglasses shop. He heard the crowd as Farkhunda was dragged behind the car and rushed out, eager to join.
Eight months later, neatly dressed with a small beard and mustache, Mr. Yaqoub hardly looked like someone capable of violence. Yet in the videos, he is so caught up in the moment that he has a terrifying ferocity.
“People were saying, ‘If someone doesn’t hit her, he is an infidel.’ That was when I got emotional and hit her twice,” he said in an interview at Pul-i-Charkhi prison, just east of Kabul. “My third punch hit the road, and my hand got injured.”
After going back to his shop and patching up his hand, he heard the men outside still shouting and said he felt drawn back. The men had dragged Farkhunda’s body to the riverbank, and Mr. Yaqoub looked for heavy rocks to drop on her. One was so large, he could barely lift it, he said.
Mr. Yaqoub was hardly an illiterate day laborer. He had completed 11th grade and, when interviewed in prison, said he was 18. He explained his fury by saying, “The Quran is like our honor: It is our personal honor and the honor of the prophet.”
As Mr. Yaqoub milled with the crowd, other men set Farkhunda on fire, using their own scarves as fuel because her clothes were so soaked with blood, they would not light.
In the middle of the mayhem, someone found Farkhunda’s phone and called her father. He, his wife and Farkhunda’s brother Mujibullah drove to the police station. They had no word of her fate until Gen. Abdul Rahman Rahimi, Kabul’s chief of police, broke the news.
“It is proved that she burned the Quran,” he told Farkhunda’s stunned parents, who knew she was deeply religious and planned to study theology at Kabul University. General Rahimi also informed them that he had told an Afghan television station that Farkhunda was mentally ill, in an attempt to calm an angry public.
It was true that Farkhunda had been treated for mental illness. Its severity is unclear, but details given to the Afghan Independent Human Rights Commission and other investigators indicated that she had gone through several difficult periods — including one in which she mostly stayed in bed and said she feared praying because she might make a mistake, according to her mother. She was put on medication, which helped for a time, her mother said, according to the Human Rights Commission report.
General Rahimi told Farkhunda’s father that the police had failed to protect her and advised him to leave Kabul for his own safety. Months later, her brother Mujibullah recalled his despair.
“I felt the sky had touched the earth and I was between the two, being shattered into pieces,” he said. “I thought I am in some other world. Someone is telling me that a girl who loved the Quran, who would die for the Quran, had been killed, murdered, for burning the Quran.
“I couldn’t believe it could be our Farkhunda.”
Within two days of the killing, the Ministry of Hajj and Religious Affairs announced that Farkhunda had been innocent. Soon, she was transformed from a person into a cause. Video clips of her death were broadcast on Afghan television, prompting shame among many citizens.
Swelling numbers of young women, joined by some young men, gathered spontaneously at the shrine and held candlelight vigils. They formed a “Justice for Farkhunda” organization. They marched, demonstrated and demanded that her killers be brought to trial.
Most extraordinary, women rebelled against the custom of staying away from funerals, and hundreds gathered to carry and escort her coffin.
Ms. Alam, the Afghan actress, said she had felt compelled to go to the cemetery on the day of Farkhunda’s burial.
“Her body was brought to her grave by women and buried by women,” she said. “We took all our shawls and scarves and knotted them together and held them on each side, and then lowered the coffin into the grave. And I remember I had a little cut from the wood from the coffin, and I didn’t want that cut to heal.”
Investigation and Trial
The case posed two sometimes conflicting challenges for the Afghan legal system: satisfying public pressure for retribution while making sure the trial was perceived as fair.
Mr. Ghani himself pressed for action, declaring, “We are not going to allow mob justice.” Ms. Alam played Farkhunda in a re-enactment of the killing held just before the trial began.
The circle of those culpable was wide. But the degrees of responsibility varied considerably and ultimately confounded the prosecutors, who charged only 30 civilians, 28 of them with the same crimes: murder and burning. Investigators believed that the fortuneteller, whose business was threatened, had incited the custodian of the shrine to accuse Farkhunda. The fortuneteller himself was not present the day she was killed, yet he was charged with her murder.
Two or three police officers seem to have tried to help Farkhunda, but others who arrived later appeared to be overwhelmed by the mob. Officers called on to send help claimed that reinforcements had not arrived because the police pickup trucks had no fuel and because their radios had not been working. The mob was huge, and it was never established at what point in the beating, dragging and burning Farkhunda actually died.
The police, acting on the orders of the Interior Affairs Ministry, ultimately detained more than 50 people, 49 of whom — including 19 police officers — stood trial.
Yet some who appeared guilty based on video evidence avoided capture or charges. They included the driver of the car that ran over Farkhunda and a man wearing a sweatshirt with the number six on it, whom the videos showed repeatedly jumping on her body. Also involved was a well-known local figure, Habib Deh Afghanan, who trained as a wrestler and was at the shrine during the beating, according to witnesses.
A senior police investigator in Kabul acknowledged that the police had failed to capture all of those responsible. He estimated that three or four key suspects had fled Kabul; it was unclear if they had political connections and therefore had been tipped off, or if some had been detained and then released. None of the provincial police forces had the will or the clout to arrest them, said the investigator, who asked not to be identified because the appeals process is still underway. The case became politicized, he added, with intense pressure to make arrests to show that the government was taking a stand.
“Everyone tried to use this case for their political leverage,” the investigator said. “Some used it as a way to attack the police chief, some to attack the government; others used it, under the guise of ‘civil society,’ to undermine the role of spiritual leaders or Islamic scholars. So all of that made our work difficult.”
If some of the guilty were spared, the legal system also appeared to entrap some of the innocent. Some of those arrested were later shown not to have even been physically present during the killing. And Afghan defense lawyers described multiple failures in protecting the rights of the accused, including their right to counsel.
Zaki Ayoubi, an idealistic lawyer who had worked for a Western rule-of-law organization, had great hopes for changing the legal system. He began to worry about the lack of attention to appointing counsel for the accused. He turned to friends from university and from Western legal workshops and began to recruit them.
The American notion of defense lawyers does not exist in Afghanistan, where defense lawyers traditionally played the role of middleman between the accused and the prosecutors and judge. Until as recently as 2008, the few pro bono defense lawyers worked directly for the Ministry of Justice, which did little to give defendants confidence in them.
Gradually, that is beginning to change, in part because of one of the more successful parts of the American rule-of-law programs, which helped create a bench of defense lawyers within the Justice Ministry and outside of it.
Mr. Ayoubi recognized early that even if he could find defense lawyers, the trial would be heavily politicized. Mr. Ghani continued speaking out. The country’s chief executive, Abdullah Abdullah, had visited Farkhunda’s family to offer his condolences. These moves clearly signaled to the judiciary that it needed to find people guilty.
The judge appointed to preside over the trial was Safiullah Mujadidi, a man who could be trusted to get the results leaders wanted. He was well known for his 2014 ruling in the case of seven men accused of raping four married women in a rural area of Kabul Province. In that case, Hamid Karzai, then the president, asserted publicly even before the trial that he would approve a death sentence. The judge sentenced five of the men to death even though they testified that they had confessed under torture. The men were quickly executed.
In Farkhunda’s case, Judge Mujadidi again moved quickly. The prosecutors delivered their completed file to the judges on April 27, and the trial began just five days later. It was not clear whether the judges had even had time to review the more than 4,000 pages of material, according to international and Afghan lawyers who closely followed the case.
When the trial opened, fewer than seven of the 49 accused had retained defense lawyers. None of those lawyers were notified of the date or time of the trial, several of them said, and only three or four were present at all during the proceedings. Few, if any, were given access to the documents compiled by the prosecution until the trial started, so they were unable to prepare a defense of their clients, the lawyers said.
Judge Mujadidi, who has since been appointed as a counselor at the Supreme Court, said in an interview that he had attended training sessions provided by several American-funded rule-of-law programs and a German one.
In his view, he said, “The decision in the primary court was according to the law, which brought justice.”
He argued that criticisms about the lack of defense counsel and scant time for preparation were motivated by defense lawyers’ greed. “All they think of is their business, not the people and the good of others,” he said. “They even overcharge their clients to make more money.”
Judge Mujadidi added that every defendant had been asked if he wanted a lawyer. “All of them said they could better defend themselves and they know what to say in court, so there was no need for the defense lawyers,” he said.
Abdul Masood Khorami, a lawyer representing Mr. Yaqoub, the eyeglasses shop worker, did not even know the trial had begun until he received a call from Mr. Yaqoub’s father, who was watching the proceedings on television. When Mr. Khorami rushed to the courtroom, he found that the trial was being run as if it were a terrorism case rather than a murder case. Heavily armed guards wearing dark glasses stood behind the judges.
It took most of two days for the prosecutor to finish reading the indictment. Then the three-judge panel took a day to deliberate privately. On the third day, they delivered a verdict.
Each defendant or his lawyer was allowed to speak for scarcely five minutes after the prosecutor read the evidence against the defendant. Many of the statements were pushed to the trial’s last day and were unlikely to have been taken into consideration by the judges, who had deliberated the day before and announced the verdict shortly after the defendants finished speaking.
In any case, few of the defendants were given a chance to speak beyond perfunctory responses to questions, and neither were most of their lawyers. One exception was Mr. Khorami, who had learned about the importance of objections in one of the Western-run rule-of-law courses he had taken. He understood that it was a critical moment under Afghan law as well: Unless an issue is raised in the trial court, it cannot be raised in an appeal. He objected to a statement that his client, Mr. Yaqoub, was an adult, claiming that he could prove he was a minor. Minors are not subject to the death penalty under Afghan law.
Judge Mujadidi said in an interview that he did not believe Mr. Khorami. “He forged his client’s tazkera to prove him underage,” he said, referring to an Afghan identity document, “but the forensic medicine test and our knowledge said he was a grown adult with a full beard.”
The judge ignored Mr. Khorami’s objection, and Mr. Yaqoub was one of four sentenced to death. The others were Zainuddin, the shrine’s custodian; Sharaf Baghlani, a onetime employee of the Afghan intelligence service who had boasted on Facebook about his role in Farkhunda’s killing; and Abdul Basheer, a driver.
Eight others were found guilty of major roles in Farkhunda’s murder and were each sentenced to 16 years in prison. The other 18 civilian defendants were found not guilty for lack of sufficient evidence. Of the police officers, eight had their cases thrown out, and 11 were given the lightest penalty possible: They were required to continue working in their assigned police districts for one year and to refrain from traveling.
Farkhunda’s case highlighted the limits of the Western rule-of-law effort, but it suggested that there had been at least one significant achievement: Afghans did hold a trial and try to bring people to justice.
However, a full investigation, a trial perceived as fair and sentences based on evidence would have sent a message that Afghans agreed that a lynch mob was unacceptable; that the police and courts could deliver justice; and that victims, even female victims, had rights.
In reality, Afghans were divided about the event and what the punishments should be. Some believed that everyone in the crowd that beat Farkhunda and applauded should be punished; others thought only a few should be. Almost no one had faith in the justice system: In surveys, it is the least trusted Afghan institution.
In the face of competing pressures and beliefs, rumors and corruption, many of the legal lessons painstakingly taught by Western-funded lawyers were simply ignored.
That is all the more surprising because almost everyone involved in the case had some exposure to rule-of-law training.
Since 2005, according to the Special Inspector General for Afghanistan Reconstruction, the United States has spent more than $1 billion to train prosecutors, defense lawyers and judges in such areas as legal procedure, questioning witnesses and computerizing case loads. It has also underwritten programs encouraging transparency, justice for women, changes to detention practices and a stronger informal justice system, which dominates in rural areas.
Every defense lawyer interviewed for this article had attended workshops or legal courses funded in part by the State Department’s Bureau of International Narcotics and Law Enforcement Affairs; by the United States Agency for International Development; by the Justice Department; by the European Union Police Mission in Afghanistan; or by individual countries such as Canada, Germany or Sweden. Many prosecutors, particularly the elite ones used for Farkhunda’s case, have also attended such programs, according to American and international trainers. Although most of the judges in the case did not respond to requests for interviews, several who were not involved said it was common for judges to have received some Western training.
But Afghan and Western observers alike said the efforts had been hobbled by ignorance of Afghan norms and, in some cases, by arrogance. Some trainers tutored Afghans about how to pick jurors, but judges decide cases in Afghanistan. Some also brought young lawyers in to teach older Afghans in a society where age is a symbol of authority and knowledge. The intricacies of law were often literally lost in translation from English to Dari, according to two international lawyers who have spent years working in Afghanistan.
An effort to rewrite the criminal procedure code, rather than translate it so the West could use it as a starting point, captured the occasional absurdities of the process.
“At the time, it was the Italians who were in charge of the rule of law, so they wrote one close to the Italian code,” said a Western lawyer who has spent years in Afghanistan, and who asked not to be named because he is not allowed to speak for his organization. “Why would they write a new one when the Afghans had a criminal procedure code that everyone knew?”
As with efforts to engineer gender equality, many Western ideals ran head-on into entrenched Afghan beliefs. For example, one lawyer recalled a two-week course in representing clients who bring sexual assault cases. But despite Western efforts, few sexual assault cases ever come to trial in Afghanistan because of family pressures and a well-founded fear of reprisal.
Siavash Rahbari, an American lawyer who speaks fluent Dari and works on rule-of-law issues for the Asia Foundation, said the West fundamentally misunderstood Afghanistan’s needs. The experts thought they were helping to rebuild a system in transition from the Taliban period to a more secular one. Rather, Afghans are still trying to determine what kind of system they want. The Afghan system still draws on Islamic law, as well as its own legal code, which has roots in both the German and Egyptian systems.
Defense lawyers and prosecutors study law and political science in college, but almost all judges study theology and Shariah, Islamic law. So when the two meet in a courtroom, they come with completely different frames of reference. Often, they are talking past each other. And judges, who are the backbone of the system, are often resistant to change.
Afghan lawyers said the Western designers of the program had not paid enough attention to Afghans’ deference to age and experience.
“An American lawyer is standing before a class of Afghan lawyers or judges in their 40s and 50s, and the American lawyer is in his 30s,” said Sayed Mohammad Saeeq Shajjan, an Afghan defense lawyer with a Harvard degree who returned to his country to practice law. “Everyone has his pride, and they say, ‘Why is this young kid teaching me?’ ”
Mr. Shajjan also faulted a lack of follow-up.
“At the end of the one-month training, they have a ceremony, get a certificate and photos, but who follows up and sees if they learned something or not?” he asked. “No one is doing that, and it’s a big mistake.”
Nor did the Western training reckon with the pervasiveness of corruption, a scourge in the justice system as in so much else in Afghanistan.
“When your client is a poor guy, you are asked to pay a bribe or he spends 16 years in jail,” said Muhammad Aziz Sofizada, a defense lawyer who represented two clients in Farkhunda’s case, including one who was sentenced to 16 years in prison. “What are you supposed to do? In this country, without spending money, you can’t get anything.”
But the trial also showed that some ideas had taken root, particularly among a growing cadre of young, Western-influenced defense lawyers. Michael J. Fannon, who was the chief of party for the International Development Law Organization and worked in Afghanistan for six years, said that when he left in 2014, the number of defense lawyers had swelled to about 2,000, from 200 in 2008.
Two defense lawyers said they had drawn on their training in making legal arguments and registering objections to prosecutors, but they were in the minority. And several who were not directly involved in the trial, and so were freer to speak about it, said they believed the system had failed in Farkhunda’s case.
“So many didn’t have a defense lawyer — there were almost 50 people tried,” Mr. Shajjan said. “You cannot try such a huge number of defendants, and defendants who don’t have lawyers,” in such a short period. “You need to give the defendants a chance to speak. Everyone was given two minutes.”
Human rights lawyers also argued that the legal system needed to send a clear signal that it is unacceptable to stand by and watch as a mob beats someone to death. “All those watching her being killed should have been given a sentence,” said Shamsullah Ahmadzai, the head of the Afghan Independent Human Rights Commission office for the Kabul region. “When someone is being killed, it is not a play. It is not a movie.”
While supporters of Farkhunda celebrated the trial-court verdict, defense lawyers rallied on behalf of their clients. But unlike the televised trial, the appeal in late June took place behind closed doors, according to lawyers involved in the case and others who managed to slip into the hearing.
That secrecy is against Afghan rules of criminal procedure — although there is a loophole that allows judges not to announce a proceeding to the news media as long as no one is stopped from attending. The defendants and their lawyers were called in for discussions with the judges in groups, depending on their sentences.
Lawyers for those condemned to death or long prison sentences pointed out that no one had bothered to determine when Farkhunda died. Under Afghan law, the penalty is far lighter for desecrating a dead body than it is for murder, so Mr. Sofizada, Mr. Khorami and other lawyers drilled down on that point.
“Who is the guy who hit the first blow? Who is the one whose blow killed her?” asked Mr. Sofizada, who represented a shopkeeper named Mohmand. “If it’s violence, who is responsible for this violence? The guy who started the episode and encouraged the people to hit her? The guy chanting slogans who encouraged the people? Was it a blow from a stick that killed her? A stone? Was it that she was burned, or was it the car running over her?”
Mr. Yaqoub said he had only desecrated a corpse. “I knew she was dead because she was not moving,” he said. Asked if Farkhunda might have been unconscious, but not dead, he did not reply.
Mr. Yaqoub’s lawyer, Mr. Khorami, used his session with the appellate judges to try to convince them that Mr. Yaqoub had been wrongly tried as an adult. He produced a tazkera, the Afghan identity document, saying that his client had been 17 at the time of the killing. Although the trial-court judge believed this document had been forged, the appeals panel deemed Mr. Yaqoub underage and commuted his death sentence to 10 years in prison.
The argument that there was no evidence on who had struck the blow that killed Farkhunda made sense to both the appellate court and the Supreme Court, according to people close to the courts. “It’s very difficult to determine responsibility if you don’t know what killed her,” a person close to the Supreme Court said, speaking on the condition of anonymity because court employees are not allowed to talk to the news media.
So the judges commuted the other three death sentences to 20-year prison terms.
They also reviewed the evidence that the fortuneteller was not at the shrine when Farkhunda was killed and ruled that he was not guilty because he had not been present. They exonerated a ninth police officer, so that in the end, only 10 were disciplined at all.
When the appeals court’s ruling became public in July, Farkhunda’s family and many women’s groups were stunned to find out that they had been given no chance to make their case. Farkhunda’s brother Mujibullah said the new verdict was a travesty.
“You saw that boy who hit her with that big stone, and the court said he’s underage,” he said. “Even if he is underage, he knows how to hit, but he doesn’t know how to answer for his actions.”
Female lawyers who followed the case said the verdict showed Afghanistan’s cultural bias against women. “There was some discrimination against women,” said Najla Raheel, a young lawyer who takes cases on behalf of women, even when they cannot pay, and who was appointed by Mr. Ghani to lead the team representing Farkhunda’s family in the appeal to the Supreme Court. “Some government officials didn’t want 49 men punished for the death of one woman.”
Soon after the new verdict, Farkhunda’s family asked Mr. Ghani’s wife, Rula, who had taken an interest in the case, to help them get temporary visas to leave the country. They felt the appeals verdict signaled that the public did not support them.
In the meantime, the legal team appointed by Mr. Ghani decided there had been so many flaws in the case that the only fair course was to ask the Supreme Court to order a retrial, according to Ms. Raheel and Mr. Ayoubi, who had also joined the legal team representing Farkhunda’s family.
The Road Ahead
The request for a retrial was made in August, and the Supreme Court has not yet announced its decision. The court, which has great leeway to increase, reduce or throw out penalties, often simply confirms appellate decisions or sends them back to the appeals court for review. None of the lawyers interviewed for this article could recall a time when the court had sent a case back for a complete retrial.
Farkhunda’s family is beginning to worry that there will never be a decision and that she is being forgotten.
Five miles north of the Shah-Do Shamshira shrine, a sprawling graveyard covers a slope in Chaikhana, a northern neighborhood of Kabul. The rocky earth is brown and gray. The graves are gray, too, modest piles of small stones fenced off from one another. The ground is littered with empty water bottles and small pink or blue plastic bags blowing in the late autumn wind.
In the middle of the cemetery, far from the main road, lies Farkhunda Malikzada. Her grave is large but half finished. The coffin has been sunk into a concrete slab facing west, toward Mecca. At each of the four corners is an unfinished concrete column with metal spikes sticking out. A flag with her ghostly pale face, wrapped in a black hijab so not a hair is visible, hangs over the grave. It is hard even to make out her features. She is fading into memory.
On a recent Friday, the only people near the grave were four neighborhood children who use the cemetery as a playground.
The children all knew her name. Ishaq, 6, volunteered: “Her name is Farkhunda. She burned the Quran, so she was punished and she was lynched.”
Ahmad Shakib and Jawad Sukhanyar contributed reporting.