IDF court ruling imminent on Hebron shooter jail sentence

By
July 30, 2017 12:00

If the appeals court upholds the jail sentence, half or more of Israelis are likely to disapprove and politicians may press for a pardon.




Hebron shooter Elor Azaria and his mother, July 2017

Hebron shooter Elor Azaria and his mother heading to court, July 30 2017. (photo credit:ANNA AHRONHEIM)

The IDF Appeals Court is due to rule on Sunday whether Hebron shooter Elor Azaria’s 18-month jail sentence will stick.

Azaria was sentenced in February by an IDF trial court to 18 months in prison for manslaughter when he shot and killed an already wounded and “neutralized” Palestinian gunman, Abdel Fatah al-Sharif, on March 24, 2016.

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If the appeals court upholds the jail sentence, half or more of Israelis are likely to disapprove and politicians may press for a pardon.

There is a chance the court will extend Azaria’s sentence, perhaps to the 48 months sought by IDF prosecutors and supported by one of the three IDF trial court judges.

Elor Azaria is embraced by his mother as his father stands nearby, at the start of is sentencing hearing at a military court in Tel Aviv, Israel February 21, 2017 (Reuters)

The case shook up Prime Minister Benjamin Netanyahu’s coalition by leading to Moshe Ya’alon’s firing as defense minister and Avigdor Liberman’s replacing him, after Ya’alon condemned Azaria while Netanyahu voiced partial support for the shooter.

Some have said this major change had a decisive impact on the recent Temple Mount crisis in which Liberman voted against the IDF recommendation and with Netanyahu to install metal detectors, as police recommended, where Ya’alon likely would have sided with the army. Some say Netanyahu might have removed or not installed the metal detectors if he had faced Ya’alon united with the IDF.

Liberman discussed the impending ruling on Channel 2 on Saturday night.

"This tragedy has gone on for too long. I call on the family, whether satisfied with the decision or not, to remain within the military judicial process," said Liberman. "I would not recommend continuing to appeal to the Supreme Court and the president."

In the 2016 terrorist attack in Hebron’s Tel Rumeida neighborhood, Sharif stabbed another soldier and friend of Azaria’s, and was then shot several times and fell to the ground, nearly motionless.

By the time Azaria arrived around 10 minutes later, other IDF personnel in the area did not view Sharif as a concrete threat, even though some soldiers and many civilians saw him as a potential threat.

If he was not a threat, Azaria’s job as a medic would have been to merely attend to the wounded.

Instead, he was seen in a video that went viral across social media, shooting Sharif in the head, killing him in a seemingly execution- style manner.

IDF Sgt. Elor Azaria was filmed shooting a seemingly incapacitated Palestinian assailant on March 24 2016 in Hebron (Reuters)

Azaria claimed self-defense, saying he was concerned Sharif would attack again with a knife or that he was wearing a concealed explosive vest. However, the IDF trial court rejected all his defenses as being invented after the fact and convicted him based on his original explanations to IDF officers on the ground that he shot Sharif out of revenge.

They pointed to testimony of his commander Maj. Tom Na’aman and, critically, of his soldier friend T.M., who were on the scene and testified that Azaria originally said Sharif needed to be killed out of revenge for stabbing a fellow soldier.

Azaria’s admission, spontaneously, that he killed out of revenge, was uniquely, objectively credible, the court said, adding that he did not mention fear of an explosive device on the spot, but only after the fact.

The court also took the prosecution’s side that Azaria changed his story five times, and found that the final story lacked credibility.

On appeal, Azaria switched his legal defense team from wellknown defense lawyer Ilan Katz and Eyal Besserglick to another well-known defense lawyer, Yoram Sheftel.

Azaria's attorney, Yoram Sheftel holding up a sign depicting a similar incident to his client's (credit: Anna Ahronheim)

Katz and Besserglick, who fought tooth and nail at trial, had advocated accepting the 18-month sentence or cutting a deal with the prosecution, and not to appeal for a possibly slightly reduced sentence.

The Azaria family and Sheftel flat-out rejected any deal with jail time.

SUPPORTERS OF Elor Azaria  take part in a protest. (Reuters)

During the appeal, Sheftel went on the warpath attacking the Military Police as having manufactured Azaria’s confession and as coaching Na’aman into lying and supporting the idea that Azaria had confessed. The defense lawyer supported his allegations regarding Na’aman, noting that in his first interrogation with police, he did not incriminate Azaria – only mentioning Azaria’s confession when prompted by police.

The IDF responded to this that confronting witnesses with other testimonies is standard practice.

Sheftel argued that even if Azaria changed his story five times, that Na’aman and T.M., whose testimony the verdict was based on, had changed their stories nine and 14 times, respectively.

Also, Sheftel argued that Azaria’s confession that he shot Sharif out of revenge never happened because there is no indication of this confession in the many videos of the incident.

Retired District Court judge Col. (res.) Zvi Segel continuously warned Sheftel to move off of most of these arguments, stating that they were attempts to overrule the lower trial court verdict on its factual conclusions, whereas appeals should address only legal misinterpretations of a lower court.

Segel also yelled at Sheftel, “Why didn’t he [Azaria] mention the bomb” to many friends and IDF officers when he spoke to them immediately after the incident.

The judge continued “there is no logic” that Azaria would not talk on the telephone about the bomb with “someone who wants to help him.”

Moreover, Segel said it was meaningless that the video did not pick up Azaria’s confession when it did not pick up many other things, such as when Azaria asked a fellow soldier to take his helmet.

The appeals judges repeatedly interrupted Sheftel, saying he was misquoting the lower court testimony and record to his advantage.

Most strongly, Segel said Azaria had a problem falling on the mercy of the court for a lighter sentence when he “never uttered the simple words ‘I made a mistake.’” IDF Courts President Maj.-Gen. Doron Filis, who presided over the appeal, also struck down Sheftel several times for trying to raise Filis’s own 2016 pretrial decision to free Azaria from closed detention.

Sheftel repeatedly tried to insert Filis’s comments in that 2016 decision that the evidence in the case was inconclusive.

The chief IDF judge rejected these attempts, saying there was no significance to what he wrote at the early pretrial detention stage when he was only presented with a fraction of the evidence that the trial court saw in the full trial.

The IDF prosecution kept its final statements shorter, mostly presenting its win in the lower court and highlighting precedents that could argue for a longer jail sentence.

Although the overall feel from the questions of the five-judge appeals panel signaled that Azaria’s appeal has a weak chance, three of the judges did not say as much and could still vote in his favor.

Still, one never knows when an appeals court will view a trial court as having gone too far in a high profile case.


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