Glaring injustice

Anyone with even cursory familiarity with the legal system realizes that justice and fairness are by no means identical with encoded strictures.

By
January 21, 2012 22:45
3 minute read.
DETECTIVE SHAHAR MIZRAHI was stunned when his sentence for shooting dead car thief Mahmud Gnayem was

shahar mizrahi 311. (photo credit: Channel 10)

 
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Justice Minister Yaakov Neeman has signed a formal request for a presidential pardon for imprisoned police office Shahar Mizrahi. Barring any unexpected developments, Mizrahi ought to be a free man soon.

But this isn’t the classic happy ending. It merely mitigates what in the popular perception looms as a glaring injustice.

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Mizrahi, a former Hadera police detective, has already served 17 months, more than the 15 months to which he was originally sentenced in 2009 for the manslaughter shooting of Baka al-Gharbiyeh recidivist car thief Mahmoud Ghanayem.

In 2006, Mizrahi apprehended Ghanayem in the act, was attacked with a screwdriver and pushed down.

Immobilized by an injured ankle, Mizrahi shot at Ghanayem as he sped at him in the stolen vehicle, likely trying to run him over.

Mizrahi, claiming self-defense, appealed – but to his horror the Supreme Court decided in 2010 to double his sentence. This became a cause célèbre throughout the police force.

Anyone with even cursory familiarity with the legal system realizes that justice and fairness are by no means identical with encoded strictures. What the law stipulates doesn’t necessarily mesh with what common sense dictates.



A truly wise judiciary strives to bridge the gap between the average citizen’s intuition and legal instructions. Our courts, however, seem bent on accentuating their reputation for supercilious insensitivity.

Supreme Court President Dorit Beinisch decreed that “the district court erred by giving more weight to Mizrahi’s personal circumstances and not enough to the value of the life that Mizrahi cut short. It also didn’t consider sufficiently the wider deterrent ramifications.”

Superficially, this was reminiscent of the Shai Dromi case in which the Negev rancher shot a Beduin rustler.

Yet Mizrahi was no vigilante taking the law into his own hands. Therefore, the deterrent of which Beinisch spoke appeared aimed at law-enforcement personnel.

“With little effort,” she averred, “Mizrahi could have avoided the danger he felt and shot at the car tires or the deceased’s legs.”

However, Judge Menahem Finkelstein, who presided over Mizrahi’s initial trial, argued that the incident evolved so rapidly that there was no time for careful evaluation, especially as the shooting occurred seconds after Ghanayem attacked the policeman with his screwdriver.

Beinisch may have had the dry language of the law on her side. The problem is the application of said law.

A court that doesn’t factor in extenuating circumstances is remiss. Yet here, second-guessing downplayed Mizrahi’s subjective sense of acute danger. Given the situation he was caught in, he had every rational reason to conclude that his life was on the line.

Judges may rule otherwise but they shouldn’t have dismissed the instincts of a man on the ground facing an oncoming car. They had to be aware he wasn’t operating in air-conditioned chambers, with hours to weigh pros and cons, calculate trajectories and mull over the thief’s legal standing.

When a ruling, even if pedantically in perfect accord with the letter of the law, violates the law’s spirit and egregiously offends ordinary folks’ notion of justice, it is – to put it mildly – counterproductive. To the layman, the highest court in our land preferred the rights of outlaws to the mission, indeed the very lives, of lawmen.

The case of officer Shlomi Assulin is instructive. He died last summer after nearly five years in deep coma because he was stabbed with a screwdriver by a Beduin car thief he tried to arrest in Rehovot. Assulin didn’t shoot.

A society that seeks to maintain law and order must ask itself who will protect it if the courts refuse to consider the combat-like circumstances under which officers sometimes must make split-second life-and-death calls.

Policemen are anyway overworked and underpaid. If they also feel thrown to the legal dogs, few are likely to make an effort or take chances. Fewer yet will enlist in the service. The consequences for society collectively and for each of us individually could be dire.

It remains to be hoped that President Shimon Peres will speedily pardon Mizrahi. Any additional day he spends behind bars will further erode the motivation of his fellow policemen.

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