One day after the IDF prosecution appealed to the Military Appeals Court to stiffen the sentence of the Hebron shooter from 18 months in prison to between 36-60 months in prison, Elor Azaria’s defense team produced an email alleging that the IDF’s chief lawyer threatened such a move if Azaria appealed his manslaughter conviction.
The revelation came from an email on February 27 from former Azaria lawyer Eyal Besserglick, who resigned protesting Azaria’s decision to appeal his conviction, to Azaria’s remaining current lawyer Yoram Sheftel.
In the email, Besserglick recounts that the night before he had met with Military Advocate General Brig. Gen. Sharon Afek and that Afek had told him that if Azaria did not appeal his conviction, that Afek would not seek to stiffen his sentence and would even be open to more speedily eliminate any permanent criminal record.
Following the discussion, Besserglick and Azaria’s other former lawyer, Ilan Katz, quit the case, while Sheftel filed an appeal anyway.
Sheftel produced the email to the Military Appeals Court asking it to shoot down the IDF prosecution’s appeal, and claiming the email as proof that the IDF prosecution’s appeal had improper motivations.
Azaria was sentenced in February for killing suspected Palestinian terrorist Abdel Fatah al-Sharif on March 24, 2015, as he lay nearly motionless on the ground, around 10 minutes after Sharif had allegedly attacked two Israeli soldiers.
In its appeal, the IDF prosecution declared that the 18 month jail sentence from the lower IDF trial court “was not commensurate with the [Hebron shooter’s] actions…and the grave circumstances of the incident, substantially departed from accepted punishment standards in being overly lenient….and did not send the IDF’s soldiers and the broader society the proper ethical message.”
From the outset, the IDF prosecution noted that even the lower trial court had been divided with two judges voting for the lighter 18 month sentence and one judge voting for a 30-60 month sentence.
It cited the dissenting trial court judge who wrote that the punishment given did provide sufficient respect for the sacredness of human life “and that is even in regard to this man who was a criminal and who did not engender too much sympathy.”
Further, the appeal argues that Azaria cannot seek too much leniency when the lower court ruled that he had lied in his testimony about the incident.
In fact, the IDF prosecution said that the leniency that the majority of the lower court gave to Azaria was completely contradictory to its harsh one-sided findings against the Hebron shooter in its verdict convicting him.
Also, it said that its request of a 36-60 month jail sentence had already granted Azaria leniency for the special operational circumstances that his killing of Sharif took place in – without which it would have requested an even longer jail sentence.
At a press conference last week after filing the defense appeal, Azaria’s father, Charlie, said that the IDF was “trying to scare us, but we will not give up.”
Charlie was referring to the meeting last Sunday between Azaria’s former defense and Afek.
Charlie, and Elor’s only remaining lawyer, Yoram Sheftel, already claimed at the time that Afek tried to intimidate the family and prevent the filing of an appeal, threatening that the IDF itself would file a counter-appeal seeking a stiffer jail sentence.
The IDF at the time rejected this interpretation of the meeting, while refusing to discuss the actual content of the meeting – though in the end it has now appealed to give Azaria a stiffer sentence.
Katz and Besserglick also rejected Charlie Azaria’s and Sheftel’s claims. They said that they had opposed an appeal based on a realistic professional legal assessment, weighing the potential costs and benefits.
It is not unusual for the state or IDF prosecution to file a counter-appeal if a defendant appeals, and negotiations over those scenarios are commonplace, with prosecutors justifying the negotiations on the grounds that they believe they would win on appeal, and may only decline to appeal out of mercy and to save additional litigation time and energy.
Azaria’s appeal seemed focused on overturning the lower IDF trial court’s decision that Azaria had essentially incriminated himself by confessing to two different IDF personnel that he had killed Palestinian terrorist Sharif out of revenge for Sharif stabbing his friend 10 minutes earlier.
Azaria’s case has split the country, with most politicians calling for him to be pardoned.
But Azaria cannot seek a pardon until he exhausts his rights to appeal, starting with the IDF Appeals Court and possibly going up to the High Court of Justice.
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