C.     Prosecutions Resulting in Eminently Inadequate Sentences:   

According to the Amended Indictment against him, to which he eventually pleaded guilty, on September 30, 1988, at about 10 am, Levinger was a passenger in a car, along with four family members. In the center of Hebron, a stone was thrown at the car, which was driven by his son, shattering the front windshield.  Levinger’s son drove to an Israeli army checkpoint, where Levinger reported the incident to the soldiers, asked them to send a patrol and waited next to the parked car for the patrol to arrive. As they waited, stones were thrown at the checkpoint by several groups of youths, both north and south of the checkpoint. Levinger pulled out a 9mm Baretta pistol and fired several shots in the air. The stone throwing from the north stopped and Levinger turned toward the south and advanced downhill.

Khaled Salah, a 42 year-old merchant, was standing by the window outside his shoe store with a client, Ibrahim Bali, to whom he was showing shoes. A group of youngsters about 50 meters to Levinger’s south threw stones at him and he opened fire in the direction of the shops and crowded sidewalks. His arm extended in front of him, Levinger fired from a range of 15-20 meters at Salah’s shop, killing Salah and wounding Bali. Levinger then advanced down the sidewalk, overturning crates of fruits and vegetables in the Palestinian market and demanding that the merchants close their shops.

Levinger was arrested, interrogated and released on bail. In April 1989, he was indicted on charges of manslaughter, causing serious bodily injury and causing malicious damage. His trial began on May 22, 1989, in Jerusalem District Court. Levinger pleaded not guilty to all the charges. On May 1, 1990, following a plea bargain with the Jerusalem District Attorney’s Office, Levinger was convicted of negligent homicide, causing serious bodily injury in extenuating circumstances, and causing malicious damage.

Negligent homicide is the lowest of the three levels of homicide contained in the Israeli Penal Code, after murder and manslaughter. There is a huge disparity in the maximum sentence allowable for each crime: life imprisonment for murder, 20 years for manslaughter, three years for negligent homicide. There is clearly also a difference in the moral stigma attached to each crime. Consequently, Levinger was able to tell the press that he had been “convicted for a minor charge of not taking caution while shooting… The whole charge against me is based on the fact that I did not shoot accurately while I was in danger.”114

The plea bargain offered to Levinger raises several questions, most important being why was the charge downgraded to negligent homicide, when the facts in the Amended Indictment, to which Levinger pled guilty, suggest that he had committed manslaughter? Under the Israeli Penal Code, manslaughter can be established by proving gross negligence, recklessness or indifference to another’s safety, (i.e., that the defendant knew, but disregarded, the danger). Furthermore “[k]nowledge of the danger can be shown to have existed from the totality of circumstances that were proved.”115   To establish that a defendant had the requisite mental state for manslaughter, all that must be shown is that he was “aware of the danger to the life or body of  others that was to be expected from his behavior… If the defendant disregarded… another person’s safety and not necessarily his life, recklessness of a sufficient degree is found to exist.”116 The difference between the mens rea required for conviction of negligent homicide and that required for a manslaughter conviction lies in the defendant’s consciousness of the possible damage that his actions might cause. A person who acts recklessly sees the risk, but is indifferent to it, whereas a person who acts negligently is not aware of the risk, even though “a reasonable person could, in the circumstances have been aware of it.”117

According to the Amended Indictment, Levinger shot in an uncontrolled manner “toward the shops and the sidewalks on both sides of the street, where passer-bys were air. He then fired two shots “on a flat trajectory at houses located some 80 meters from where he stood.”125 Fifteen year old Masalem Bin Jalal Hana Ibrahim Musaleh was sitting on his enclosed porch, with his family, watching television. When they heard the shots, they all rushed into the house. One of Moscowitz’s bullets went through the kitchen window and struck Ibrahim in the head. He died in the hospital.

While it is unclear from the record whether Moscowitz could have driven around the barrier, the fact that he continued his trip after the shooting makes it unlikely that his way was blocked. Even if it was, he simply could have turned his car around and left the way he had come. present.”  Opening fire on a crowded public street is, by definition, a dangerous act, which indicates “gross negligence.” It is not simple negligence. The fact that Levinger first fired in the air after he had been stoned shows that he was aware of the danger his shooting posed. In addition, Levinger testified at trial that he was well trained in the use of firearms, so he must have been aware of the danger caused by shooting with arm extended towards passer-bys. At the very least, his actions showed recklessness, or indifference to the consequences, the mental element required for a manslaughter conviction. 118

Moreover, the indifference to the lives and safety of Palestinians reflected in Levinger’s actions was consistent with his past criminal behavior (he had seven prior convictions for attacking Palestinians and their property), as well as in his public statements. Shortly after the shooting, for example, Levinger stated at a press conference: “Regarding the actual deed… the State’s Attorney knows that I am innocent and that I did not have the privilege of killing that Arab. Not that I may not have wanted to kill him or that he did not deserve to die, but I did not have the privilege of killing that Arab.” 119

The contradiction between the facts of the case and the plea bargain was clear at sentencing, when the prosecutor argued: “The defendant admitted committing the offense… This was not an unintentional act. The defendant chose to fire in the manner that he did.”120   As the Israeli Supreme Court has ruled, it is the “unintentional aspect” that distinguishes negligence from recklessness: “Negligence and recklessness are substantially different: one is unintentional behavior, the other is knowingly advancing toward the danger.”121

In addition to questions raised concerning the decision to downgrade the charge against Levinger, there are serious questions concerning the State Attorney’s position on Levinger’s sentence. Despite his description of the gravity of Levinger’s acts and the fact that negligent homicide carries a maximum sentence of three years, the prosecution asked that Levinger be sentenced to only 18 months in prison (and an additional suspended sentence). 

District Court Judge Shalom Brenner imposed an even shorter sentence of 12 months, seven months of which were suspended, explaining: “The defendant is a prominent individual and the father of eleven children. His primary concern and care, for some 20 years, has been the interest of the public he leads.” 122 This sentence was clearly not intended to deter either Levinger or others who might have similar disregard for the value of Palestinian life. Judge Brenner did, however, deny Levinger’s request to serve his sentence doing community service.

Although Levinger, who had an extensive prior criminal record,123 was given an even lighter sentence than the prosecution had requested, the State’s Attorney did not appeal the sentence. Levinger was granted a two-week delay before beginning to serve his sentence, so that he could arrange his personal affairs. On May 14, 1990, he entered Eyal Prison. Levinger was released on August 14, 1990, after serving three months of his five months sentence, a third of the sentence having been reduced for good behavior. His followers celebrated his release.124

1.      Boaz Moscowitz:

According to the Amended Complaint to which he pleaded guilty, on February 18, 1991 at about 6:30 PM, Boaz Moscowitz was driving in his car in the West Bank. At the entrance to Beit Sahour, a Palestinian village, he encountered a barrier of stones blocking the road in which he thought he saw a suspicious-looking object.  Moscowitz, who was alone, got out of his car, carrying his M-16 rifle and fired a few shots in the

Eyewitness affidavits taken by Israeli lawyers Avraham Gal and Yosef Levy indicate that the incident was more serious than apparent from the Amended Indictment. According to these affidavits, Moscowitz stopped his vehicle next to a pile of stones, got out, fired two shots in the air and then removed the stones with his foot. After clearing the way, he took aim at the houses with his rifle, firing one shot at the lighted window in Salah’s house. He fired about six shots, in single-shot mode and, except for the first two shots, seemed to be aiming at specific targets.126 Having served 18 months in the Israeli army, Moscowitz could be presumed to know the risk entailed by flat-trajectory firing.

Moscowitz was originally indicted for manslaughter, but the charge was downgraded in a plea bargain to negligent homicide. According to Judge Ruth Orr: “The prosecution does not argue that the defendant intended to kill. This is apparently the reason it agreed to downgrade the charge.”127 However, a manslaughter conviction clearly does not require proof of intent to kill. “It is enough to foresee concrete physical harm (which ends in death).”128 Shooting at a residence that is clearly occupied, without being in serious danger, indicates a gross disregard of reasonable caution, all that is required in Israel for a manslaughter conviction. That Moscowitz had the required mental state of recklessness or indifference to the consequences of shooting in a populated area is apparent from the facts to which he pled guilty. It is therefore difficult to understand why, here again, the prosecution agreed to downgrade the charge to negligent homicide in a prima facie manslaughter case.

Equally hard to understand is the fact that the State’s Attorney agreed, as part of the plea bargain, to request a sentence not to exceed seven months in prison, a punishment that expresses total disregard of the value of Palestinian life and one unlikely to deter Boaz or others from similar acts of violence against Palestinians.

Judge Orr sentenced Moscowitz to five months of community service in the computer department of Hadassah Hospital and 18 months suspended sentence. In imposing sentence, she stated that “defendant did not shoot to maim and certainly not to kill,”129 not bothering to explain why, then, Moscowitz had aimed at houses which were clearly occupied.  Justifying the sentence imposed, Judge Orr referred specifically to the Levinger precedent, expressing the belief that Levinger’s crime had been more serious, because he had opened fire in daylight, with soldiers present at the scene and he shot at close range on a busy street. Moscowitz, on the other hand, had been alone, in the dark, and had fired from a considerable distance.130    The judge concluded: “[I]t is impossible to prevent a person completely from opening fire if he feels threatened.”131