The Facts, the Law and the Judgment of Nochum Korman
by B. Rabinovitz
February 7, 2001
Bold headlines appeared throughout the media when the ruling in the case of Nochum Korman, formerly head of security in Hadar Beitar, was handed down two weeks ago. Under a banner headline in Ma'ariv reading, "Life of an Arab Boy -- 6 Months Community Service" was a legal article from the pen of well-known leftist legal analyst, Moshe Negbi, with the headline: "Condoning Bloodshed."
The competition also ran a banner headline: "Sentenced to Community Work for Child- Killing." The accompanying article also including legal analysis stating, "the lightness of the sentence is very uncommon." The electronic media -- without exception -- suspended coverage of the elections, terrorist attacks and political negotiations to bring full coverage of Korman's sentencing, and particularly the harsh reactions by Knesset members from Left and Arab factions along with spokesmen from extreme Left movements, including Gush Shalom and B'Tzelem.
Criticism of the legal system and the prosecution was almost unprecedented in its stridency, and if chareidi newspapers or spokesmen had dared to voice such statements about an issue that concerned them, these same critics from the Left would have jumped to their feet to complain about "contempt of court" and in all likelihood complaints would also have been filed with the police.
Negbi, for example, wrote, "The prosecution's consent makes the intolerable lightness of the sentence a far greater disgrace. Unfortunately we have already grown accustomed to clemency toward criminals responsible for shedding blood . . . the prosecution is forgiven of Palestinian bloodshed."
Knesset member Ahmad Tibi said, "This is a disgrace for the entire court system and ratifies the price it sets for the life of an Arab child."
Tamar Gozanski of Hadash said the Israeli court system has demonstrated once again that it makes "racist distinctions in cases of blood spilled." Naomi Hazan of Meretz made the following comment: "This is a mark of shame for the Israeli court system."
The extreme left movement Gush Shalom, ran a paid announcement reading, "This is an entirely cynical ruling by a court that doesn't even feel a need to make pretensions of decency." Meanwhile B'Tzelem issued a statement saying, "This is a ridiculous sentence that sends a message that Palestinian life is free for the taking."
Does the court indeed show disdain for Arab lives? Is this really a ridiculous sentence for killing a child?
If anyone is to blame, it is the High Court for its ruling handed down recently. But first a summary of the event is in order.
More than four years ago, Nochum Korman, then head of security in the settlement of Hadar Beitar, received a report of rock-throwing from the town of Hussan, on the opposite side of the road leading to the chareidi community of Beitar Illit. Korman set off immediately in pursuit of the band of boys throwing rocks across the road, as his job requires.
Throughout the court proceedings, various versions of what actually took place in the field were presented. The prosecution claimed that Korman hit the victim, a Palestinian child named Hilmi Shousha, and kicked him in the neck, causing fatal injuries from which he later died at the hospital.
The defense, however, claims that Korman did not touch the child at all, and just shouted at him. Shousha fell to the ground, and suffered a fatal blow to the head. The case received a lot of attention, and the media emphasized how it seemed that the blood of Arab children is cheap, as the security officer beat the child to death.
When the case was first tried, Jerusalem District Court Judge Ruth Orr acquitted Korman of charges of manslaughter. She found that the evidence presented by the prosecution, even if it was all accepted at face value, did not establish beyond a reasonable doubt that Korman killed the boy. Thus she did not even examine the challenges of the defense which were many. Nonetheless the prosecution appealed the acquittal to the High Court.
At this point the affair becomes more serious. The appeal was heard by Judges D. Beinish, D. Dorner and A. Procaccia (whose respective views on settlers in Judea, Samaria and Gaza as well as on the chareidi sector have long been known), and two months ago they decided to accept the appeal and to convict Korman of manslaughter.
The High Court sent the case back to the District Court for sentencing. Orr accepted the plea-bargaining agreement signed between the prosecution and Korman and his attorney Yair Golan, which was based on Orr's suggestion.
According to the agreement, Korman was sentenced to six months' community service, after taking into account the eight months of time he already served and other personal reasons. In addition he was sentenced a 70,000-shekel fine to be paid to the boy's family.
It was this point that led to the attack against the court and the prosecution. Senior officials at the State Attorney's Office dismissed critics' charges outright. The director of the criminal division of the State Attorney's Office, Attorney Nava Ben-Or, said, "The sentence agreed upon in the plea-bargaining is reasonable, in light of the eight months Korman has already spent in jail and the fact that four years have already gone by."
Immediately following the release of the ruling, Justice Minister Yossi Beilin, known for his great affection for Palestinians, called State Attorney Edna Arbel, and then claimed that Arbel told him, "We shouldn't have interfered with the sentencing."
The disclosure of the conversation between Beilin and Arbel caused great embarrassment in the upper ranks of the State Attorney's Office, with the director of the criminal division adhering to her defense of the plea-bargaining agreement and dismissing criticism lodged against her.
Based on this state of affairs, Yossi Beilin was forced to send a "corrective" announcement to the media stating that, considering the circumstances of the case, "The State Attorney's Office views the ruling as a correct and balanced legal outcome."
In a legal analysis of the plea-bargaining agreement, Attorney Ariel Bendor of Haifa University also said, "The High Court determined that not only did Korman not want to kill the child, but in fact he was not even indifferent to the possibility of his death, and hoped the child would not die, tried to revive him and called for help . . . Korman has been convicted of the very lightest form of manslaughter."
What exactly transpired at the High Court? Yated Ne'eman received all of the documents submitted to the court, and it appears that the High Court, presiding as the court of appeals, arrived at its verdict without reading the file or the District Court's, instead relying on fabricated information. As a result, the state accepted the appeal, and Nochum Korman was convicted of manslaughter.
The following is a list of excerpts from the High Court ruling, matched with facts taken from the case file itself that refute the lies and distortions which the High Court relied on, and which require no further explanation. The first issue relates to Nochum Korman's account of the event, as recorded in the ruling:
"On the day of the incident, in the afternoon, while the child was still alive, the defendant was requested by military authorities to return to Hussan. At the junction he met Staff Sergeant Major Shalom Amar who asked him to describe what had taken place. At the scene of the incident, experts from the police's criminal identification division were also on standby. The defendant recounted his version of the incident to Amar, who recorded his account shortly thereafter. Amar's report read as follows:
"[The defendant] told me that he heard that rocks had been thrown at Israeli vehicles from the hilltop. He arrived at the new road in the patrol jeep and saw youths on the hilltop. At first he drove a bit lower, and then descended and entered the town from its flank. When he approached the rock-wielding children, they fled the scene. He got out of the jeep and chased after one of the children, and when he reached him and shouted out, the child replied, 'No, no,' and then passed out suddenly. He administered first aid, lifting his legs, and when this did not help, local residents joined him and proceeded to perform pulmonary resuscitation, and then evacuated the child, calling an ambulance on the way, which continued administering treatment and took the child to the hospital."
"The defendant even retraced the pursuit route with Amar and indicated the scene of the incident. "
Paragraph 7 of Justice Dorner's account of the events continues, "Only during his court testimony did the defendant relate his account of the fall, a backwards fall, which was submitted as an explanation for the injuries. But by that stage the defendant was already informed of the injuries found in the autopsy and was already aware of the possible explanations offered by the pathologist."
"Presenting a fall as an explanation for the injuries is banal and does not depend on the pathologist's expert opinion. However this case is unusual. For the defendant did not tell about a fall in his statements to Sergeant Major Amar [which were made] when he had no knowledge of the injuries sustained, which were found, as we said, only at the autopsy."
In Paragraph 11, the ruling states, "The circumstantial evidence in this case, centering around the autopsy findings and the defendant's description of his encounter with the child as recorded by Amar, have maximal weight."
The "Fall" Paragraph
Paragraph 13 states, "The account of the fall caused by stumbling was first introduced by the defendant in his testimony before the district court. This account is very different from the account given to Amar in which the defendant distinctly did not attribute the child's loss of consciousness to stumbling of any sort. That account was given shortly after the incident, at a time when the child was still alive and the defendant had not seen any signs of injury on the victim's body.
"Furthermore, the account related to Amar, according to which, while standing in front of him, the child `suddenly fainted,' clearly negates the account of the fall since, according to the account given to Amar, the child lost consciousness suddenly (emphasis of the Court) without any discernible reason, while talking with the defendant. But in his court testimony, the defendant said he witnessed the process (emphasis of the Court) of the stumble and fall which led to the child's loss of consciousness."
Justice Beinish makes additions of her own on this matter. In Paragraph 2 she writes: " . . . Lastly, but no less importantly, attention has to be given to the fact that the defendant made no mention whatsoever of the fall in the initial field investigation conducted on the day of the incident. In the police interrogation the defendant chose to exercise his right to remain silent and only in his subsequent court testimony did the defendant first mention his claim that the child stumbled and fell. This account was introduced after internal injuries were found in the neck of the deceased in the autopsy, and after experts offered the possibility of a fall to the ground. In general, those who hold back their version of events damage its credibility and the weight it carries, in the absence of a convincing explanation for their silence. Such an explanation was not offered by the defendant in this case."
The above excerpts were taken from the court ruling. Any reader can clearly see the tremendous importance the court attributed to the fact that in the initial account, Korman made no mention of the fall until his later testimony in court. The court mentioned this point six times throughout the ruling!
Following are a number of excerpts from reports written by police investigators immediately after the incident, indicating that Korman spoke about a fall right away, while the boy was still alive, and not just after he heard about the findings of the pathologist.
A "Slight" Difference
All of the following excerpts relating to this case were handwritten on the day of the incident by police investigators at the scene. First on the list is the initial excerpt by Detective Amar, which the court quotes. However, the quote of the Court is selective. It ends with the words " . . . and evacuated the child to the hospital." After quoting the material up to that point directly, Justice Dorner took up the narrative in her own words, writing: "The defendant even retraced the path of pursuit with Amar and indicated the scene of the incident."
The quote from the report is brought here in full for the reader to judge for himself. "Nochum led me and identification expert, Benny, over the route he took to reach the town, the site at which he indicated the child's fall."
Note the "slight" difference. It appears to be no accident that Justice Dorner stopped quoting at that point. She wrote that Korman " . . . indicated the scene of the incident," although the original reads, "indicated the child's fall."
But the matter does not end there. Document Tav-4 (a reconstruction of the events done with Professor Hiss), written in Detective Amar's own handwriting, concludes, "At this point I would like to say that on the day of the incident I was here with the suspect in the reconstruction, and this is the place which he indicated to me, and where he claimed the child fell. Hilmi Shousha fell here . . . "
Below are additional quotes taken from notes written by a police officer (in all likelihood Amar) on the day of the incident and inserted into the report: "Based on our investigation, the head of security at Hadar Beitar, Nochum Korman, pursued children throwing stones and the children fled, whereupon he got out of the jeep, caught up to one of the children, and when he shouted at him, the child fell and passed out." The following excerpt is from Officer Ofer's duty log, who also arrived at the scene immediately after the incident took place. It was written by hand on the day of the incident:
"The head of security arrived alone and, he said, he proceeded to chase ten 13-15- year-olds on foot, and one of them fell to the ground, and he took the child who fell."
Distorting the Facts
Additional court testimony demonstrates the fact that Korman claimed early on that the child fell. This in itself is sufficient to call the High Court's ruling into question based on the grounds given in the ruling itself. Perhaps the judges did not read the material contained in the file, but if so it is hard to imagine how such conclusions could be drawn.
Another issue that should be addressed is Paragraph 5 in the ruling, which reads, " . . . the defendant has therefore been found not guilty due to reasonable doubt [that he committed the crime]." The following paragraph continues and begins, "This ruling was appealed by the State."
The High Court, it seems, understood that Korman had been acquitted solely due to the fact that there remained reasonable doubt whether he killed the boy, and the State appealed that acquittal. But was this in fact the case?
The District Court's ruling ends (Clause 187), "In the case before me, the prosecution has not proven the accused to be guilty, and I have not been presented with any reliable evidence that the accused even touched the deceased, let alone reliable evidence that the accused committed the abominable acts attributed to him in the indictment."
Is this "not guilty due to reasonable doubt?" Did the High Court carefully read the ruling on which the appeal was based? Obviously there is a tremendous difference between overturning a previous ruling (changing an earlier ruling of not guilty to guilty) and simply resolving issues which had not been resolved previously (changing a verdict of not guilty due to reasonable doubt to a verdict of guilty). It seems that the High Court understood that the District Court acquitted the accused based only on the presence reasonable doubt, and therefore it took the liberty to find him guilty by resolving those doubts. It seems likely that if the High Court had been aware that he had been completely acquitted, it would not have overturned the District Court's decision.
Two further points emerged from the ruling on the appeal of the verdict of the District Court. In Paragraph 5 the High Court wrote, "The District Court did not address the defense testimony, i.e. the testimony given by the defendant and the pathologists he hired, and only referred to a summary of the statements the defendant made to Sergeant Major Amar." Further, in Paragraph 7, the Court wrote, "On the other hand, the District Court did not accept the testimony of the defendant and his pathologists, and did not rely on them in its ruling."
These statements clearly show that the High Court understood that the District Court was reluctant to use the evidence given by the defendant and the pathologists, and in some way rejected that testimony.
However, in Paragraph 189 of the District Court's ruling, Judge Orr writes the following: "It should be noted that I reached my conclusions based on the Prosecution's testimony, and I did not have to analyze the Defense's testimony at all, i.e. the testimony given by the accused and his pathologists, that certainly support the Defense version of the events and not the Prosecution's version."
Note the ever-so-slight difference here in the ruling of the District Court itself and the way it was described in the ruling of the High Court, and the vast abyss that lies between the words "did not accept" in the ruling of the High Court and the words "did not have to analyze" that appeared in the opinion of Judge Orr.
It is in the space of this abyss that we can understand where the High Court found the "reasonable doubt." Judge Orr found that even according to the evidence of the prosecution, if it were all taken at face value and fully accepted, there remained reasonable doubt if Nochum Korman killed Hilmi Shousha. Therefore, there was no need to go further and evaluate the testimony of the defense (which, as she pointed out, had a version of the events that was certainly more favorable for Mr. Korman) and to decide which version of the events is the true one.
The High Court interpreted the verdict of the District Court to mean that the latter rejected the testimony of the defense and acquitted Korman based on the remaining reasonable doubt. The truth was that the District Court simply ignored the defense since the prosecution had not even argued effectively that a crime had been committed.
It is impossible to believe that the High Court understood the findings of the District Court and then went on to rule as it did. Yet from an understanding of what happened, it is hard to accept that Mr. Korman should have been found guilty at all.
In Paragraph 2 of Justice D. Beinish's additional remarks, she writes, "According to the interim report, at the time it was written, Professor Hiss leaned toward direct blows as the cause of the hemorrhage as opposed to the alternative of a fall, but he was unable to ascertain the cause of the neck injury with a high probability." At other points she also asserts that Professor Hiss tended to think that blows were the cause of the injuries.
Yet in Professor Hiss's report (paragraph 5) he wrote: "It is impossible to determine with a high probability (beyond a reasonable doubt) what was the cause of the neck injury: whether a direct injury -- a blow, or an indirect injury -- a fall."
What was Justice Beinish's source for the assertion that at the time the report was written, "Hiss leaned toward holding Nochum responsible for the injuries?"
In conclusion, we quote part of the report of the testimony of an Arab woman who lives near the scene of the incident and who testified in court: "Fatahiya looked out the window and, at a distance of about four meters, saw a Jew standing and a boy lying on his back on the ground in convulsions, with the accused Jew standing at a distance of about 2.6 meters away from the child [distance demonstrated in court]."
Later she said, "I did not see him hitting the child" (page 52). " . . . I didn't see any contact between the accused and the child" (page 55). Section 39 continues, "She heard the accused shout at the deceased and could not understand what he was saying" - - testimony which matches the account given by Korman according to which he shouted at the deceased, "Why did you throw rocks?"
In the final analysis, if explanations are in order, they should address all of the above discrepancies and distortions. In view of all this it should come as no surprise that the State Attorney eventually realized that what Korman had already been subjected to is more than sufficient, and there is no justification for compelling him to spend even one more day in jail.
Even more broadly, we call upon all the watchdogs of justice: where are you when such a transparent miscarriage of justice takes place, as in the case of Nochum Korman?
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