A Synopsis of Doe v. Israel Police Car Racing (ACR 404/13)

By Dori Pinto

Translated by Orly Rachmilovitz

On April 15, 2015, the Supreme Court (by panel of former President Grunis, President Naor, Deputy President Rubinstein, and Justices Joubran, Hayut, Melcer, and Hendel) decided in favor of the Petitioner in the further hearing on the issue of the responsibility of a participant in a car race for the deaths of other racers. The Court reversed the Petitioner’s conviction of manslaughter and upheld the District Court’s decision that the appropriate offence for conviction was endangerment of a person’s life on a public highway. The full text of the opinions (in Hebrew) can be found here.

This is an important decision which clearly addresses the need to exercise caution and proportionality when the offense of manslaughter is concerned. It was a complex and ever-changing case that required extensive thought and effort over quite a few years.

The Petitioner was represented by Public Defenders Nochi Politis and Professor Miriam Gur-Aryeh.

The facts underlying the case revolve around a car race that took place on a main road in Jerusalem late one night in 2008. The defendant, then a 17-year-old minor, and two young adults with whom he worked the night shift as a waiter at an event venue raced each other driving. The two adults rode in one car, and spectators stood at the finish line. After two “rounds” ended inconclusively, a third “round” took place during which the adult driver lost control of the car and crashed into a brick wall. Both adults were killed instantly.

The minor was indicted for manslaughter in the Jerusalem District Court for Minors. After an evidentiary procedure before Judge Solberg, the minor was acquitted on the manslaughter charge but convicted of endangering a person’s life on a public highway. The minor was represented in the District Court by Public Defenders Politis and Zecharia Schenkolewski.

The State appealed the acquittal, and the defense appealed the sentence of imprisonment. The Supreme Court (CA 9647/10), in a majority decision by Justices Arbel and Rubinstein, ruled in favor of the State, convicted the minor of manslaughter, and added four months to his sentence. The dissent by Justice Hendel would have found in favor of the defense and stated “there was no legal connection [between the Respondent’s conduct and the two men’s deaths].” The Respondent was again represented by Politis.

This ruling was challenged in a petition for a further hearing. The petition argued that the decision in the appeal set a new and harsh precedent that broadened the scope of criminal liability for manslaughter, relying on tests from the negligence context rather than the criminal context. This precedent also compromised the constitutional principle of autonomy as it mistakenly analogized co-commitment and co-performance. For purposes of the additional review Professor Gur-Aryeh joined the Public Defender’s Office in the representation.

As mentioned earlier, in a 6-1 decision over the dissent of Deputy President Rubinstein, the Supreme Court ruled in favor of the Petitioner, reversed the first panel’s decision to convict of manslaughter, and restored the original conviction for endangerment of a person’s life on a public highway. The primary opinion was written by former President Grunis, who said the following about the need to “erect a stop sign” before broadening the manslaughter offense:

Recall, there was no physical contact between the two vehicles before the crash with the lamppost and the brick wall that caused the death of the two adults who were in the car at the time. Could the moral stain that attaches to a person who stabs or assaults another be at all compared to that which attaches to the other driver who was indicted for manslaughter?!  The Israeli offense of manslaughter developed over the years to such an extent that it currently covers an extremely wide range of cases. It appears it is time to erect a stop sign, and maybe even a sign that requires, rather than permits, a U-turn in this context. In my opinion, when the case at hand is examined through a wide lens, there was no place to convict the petitioner of manslaughter. And when examining the case, as should be done, through the lens of legal causation, the same conclusion is appropriate. Were we to accept that the petitioner foresaw the possibility of a deadly result to the race, it still cannot be said that he was required to foresee that result. Still, the facts as revealed certainly justify the Petitioner’s conviction of endangering a person’s life on a public highway, under section 332(2) of the Penal Law.