Why did the state appeal Olmert ruling?

After State Attorney’s Office appeals against the acquittals there is little chance of reversing them.

By YONAH JEREMY BOB
EHUD OLMERT 370 (photo credit: Marc Israel Sellem/The Jerusalem Post)
EHUD OLMERT 370
(photo credit: Marc Israel Sellem/The Jerusalem Post)
The state prosecutor opened fire on the Jerusalem District Court – which largely acquitted former prime minister Ehud Olmert – with a vengeance, in an appeal to the Supreme Court on Wednesday.
Overall, the appeal comes down to the state’s judgment that the lower court agreed with the state on almost the entire narrative of the Rishon Tours Affair and the Talansky Affair, but that at the moment of truth, it just unexplainably could not come to terms with convicting Olmert.
After the Jerusalem District Court exonerated Olmert from most of the crimes he was accused of, there was significant speculation about what the state could have been thinking in bringing such a flimsy train-wreck of a case. Now we know. The appeal lays everything bare.
The state believed it had Olmert nailed in the Rishon Tours case because all of the problematic actions were undertaken by his two closest associates and because his “fingerprints” (as the appeal puts it) were all over the correspondence surrounding the trips which were double-billed.
According to the state, the circumstantial evidence that Olmert must have known about – the rampant years of double-billing for reimbursement of plane flights that added up to over $90,000 – is so strong, that Olmert either knew, or intentionally “shut his eyes” to such an extent that no other conclusion besides a conviction could withstand scrutiny.
The same is true of Talansky, according to the state. The secret safe that Olmert’s long-time friend and associate Uri Messer kept for Olmert, with hundreds of thousands of dollars, stands out too clearly to have existed without Olmert’s knowledge of the fraud he was committing, said the appeal. The court again accepted the state’s version of events about Olmert’s clandestinely receiving large envelopes of cash from his American supporter Moshe Talansky.
In the state’s version of the case, the court manufactured wildly unlikely scenarios to justify a conclusion that it could agree with the state on: poor conduct by Olmert.
However, the Jerusalem District Court was not able to conclude that such conduct was sufficient proof beyond a reasonable doubt.
What is shocking in the appeal is how unwilling the state seems to be to accept the cardinal rule of proving a case “beyond a reasonable doubt.”
Olmert may have committed all of the acts he was accused of, and would have likely lost in a civil fraud case, but “beyond a reasonable doubt” is a high standard.
The state contests this standard with several alternatives, saying that the lower court’s acquittal is “inconsistent with the way normal life works,” “is inconsistent” with its other findings – against Shula Zaken for example – and is an improper conclusion since conclusions “must be based on logical and reasonable factors.”
All of these alternative terms amount to complaining that the lower court should have convicted Olmert based on a standard of the most reasonable conclusion to draw from the evidence.
But that just is not the standard for a criminal conviction.
The state tries to wrap its arguments in phrasing that suggests that the lower court made a “legal error” in its understanding of the criminal standard of “beyond a reasonable doubt.”
But really the state just disagrees with the lower court about how strong the evidence was that it brought in the trial. The lower court found the evidence convincing, but not enough.
It is highly unlikely that the Supreme Court will reverse a panel of three of the most distinguished judges in the Jerusalem District Court, including the district president and the vice president, on an argument by the lower court that it should have been more convinced by the facts than it was.
In the rare instances that courts reverse lower courts, it is usually on a real legal issue, not a differing interpretation of the facts.
But there is some hope for the state.
It is possible that the Supreme Court, thinking about more than just Olmert’s individual case, about the impact on the system – could be persuaded that the case against Olmert is “too big too fail.”
It is more likely that the Supreme Court will draw attention to what the state has ignored: that it was short on smoking gun evidence because it failed to turn any of Olmert’s associates to testify against him and because Talansky was a disaster as a witness with compromised credibility.
The last hope then, that the state could have for claiming some victory and vindication is getting a harsher sentence for Olmert on his conviction for breach of public trust in the Investment Affair.
The court hit the state hard for toppling a prime minister and then only convicting him on other more minor charges that were not even discussed when he was toppled.
It may also hope that the Supreme Court will feel compelled by its ruling regarding former president Moshe Katsav, that political office should not grant a person any special leniency in sentencing, to disregard the lower court’s sympathy for Olmert losing his office and give the former prime minister a harsher sentence.
But this is at most a toss-up. The state pays lip-service to the big differences between Olmert and Katsav.
Yet Olmert was accused of financial crimes that did not physically hurt anyone. Katsav was accused of multiple rapes, one of the most violent crimes there is.
Olmert was mostly acquitted. Katsav was convicted across-theboard.
Olmert got leniency from the state’s harsher request of a sentence of community service. Katsav was trying to get seven years imprisonment reduced.
There are some clever similarities that the state tied together, including that both men were convicted of crimes that were not apparent when they were forced from office, but mostly the cases are noteworthy for how different they are.
However, if the Supreme Court court wants to strike a middle path between the lower court and the state, giving Olmert a harsher sentence may be a way to do that.
The last issue that could be raised on appeal is moral turpitude.
A finding that Olmert’s acts constituted moral turpitude would sideline him from politics for seven years and essentially end his career. The state has not raised the issue, but if Olmert decides to run between now and the hearing, the it is likely to ask the Supreme Court to make a decision.