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
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
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.
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.
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
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
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
But that just is not the standard for a criminal
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
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
In the rare instances that courts reverse lower courts, it is
usually on a real legal issue, not a differing interpretation of the
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
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.
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
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.
was accused of financial crimes that did not physically hurt anyone. Katsav was
accused of multiple rapes, one of the most violent crimes there
Olmert was mostly acquitted. Katsav was convicted
Olmert got leniency from the state’s harsher request of
a sentence of community service. Katsav was trying to get seven years
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.