Whatever happens to Avigdor Liberman in the
Belarus Ambassador Affair, his
situation could have been a lot worse – had his case not been proceeded by the
general acquittal of former prime minister Ehud Olmert.
Prior to the
general Olmert acquittals – though he was still convicted of breach of trust –
Liberman probably would have been indicted for millions of shekels of money
laundering, fraud and other crimes that could have led to serious jail time if
convicted.
While it is not impossible that Liberman could get jail time
in the current case, the most likely worst-case scenarios if he is convicted – a
big “if” which is still a long way off – are having to sit out of politics for
seven years and some significant community service.
But besides the
possibility of being entirely acquitted, there where Liberman could get convicted only of breach of public trust or where the
courts could give him as lenient a sentence as Olmert received.
In
contrast, if Liberman had been indicted and convicted in the “main” case against
him that was closed, seven years out of politics would have been virtually
guaranteed and the real question would have been prison time, and how
much.
Prior to the Olmert case, head prosecutor Moshe Lador and those
before him had not won every recent case against public officials, but they had
a strong record for convicting former president Moshe Katsav, former ministers
Arye Deri, Tzachi Hanegbi and Avraham Hirschenson, among others.
The
trend in the prosecution was not only to seek cases they would be able to win in
a traditional sense, but to break ground aggressively in new areas using fresh
strategies and reinterpretations of old laws to strike at areas of corruption
that had escaped public scrutiny.
Lador wore the banner of “one law for
all” with pride.
Now, at least in the eyes of much of the general public,
he is in disgrace.
His judgment and motives are questioned.
The
debate is not about whether the prosecution failed in the Olmert case, but
dissecting the reasons for its failure.
Calls have strengthened for
oversight of the prosecutor’s office for wasting public resources on failed
cases. And Lador has lost the trust of his boss, Attorney-General Yehuda
Weinstein.
Lador approached the Olmert case, and for that matter the
Holyland trial and the main Liberman case, with the idea that if on balance, he
had compelling evidence against a defendant and could prove that the defendant’s
alibi made no sense, the case should be filed and he would win.
It is not
a crazy idea and it had worked numerous times in other high profile cases –
especially when the crime was only financial and the state would subtly nudge
the courts to accept a slightly lower standard of proof, since they weren’t
accusing a defendant of a serious crime with the possibility of a long prison
sentence like rape or murder.
But that is not what the standard of proof
is in criminal cases. Murder, rape or breach of public trust: the standard is
beyond a reasonable doubt.
The balance of evidence is not enough.
Disproving the other side’s alibi is not enough. The state has to prove its case
overwhelmingly, regardless of whether there is not a solid
alibi.
Weinstein’s decision to close the main Liberman case is not just a
statement about the particular case, but is also returning the state to that
fundamental rule in general.
Lador thought that Moshe Talansky – the main
witness in the Jerusalem corruption trial – and S.D. – the main witness in the
Holyland trial whose name is under a gag order – would be sufficient against
Olmert because of the damaging testimony they had against him.
But he
ignored the question of whether the witnesses would have other credibility
problems that would undermine their otherwise damaging testimony.
Lador
wanted to do the same with “Daniella,” the main witness against Liberman who
allegedly had tons of out-of-court testimony against Liberman, but then changed
her tune and said she didn’t remember anything.
The head prosecutor came
up with the creative idea that her contradiction was so abrupt and absurd that
it strengthened her initial testimony. The logic is actually quite appealing and
would likely work in a civil case, but it simply does not speak to criminal law
principles.
Learning the lessons of the Olmert general acquittal,
Weinstein’s decision did not simply remove a major case against Liberman, it
ended an era of pushing the envelope on the standard of proof and trying to use
aggressive rationales to convict in corruption cases.
This is not even
all that speculative, as Weinstein took the unusual measure of admitting in the
conclusion of his 95-page opinion closing the Liberman case that he had
commissioned a special report on the impact of the Olmert case.
Closing
the Liberman case was an announcement that the Olmert effect has ended an era.