Rule of law: Ehud Olmert steps up to the plate

Seen as a possible challenger to Netanyahu, former PM will take the stand in the Holyland corruption trial for the first time on Sunday in attempt to clear his name.

By YONAH JEREMY BOB
Ehud Olmert after verdict 370 (photo credit: Gali Tibbon/Reuters)
Ehud Olmert after verdict 370
(photo credit: Gali Tibbon/Reuters)
The Holyland trial involving former prime minister Ehud Olmert will reach its climax when he testifies for the first time on Sunday.
His testimony could have a decisive influence on the trial’s ultimate outcome. The trial’s outcome, in turn, could be decisive in determining whether Olmert could return to the political arena with a bang – as one of the few political personalities still viewed as a challenger to Prime Minister Binyamin Netanyahu.
Holyland is Olmert’s second trial.
His first, the Jerusalem corruption trial, ended in July 2012 with his acquittal on the most serious charges. The prosecution appealed, but many expect it to lose.
In the Holyland trial, which began days before the first trial ended, Olmert is accused of accepting over NIS 1.5 million in bribes (out of around NIS 9m. given to public officials in total), either directly or through aides and his brother, Yossi.
This was said to have occurred from around 1993-1999, while Olmert was mayor of Jerusalem, for the purpose of advancing the Holyland real estate project in south Jerusalem and smoothing the way for project heads to overcome zoning and other legal barriers.
The trial has seen many stages since it started in July 2012.
The early days were difficult for Olmert and the other 15 defendants accused of taking bribes and committing fraud.
Shmuel Duchner, who for around eight months of the trial was known only as S.D., had the floor and charged Olmert and the other defendants with a wide range of highly specific charges which he and the prosecution backed up with a mound of documents.
Duchner said the project “could not have happened” without Olmert’s support, obtained through kickbacks, and that Olmert questioned him in detail about the real estate initiative and how he would get “reimbursed” for assisting with approvals.
He said that originally, the project was only approved for building on 25,000 meters of land, while eventually 311,000 meters of land were approved thanks to the graft.
The main state witness also testified that Olmert’s bureau chief, Shula Zaken, in one instance requested emergency assistance to pay a NIS 50,000 debt, to which he responded by giving Olmert’s driver $10,000 that he had on hand, having just returned from abroad.
Duchner also recounted instances in which he said he had given up to NIS 350,000 in funds directly to Zaken, to pay for her jewelry and furniture.
In January, the prosecution strengthened Duchner’s charges regarding bribes he paid to Yossi at Olmert’s request, when it called Morris Talansky to testify that Olmert had similarly convinced him to pay $30,000 to his brother in 2004.
According to the prosecution, this proved Olmert’s manner of operation in getting multiple people – not merely Duchner – to pay him bribes via Yossi.
Then, the prosecution had several rough months during cross-examination of Duchner, in which he was cornered into admitting that some of his allegations against some of the defendants were made up to sweeten the case against them.
The charges against Olmert could have survived this assault, as the prosecution had backed up Duchner’s testimony with external documents.
But another bomb dropped on the case: Duchner admitted not only to concocting some of the allegations, but also to forging some of the documents.
Olmert’s lawyers caught him in a dramatic moment, showing that he had done a messy photocopying job in combining unrelated documents – when they demonstrated that a telephone number in a document did not exist on the date the document was allegedly drafted.
The next sledgehammer to the prosecution’s case was the death of Duchner in March, in surreal fashion fit for a legal thriller, right in the middle of being cross-examined by Olmert’s lawyers (he did not collapse in the court itself, but in between court sessions and before they had finished questioning him). Duchner’s death not only removed the state’s main witness from pushing its case forward, but also potentially gave Olmert’s lawyers the argument that all charges against him, at least those originating with Duchner, should be dropped since they did not have a full and fair opportunity to cross-examine.
This argument, while not necessarily a death sentence for the case, could be based on the idea that you cannot convict a defendant based on testimony unless the witness is cross-examined, giving the defendant a full chance to confront the allegations against him.
But Judge David Rozen may and can decide that enough cross-examination took place or that enough other external evidence exists to convict Olmert. Then in April, the prosecution was openly flirting with dismissing the case, according to the state’s deputy head prosecutor, Shuki Lemburger.
In May, life was again breathed back into the prosecution’s case when Olmert’s wayward brother (testifying via video-conference from the US, where he has been in self-imposed exile since 2004 for NIS 3 million he owes to black market figures) wrecked portions of Olmert’s narrative and built up the credibility of Duchner’s earlier testimony.
The key point around Yossi’s testimony was whether in 2002-2003, Duchner had given him NIS 500,000 and whether Duchner did this as a bribe for Olmert’s helping move the Holyland project forward.
Yossi had previously told police that he had met with Duchner and been given NIS 500,000, but that Olmert knew nothing about it.
This was Olmert’s simple – if not entirely impermeable – defense from police questioning as well: Duchner was running around trying to bribe or find favor with people, but Ehud never requested or knew about it. Thus, it was not his problem – and he was not guilty.
Whether speaking truthfully or because he can’t read a script, Yossi told the court that he had never met Duchner or gotten money from him – except Yossi later admitted that he had, in fact, met him and received a smaller amount of money in 1996.
Why would Yossi tell something untrue to police that would hurt his brother more? He gave several different answers, but in one of them he likely subconsciously slipped and mentioned that Olmert was currently in the room with him.
The prosecution pounced and accused him of blatantly changing his story out of fear of Olmert being there, and even Olmert’s lawyers accused Yossi of lying, in an attempt to protect Ehud’s credibility.
The court, in an unprecedented open show of its view, told Yossi that his story actually worked better with Duchner’s story, that he gave Yossi money as bribes for Olmert, than it did with Olmert’s story – and said it may use Yossi’s testimony to nail the former prime minister.
Since then, there has been little directly impacting Olmert’s case, but other big defendants like former Jerusalem mayor Uri Lupolianski and former chief city architect Uri Sheetrit have taken big hits in the cases against them.
The increased credibility lent to the prosecution’s overall narrative from this – that Holyland was a massive fraud in which Duchner bribed a group of public officials, including Olmert – can only have helped the prosecution in convincing the judge to buy its arguments against Olmert.
Where does this dizzying array of back-and-forth changes in momentum leave the case against Olmert, as he takes the stand on Sunday?
While Olmert is probably in better shape overall than he might have predicted 14 months ago, the case against him is very much alive. At the end of the day, whether a judge thinks there is reasonable doubt to the charges against a defendant often depends on whether the judge finds the defendant’s in-court denials and explanations credible.
Olmert will need to convince Rozen either that he did not know about any of the money being paid to his bureau chief, driver and brother for causes as diverse as paying off debts to helping with his elections campaigns, or that he did not view the funds as a bribe, but as genuine political support.
He will need to explain why Duchner would be buying Zaken expensive jewelry, when they had no known relationship aside from Zaken being Olmert’s “right hand” and Duchner wanting Olmert’s help with the Holyland project.
Olmert will need to make some sense of why Yossi was getting money from both Talansky and Duchner, when neither of them had any connection to him – besides Olmert.
He will need to make the case why, even as Rozen has openly appeared ready to condemn other defendants as being involved in the fraud, that his hands were clean.
He may succeed in doing so, partly because he was careful not to take funds directly from Duchner.
Most of Duchner’s contact with him was through Zaken, who it appears may have made some independent requests of Duchner.
If he does, he may finally clear his name after five years of legal wars with the prosecution in multiple “affairs” that few can keep track of, and may get one last chance to restore his political legacy and shake up the Israeli political scene.
If he cannot convince Rozen, even with all of the holes he poked in Duchner’s testimony, his luck may finally run out – and his political career may finally be at an end.