Analysis: Death of a Holyland witness

Unsurprisingly, there will be strong views about the impact of the death of the state’s main witness in the Holyland case against former prime minister Ehud Olmert and 15 other defendants, including former Jerusalem mayor Uri Lupolianski.

At the next hearing in the Tel Aviv District Court on Monday, defense attorneys will likely ask for a mistrial, canceling the indictments against their clients or at least canceling or reducing the importance of some parts of the testimony of ‘S.D’ – as he is referred to under a gag order so far even after his death on Friday.

The foundational idea of their arguments will be that if S.D. was the state’s main witness and they did not get to fully cross-examine him, then the defendants’ rights to a fair trial have been fundamentally undermined.

When S.D. died, about half of the defendants had cross-examined him, half had not even started and, in an incredible turn of fate that will lead to a range of books by academics, Olmert’s legal team was exactly in the middle of its cross-examination.

According to University of Haifa criminal law professor Emanuel Gross, the arguments for the seven defendants, like Lupolianski, who already crossexamined S.D., will be a hard one legally, regardless of how it might look to outsiders. If S.D. already testified against them and they cross-examined him about the specific charges against them, legally speaking, one could say that it should not matter that he died.

The testimony is recorded and sealed, and anything that happens thereafter, whether his incapacitation or death, “does not erase” the testimony, said Gross.

At best these defendants might be able to argue that they had not really finished and had announced they were relying for some of their defense on overlapping cross-examination from other defendants which never happened. A possible winner, but already a weaker argument.

Not that the state has them beat, it just may be that S.D.’s death won’t hurt or help them.

The defendants who did not get to cross-examine S.D. at all, like Olmert’s former bureau chief Shula Zaken, are in the best shape.

They can genuinely say that they have had no chance to contradict S.D.’s testimony, and especially when almost every cross-examination caught him in contradictions, this could be very convincing to Judge David Rozen that it would be unfair to use S.D.’s testimony against them.

Gross said that at the very least these defendants can attack the “weight” or significance the judge gives to S.D.’s testimony.

In that vein, Gross said that it should be recalled that S.D.’s testimony is inherently viewed with some amount of suspicion as he was a former “partner in crime,” someone suspected of not being truthful and having potential mixed motivations.

Here, the state has a few options, none of them good.

The state can try to blow the argument out of the water by saying that S.D. testified for 75 court hearings over eight months, was cross-examined by half of the defendants in issues covering virtually every aspect of the Holyland real estate project, and that such an extraordinary amount of testimony (normally a witness testifies for one day or a few at most) should override the standard argument that each defendant must have a chance at cross-examination.

Judge Rozen would need to stick his neck out to endorse that argument, but it is not impossible.

If that does not work, the state could retreat without throwing its hands up in the air.

It could say it is willing to agree that the judge should weigh S.D.’s testimony as “blemished” since there was no cross-examination for some defendants, but for all of the above reasons, the court should still consider the evidence, even if it gives it somewhat less weight.

The state could add on to this that it has outside evidence to support S.D.’s testimony. All of these arguments, though, are at best a try to mitigate what is a bad situation for the state.

Mainly, there is a stronger likelihood of the state looking for plea bargains to lesser crimes with these defendants.

Then there is Olmert. All of the above arguments will be made by both sides.

The state will try to say that enough cross-examination took place that he should be treated like those defendants who finished their cross-examination.

The defense will note that S.D. was never questioned on the central charges against Olmert, the actual bribery.

Rather, he was questioned mainly on side issues to attack his credibility and overall narrative.

The next most important events for Olmert will likely be the testimony of his brother Yossi Olmert, about how much Ehud Olmert knew and was involved about him receiving money from S.D., as well as potential testimony by Ehud Olmert himself and Zaken.

The defense will try to present Yossi Olmert as a separate issue and any items received by Zaken from S.D. as a separate issue.

They will argue that without cross-examining S.D., if his testimony on Ehud Olmert’s involvement in funds going to Yossi Olmert and Zaken is the only evidence, then Ehud Olmert cannot be convicted.

The state may try to say that there can be no explanation or any other interest for S.D. to have given such large amounts of money to both Yossi Olmert and Zaken without Ehud Olmert having been involved, and all of it being connected to the Holyland project in Jerusalem.

Gross said it was important to remember that because of S.D.’s status as a “partner in crime,” the legal rule is that the state always would have needed “siyuah,” or substantial confirming separate evidence from other witnesses like Yossi Olmert, or other documents, to convict Olmert.

In that sense, the state’s position is worse, but not completely torpedoed.

What Judge Rozen will do with these issues is a complex legal puzzle.

But Olmert was in great shape already. The judge had told the members of his legal team last week that they did not really need more time, suggesting they did not need to bloody S.D. (legally) any more than they already had to put Olmert in the driver’s seat.

In the end, the Zakens of the world have gained the most, the Lupolianskis the least and Olmert himself can only have gained, and cannot have lost in a trial that was already going overwhelmingly his way.