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
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
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
The testimony is recorded and sealed, and anything that happens
thereafter, whether his incapacitation or death, “does not erase” the testimony,
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
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.
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
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
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.
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
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.
will try to say that enough cross-examination took place that he should be
treated like those defendants who finished their cross-examination.
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
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.
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
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.
that sense, the state’s position is worse, but not completely
What Judge Rozen will do with these issues is a complex legal
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.