Former prime minister Ehud Olmert’s legal team on Thursday took a dramatic U-turn in the appeal of his Holyland bribery conviction, denying that his brother Yossi had ever received an NIS 500,000 bribe.
They had previously agreed during the trial that Yossi had received the funds – and only disputed whether Ehud knew about it.
The issue is crucial as one of the two main foundations of Olmert’s bribery conviction was that Shmuel Duchner, the middleman who paid off politicians to get them to move the Holyland real estate project forward, gave Yossi the NIS 500,000 at Ehud’s behest.
Until now the assumption had been that Ehud admitted Yossi received the funds, but was arguing that he should be found innocent, as Duchner deposited Yossi the funds without telling him.
Much of the case revolved around Yossi’s statements about whether Ehud knew or not, but the premise was always that all sides agreed that Yossi received the funds.
This post-sentencing U-turn at the appeal stage, took the expanded five-justice Supreme Court panel by surprise, with the justices expressing consternation that Olmert would make such a change in his narrative at this point.
Olmert’s lawyer, Navit Negev, explained that while she admitted that another of his lawyers, Roi Belcher, had agreed early on in the trial that Yossi had received the funds, Olmert himself testified differently.
Between his testimony and the detailed closing statement that his lawyers submitted, Negev argued that Olmert’s final narrative had been to deny that Yossi received any funds.
The root of the argument that Yossi did not receive funds is that despite both Duchner and Yossi admitting that the fund transfer took place, no one has traced down any paperwork in any of the relevant bank accounts that proves this.
One bright point for Olmert, was that the court appeared to reject an attempt the state made to inject new evidence against him into the appeal decision they opposed, through a back-door legal move.
The state had tried to bring evidence, writing that if the Supreme Court was entertaining granting the appeal, it should first read an email that Shula Zaken sent to her lawyer, Ofer Bartal, regarding the NIS 500,000 bribe that Duchner paid to Yossi.
This evidence was not part of the trial or conviction because Zaken did not turn against Olmert until after he had been convicted, and is mostly being used against him in a retrial of the separate Talansky Affair.
According to the state, the email that Zaken sent to her lawyer before she testified in the Holyland trial and long before she cut a deal with the state, confirmed that she had spoken to Duchner about him paying Yossi the funds at the prime minister’s bidding.
Since Zaken was not yet a state’s witness, this email bolsters her in-court testimony, which Olmert’s lawyers attacked as non-credible.
The state’s written opposition to Olmert’s appeal also said that the court would want to hear tapes in which Olmert, Zaken and others discuss his role or knowledge of the separate NIS 60,000 bribe he was convicted for in the Holyland case.
Tel Aviv District Court Judge David Rozen had said in his sentencing opinion that this evidence significantly strengthened the convictions he had already handed down to Olmert, the state added.
The Supreme Court said that the state could not mention the evidence as an aside in its opposition to the appeal and expect the court to consider it without making a formal motion to the court to accept the evidence in the case.
Olmert’s lawyers slammed the state’s raising new evidence as an “improper” attempt “to poison” the court against the defendant.
The state said it would take the court’s comments into consideration, meaning that it will either withdraw the evidence or file a formal motion asking the court to consider it.
Though Olmert is not yet free from the evidence, the court and the state’s comments mean the state would need to overcome significant obstacles to use it.
Olmert’s lawyers made a variety of other claims over an extensive four-and-a-half hour argument, but did not appear to receive significant sympathy from the justices, who implied that they were trying to improperly relitigate the same facts, instead of mentioning legal issues Judge Rozen missed.
The former prime minister’s lawyers made no additional oral arguments about reducing his six year sentence, though in their written appeal, they called the sentence unprecedentedly harsh, especially since they said that neither of the bribes he was convicted of were ones from which he personally benefited.
The written appeal criticized Rozen for punishing Olmert for his high office and failing to consider his positive contributions to the state as a factor for a more lenient sentence.
Olmert was convicted in March on two counts of bribery and Rozen sentenced him in May to six years in prison.