The political ground shook on Wednesday night, with reports that Ehud Olmert’s former top aide and decadeslong devotee Shula Zaken was seriously considering turning state’s witness against him.
Even more sensational were reports indicating that the speculative deal might include her testifying against Olmert not only in the Holyland trial, which is near its close, but also in the Jerusalem corruption trial in which a verdict was rendered in July 2012.
How can Zaken testify against Olmert in the Holyland trial, when the prosecution has rested its case and all that is left is the verdict? How can Zaken testify against Olmert in the Jerusalem corruption trial, when the verdict is history? First of all, the general rule in both cases would be that she can’t.
Except, as in all things legal, it depends.
If what she has to say is so new and important that fundamental justice and the public interest demand her testimony against him – then, yes, theoretically Judge David Rozen could (but does not need to) decide to reopen testimony and return her to the stand.
And, yes, even the nearly 20-month-old Jerusalem trial verdict could theoretically be reopened by the Supreme Court, which is currently considering its decision on the state’s appeal of Olmert’s overall acquittals.
Some in the media are citing the recent Roman Zadarov and Tair Rada conviction that was reopened by the Supreme Court, as an example regarding new evidence.
The comparison is far from perfect. There the evidence was scientific, not a witness who had already testified or been available to testify, changing or adding testimony.
There, the potential outcome was exploring all avenues of innocence for a defendant so that he not remain, potentially wrongfully, in jail – not to undermine a former prime minister found innocent overall in one case, and to improve the chances of a conviction in the second.
Courts generally answer extraordinary requests to help defendants, not to hurt them.
Still, fighting public corruption, allegedly by a former prime minister no less, could be enough to move a court to make an exception.
But what would her impact be, even if she were to testify? Why would the court accept that she was telling the truth now, apparently badmouthing Olmert to get less or no jail time, as opposed to before, when she also swore under oath and either cleared his name or kept silent? It is very late in the game and Zaken is such an unpredictable witness that she could also get on the stand and be pushed off message or change her mind when confronted by Olmert’s talented legal team.
After all of this theory, the fact is that probability (by a slim margin) would dictate that there will be no deal.
If reports are correct, the state will agree only to reduce Zaken’s jail time, but wants her to serve some time, but she will take a deal only with no jail time. Talk about irreconcilable.
But this may all be a game.
The sides may have reached an impasse, and Zaken’s defense lawyers may be leaking talk of a deal to try to pressure the state into agreeing to her terms.
If the state does not cut a deal now and loses it would face far more finger-pointing, because the possibility of a deal, which it turned down in a miserly way, was made public and could have led to a different result.
Also, this is at least the third time that the state and Zaken have flirted with each other in these two cases, and at the end of the day, despite it probably being in her own interest, she has not been able to pull the trigger on the man who made her.
If reports are correct, and her son’s Facebook postings reflect her feelings, then she is furious at Olmert for not defending her from allegations of being corrupt, and at Olmert’s lawyers for pretty much implying that she was corrupt and lying to the court.
Betrayed devotion can run deep, and still may lead her to bring Olmert down. But after decades of worshiping Olmert, as angry as she might be, and with all of the counterforces to turning state’s witness, she might just not be able to go through with it.