When considering any appeal’s chance of success, you need to start with first principles.
The first principle is that most appeals lose and that appeals attacking a lower court’s ruling about facts or about which witnesses to believe lose more often than appeals that are at least based on an alleged legal error.
This does not help Ehud Olmert, since a substantial part of the Holyland case is based on factual findings.
But his outlook appears better when we focus on the clear legal issues that the former prime minister can raise on appeal.
At this second stage, we can note that Olmert’s lawyers never got to cross-examine his main accuser, Shmuel Duchner, on either of the two bribery charges on which he was convicted.
To clarify, while Olmert was accused of receiving as much as NIS 1.5 million in bribes, he was acquitted of bribery charges other than for NIS 500,000 that Duchner gave to his brother Yossi Olmert at Ehud’s request, and for NIS 60,000 that Duchner gave at Ehud’s request to his aide Shula Zaken and confidante Uri Messer.
While Olmert’s lawyers got to cross-examine Duchner for several days about most of the bribery charges and had a field day catching him in inconsistencies, ironically Duchner died in between cross-examination sessions, on March 1, 2013, before they got to grill him on the NIS 500,000 and the NIS 60,000.
Since a fundamental principle of criminal law is for defendants to get to confront their accusers through cross-examination, which Olmert did not get to do, his lawyers can ask that Duchner’s testimony on both charges be thrown out as a matter of law.
So Olmert would appear to have a strong legal case for appeal.
Unfortunately for him, we arrive at a third principle: that the right to cross-examine is not absolute and can be overcome.
One basis for overcoming that right is where the witness is deceased and where the court has found not only that the witnesses’ basic narrative was true, but also that the defense’s narrative is clearly untrue and baseless.
The court made exactly that finding in this case, saying that even if Olmert could have cross-examined Duchner, it would not have helped him build his defense, because the court did not believe the core of his alibi held any water.
Searching for other legal issues, Olmert can attack the fact that there is no documentary proof that Yossi received the NIS 500,000.
But again unfortunately for Olmert – putting aside that there is plenty of documentary evidence regarding the NIS 60,000 bribe, which would leave him convicted of bribery – the lack of documents is no defense when Duchner and Yossi, the bribe’s giver and receiver, have both admitted either to police or in court that the NIS 500,000 transaction took place.
Last, Olmert could say that there is a legal principle that when a witness like Duchner has so many inconsistencies, the judge should be bound to throw out all of his testimony and not be permitted to selectively believe some of it.
The problem is that not only is that really a factual issue trying to pose as a legal issue – such that the Supreme Court will defer to the lower court on it – but the court cited 10 pages of inconsistencies of Duchner, meaning it will be a hard sell to argue that the court was overly trusting of Duchner.
Rather, where the court believed Duchner, it was where his allegations were supported by external documents or by the testimony of others like Zaken, Yossi and New York businessman Morris Talansky.
This last point is crucial in explaining Olmert’s loss here versus his overall win in the Jerusalem corruption trial of 2012.
In both trials, the state relied on problematic state witnesses: Talansky (in the Jerusalem trial) and Duchner (in the Holyland trial.) But in the Holyland trial, Olmert was sabotaged unintentionally by Zaken’s and Yossi’s testimonies (and by Talansky, who was ironically more useful in his second appearance), which, even in trying to defend him, invariably wrecked his defense and supported Duchner.
Unfortunately the factual holes that these “friendly” witnesses made in Olmert’s case (and this was when Zaken was still trying to help) will likely be too numerous to overcome on appeal.