Former prime minister Ehud Olmert and his 15 co-defendants seemed to be on a
They had decisively killed off the state prosecutor’s momentum in
only the first of 16 expected rounds of cross-examination of the state’s main
“S.D.,” as he is known under a gag order, seemed to get new
holes exposed in his story on a daily basis.
Time after time, he could
not remember key pieces of information.
Time after time he made claims
about what was contained in various documents, only to have to later admit that
he could not find the material in the documents in question.
Maybe it was
all in your head, Hillel Cherny’s attorney Giora Aderet seemed to imply
repeatedly, showcasing S.D. as disorganized, unreliable and not
Olmert and his co-defendants started to relax as
S.D. went on what seemed like a rant charging bribery against famous
persons, including several highly respected former mayors of Jerusalem and Tel
Aviv dating back decades before any of the events regarding the Holyland
real-estate project took place.
Who would believe S.D. when he
seemed to accuse the entire country of bribery and fraud, and seemed maybe only
to want attention and payback against his former bosses for dispensing with his
Best of all, Judge David Rozen seemed to have lost patience
with S.D.’s laundry list of accusations, many of which seemed to be unnecessary
and make little sense.
In several cases, Rozen said quite bluntly that he
was sick of S.D. making allegations without backing them up.
everything turned upside down.
S.D. was hospitalized one week ago,
bringing the trial, but more crucially the cross-examination and vilifying of
S.D., to a screeching halt.
Originally, the court hoped S.D. would be out
of the hospital by Thursday and it would merely reduce the number of hours S.D.
needed to testify each day to around three hours from around five.
this change would have radically altered the trial.
Already, Rozen had
ordered that the state start calling its other witnesses in the afternoon hours,
between the lunch break and 8 p.m.
Such an arrangement is very unusual,
as standard procedure is to hear one witness from beginning to end, including
cross-examination, before you move on to another witness.
several reasons that defense attorneys would have already been concerned by the
trial running on parallel but separate morning and afternoon
First, introducing new state witnesses changes the
Court cases are the sum of all of the tiny details that come out
throughout a case, but they are also narratives.
The tearing S.D. apart
under cross-examination narrative was one that the defense attorneys hoped to
keep going for an extended period, both as a statement in the public’s mind and
in Rozen’s mind.
Second, interrupting testimony.
This often allows
S.D. to confer more often with his own notes, and with the state prosecutors
(although technically this is not allowed, almost every good defense attorney
finds a way to do it that does not violate the letter of the law) and to
generally be better prepared and less surprised by new angles of
Third is unique to S.D. The state’s main witness is a deeply
troubled man, both physically and mentally. To use a sports metaphor, the last
thing you want the other side to get to do when it’s down and you have it on the
ropes is to call a “time out.” Some have speculated throughout the case that
S.D. might have a mental breakdown in court and make statements which
would cause the entire case to fall apart.
If the defense attorneys were
pushing for this, and their continued aggressive posture toward S.D. and
on-and-off verbal abuse imply that it was something they hoped for, even if not
something they could guarantee, it now is much less likely.
a physical breakdown does not damage any of his prior testimony supporting the
state’s case. It only delays their ability to continue cross-examining him, and
15 of the defense attorneys have not even started.
So any pause and
moving on with other witnesses would have been bad for Olmert and the other
However, S.D.’s inability to return at all on Thursday raises
a new and more worrying scenario for the defense.
What if he can’t
physically return to the case? He’s made his case for the state already and
there have been several weeks of cross-examination.
Could the defense be
stuck with a situation where it does not get another shot at him in
cross-examination? This would create deep, possibly constitutional, problems for
the trial from the perspective of due process and defendants having their full
day in court.
But one could imagine a court saying that the weeks of
direct and cross-examination testimony were enough to decide an eventual
Returning to sports metaphors, the image of a rainout after the
fifth inning of a baseball game comes to mind.
Just slightly more than
half of the game was played before the rain stopped the game, but whoever is
winning at that point walks off with a victory.
This scenario is quite
unlikely, and more likely S.D. will return soon under Rozen’s parallel tracks of
morning and afternoon testimony.
But either way, the tide has turned once
again. This time not in Olmert’s and the other defendants’ favor.