Many observers are scratching their heads about the state’s recent decision not to cut a deal with Ehud Olmert’s former top aide, Shula Zaken, to testify against him in the Holyland trial.

Hadn’t the state been begging her to testify for five years against Olmert, starting with the Jerusalem corruption trial from years ago and continuing with the Holyland trial? Hadn’t the state offered her either immunity or a lesser sentence than what she reportedly was ready to accept at this stage? And isn’t the state’s case on the ropes, with Olmert about to win acquittal again in another embarrassing loss for the state against a major public figure – meaning, didn’t the prosecution need every witness it could get? These are all good questions, but they miss a crucial fact: the passage of time and how that time has changed circumstances.

Five years ago, or even less than two years ago in the Holyland trial, Zaken’s testimony against Olmert could have been crucial.

But Zaken invoked her right to silence in the Jerusalem corruption trial, in which Olmert was already largely acquitted, and finished her Holyland testimony in which she, among other things, stood as a firewall for Olmert regarding accusations against him of bribery.

Add that, unlike the state’s main witness, the late Shmuel Dachner, she did not have a mountain of documents to verify her accusations against Olmert, and was having a sudden change of heart immediately after being slammed by Olmert’s lawyer on television.

In other words, too little too late – and she looked too much like she was out for revenge.

Whether what Zaken would have said against Olmert would be true or not, there are rules in law, spoken and unspoken.

An unspoken rule is that many defendants lie to the police, but come clean in court with the truth when turning state’s witness, and most judges will believe what they say in court.

But once a witness has testified, judges are much less forgiving of one trying to change his or her story. In the Holyland case, the state has concluded its arguments, the verdict date has been set for March 31, and Zaken’s real motivation for “telling the truth” looked like a naked attempt to retaliate, for which judges are less than forgiving.

Plus, while many believe Olmert will get off, the state has presented a mountain of incriminating documents and the judge might accept some of Dachner’s testimony against Olmert.

Olmert was not completely able to explain why Dachner paid money to Zaken and to his brother, Yossi, and the judge did not seem to believe all of Olmert’s explanations.

But the judge appeared to believe Zaken even less, and she might have cracked on the stand a third time.

On balance, the state decided that Zaken, at this stage, was too big a gamble for too little a potential payoff, when they believe, rightly or wrongly, that they have a solid chance for conviction without her.

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