The Jerusalem Magistrate’s Court on Wednesday tossed a key part of the prosecution’s plea bargain with former prime minister Ehud Olmert and sentenced him to an additional month of prison in the secret tapes saga.
The sentence means that, absent a successful appeal, Olmert must now serve at least 19 months in jail, when adding in his prior 18-month Holyland Affair sentence for bribery.
Olmert’s lawyer Eli Zohar objected to the ruling, saying “agreements must be respected,” but was cagey about whether they would appeal an addition of only 30 days to the 18 months his client already must serve.
Reporters speculated about whether Olmert might not appeal, to avoid having to come to court in jail clothes.
State prosecutor Keren Bar Menachem stated that the court had mostly accepted the deal but had “chosen to deviate slightly from the deal. In a few days, Olmert will start to serve a substantial prison sentence, and this is a fitting end to his saga.”
In the worst-case scenario, Olmert could face 27 months in jail, if his already filed appeal to the Supreme Court of his eight-month sentence in the Talansky Affair is denied – meaning 18 plus eight plus one would total 27 months. But the eight months may not stand, as the Supreme Court heavily reduced his Holyland Affair sentence to 18 months from an original six years as a result of his appeal in that case.
Last week, Olmert was convicted by the Jerusalem Magistrate’s Court of obstruction of justice in the Shula Zaken secret tapes saga, as expected, but the court threw a curveball into the works, implying it may reject part of the plea bargain and give him additional jail time.
In the plea bargain which Olmert agreed to on January 18, he admitted to obstruction of justice with Zaken in both the Talansky Affair and the Holyland Affair.
Olmert also agreed to a sixmonth jail sentence and a NIS 50,000 fine, but the six months was due to run concurrent with his 18-month Holyland sentence, so it would not actually add on further jail time.
His jail sentence is set to begin February 15.
But Judge Avital Chen shocked both the prosecution and Olmert’s legal team, refusing to pronounce sentence in line with the deal and setting Wednesday as a separate hearing day to make the decision.
It is rare that courts reject a plea bargain, since the law states that the prosecution has wide discretion on such issues, and most observers expected that Chen’s delay was pro forma just to show that he was not a rubber stamp.
But Chen provided another surprise Wednesday, demanding Olmert serve some actual additional time for the obstruction of justice convictions.
Chen wrote, “It is hard for me to accept the plea bargain, according to which a man who sinned with two counts of serious obstruction of justice will not serve at least a short period of jail time… where both sides agree that the fitting punishment for the matter is six months in prison.”
He explained that even as Supreme Court precedent demands deference to plea bargains, it also demands that an offender serve actual additional jail time for crimes like obstruction, unless there are exceptional reasons to the contrary. He did not find the prosecution’s and Olmert’s arguments for special circumstances sufficient in this case.
Last week, Chen repeatedly challenged the prosecution to defend its failure to add on more jail time for Olmert despite what he considered a slam-dunk case against him.
The Jerusalem Post has also learned that Olmert has not made a formal request for a pardon to President Reuven Rivlin, though sources close to him had hinted they would seek one in the past and though the start of his sentence is days away.
When the deal was announced, many also expected Olmert and the state prosecution to reach a deal on the Talansky, Rishon Tours and Investment affairs, but ultimately talks broke down on those cases, and the sides argued over them on January 19 before the Supreme Court.
From their arguments to the Supreme Court, it was clear that the sides split over whether any jail time Olmert agreed to in those affairs would also run concurrent with his 18-month Holyland sentence, or whether time would be added on to the sentence.
The prosecution was ready to let his six-month sentence in the tapes saga be subsumed by his prior 18-month sentence, but was not ready to make the same concession on the eightmonth Talansky Affair sentence.
Chen only improved the prosecution’s standing on refusing a deal that would reduce jail time for Olmert on the Talansky Affair by attacking it for even cutting such a deal in the tapes saga.
At last week’s hearing, the prosecution said that Olmert had expressed regret, had endured years of legal challenges and that his obstruction was weak on the scale because Zaken had acted in concert with him voluntarily.
Chen pressed them that Olmert’s regret was not genuine and was just to save his neck from more jail time and that the case had been a slam dunk with no evidentiary problems.
The plea bargain on obstruction of justice was filed by the Central District Attorney’s Office with the Jerusalem Magistrate’s Court simultaneously with a new indictment for the two separate counts of obstruction of justice corresponding to the Talansky and Holyland affairs.
In May, the Jerusalem District Court sentenced Olmert to eight months in prison following his conviction in the Talansky Affair retrial, one of three violations he was accused of in the Jerusalem corruption trial.
The Talansky case consisted of Olmert illegally receiving, using and concealing at least $153,950 in envelopes from New York businessman Morris Talansky between 1993 and 2002.
Olmert is already set to become the first prime minister in the country’s history to go to jail.
Still in the works also is the state’s appeal of other cases in which Olmert has been acquitted, such as the Rishon Tours Affair.
In the case of Rishon Tours, Olmert had been accused of double-billing organizations for reimbursements for international flights, and the state has appealed the verdict that found him innocent of these charges.
Without a plea bargain, Olmert faces potential additional jail time if the Supreme Court reverses his Rishon Tours Affair acquittal.
The Talansky Affair retrial came out of the state’s appeal of Olmert’s July 2012 acquittal in the original trial to the Supreme Court, with the Supreme Court sending the case back to the district court for a retrial in summer 2014.
In the more minor Investment Affair, Olmert was convicted of granting of favors in his capacity as a minister to his confidant Uri Messer, despite a conflict of interest.
Olmert received a sentence of six months community service, which the state has also appealed.
A Supreme Court order for a retrial of these cases came after shocking new recordings emerged last year suggesting Olmert may have been illegally plotting with his former aide of 30 years, Shula Zaken, regarding the handling of his original trial.
Zaken refused to testify in the first trial and perjured herself on Olmert’s behalf during the Holyland trial, without letting on about the existence of the recordings until these cases were being appealed, and she became embroiled in negotiating a separate deal with prosecutors.
Olmert admitted to telling Zaken not to testify in the first trial and to not cut a deal with the prosecution in the Holyland trial. He told her, “If I am not acquitted, no one will be acquitted.”
He also offered to arrange for her to be paid large sums of money, including having her legal fees covered. Zaken listened to him and refused a plea bargain before taking the stand in the Holyland trial.