The ‘Olmert effect’ helped Liberman, ended an era

Prior to the Olmert acquittals, Liberman probably would have been indicted for money laundering, fraud.

Avigdor Liberman 370 (photo credit: Marc Israel Sellem)
Avigdor Liberman 370
(photo credit: Marc Israel Sellem)
Whatever happens to Avigdor Liberman in the Belarus Ambassador Affair, his situation could have been a lot worse – had his case not been proceeded by the general acquittal of former prime minister Ehud Olmert.
Prior to the general Olmert acquittals – though he was still convicted of breach of trust – Liberman probably would have been indicted for millions of shekels of money laundering, fraud and other crimes that could have led to serious jail time if convicted.
While it is not impossible that Liberman could get jail time in the current case, the most likely worst-case scenarios if he is convicted – a big “if” which is still a long way off – are having to sit out of politics for seven years and some significant community service.
But besides the possibility of being entirely acquitted, there where Liberman could get convicted only of breach of public trust or where the courts could give him as lenient a sentence as Olmert received.
In contrast, if Liberman had been indicted and convicted in the “main” case against him that was closed, seven years out of politics would have been virtually guaranteed and the real question would have been prison time, and how much.
Prior to the Olmert case, head prosecutor Moshe Lador and those before him had not won every recent case against public officials, but they had a strong record for convicting former president Moshe Katsav, former ministers Arye Deri, Tzachi Hanegbi and Avraham Hirschenson, among others.
The trend in the prosecution was not only to seek cases they would be able to win in a traditional sense, but to break ground aggressively in new areas using fresh strategies and reinterpretations of old laws to strike at areas of corruption that had escaped public scrutiny.
Lador wore the banner of “one law for all” with pride.
Now, at least in the eyes of much of the general public, he is in disgrace.
His judgment and motives are questioned.
The debate is not about whether the prosecution failed in the Olmert case, but dissecting the reasons for its failure.
Calls have strengthened for oversight of the prosecutor’s office for wasting public resources on failed cases. And Lador has lost the trust of his boss, Attorney-General Yehuda Weinstein.
Lador approached the Olmert case, and for that matter the Holyland trial and the main Liberman case, with the idea that if on balance, he had compelling evidence against a defendant and could prove that the defendant’s alibi made no sense, the case should be filed and he would win.
It is not a crazy idea and it had worked numerous times in other high profile cases – especially when the crime was only financial and the state would subtly nudge the courts to accept a slightly lower standard of proof, since they weren’t accusing a defendant of a serious crime with the possibility of a long prison sentence like rape or murder.
But that is not what the standard of proof is in criminal cases. Murder, rape or breach of public trust: the standard is beyond a reasonable doubt.
The balance of evidence is not enough. Disproving the other side’s alibi is not enough. The state has to prove its case overwhelmingly, regardless of whether there is not a solid alibi.
Weinstein’s decision to close the main Liberman case is not just a statement about the particular case, but is also returning the state to that fundamental rule in general.
Lador thought that Moshe Talansky – the main witness in the Jerusalem corruption trial – and S.D. – the main witness in the Holyland trial whose name is under a gag order – would be sufficient against Olmert because of the damaging testimony they had against him.
But he ignored the question of whether the witnesses would have other credibility problems that would undermine their otherwise damaging testimony.
Lador wanted to do the same with “Daniella,” the main witness against Liberman who allegedly had tons of out-of-court testimony against Liberman, but then changed her tune and said she didn’t remember anything.
The head prosecutor came up with the creative idea that her contradiction was so abrupt and absurd that it strengthened her initial testimony. The logic is actually quite appealing and would likely work in a civil case, but it simply does not speak to criminal law principles.
Learning the lessons of the Olmert general acquittal, Weinstein’s decision did not simply remove a major case against Liberman, it ended an era of pushing the envelope on the standard of proof and trying to use aggressive rationales to convict in corruption cases.
This is not even all that speculative, as Weinstein took the unusual measure of admitting in the conclusion of his 95-page opinion closing the Liberman case that he had commissioned a special report on the impact of the Olmert case.
Closing the Liberman case was an announcement that the Olmert effect has ended an era.