Rule of Law: Trial of the century

With a Holyland verdict on the horizon, Ehud Olmert once again faces the end of his career – or redemption; court decision on whether to delay the former premier's verdict is expected late Sunday.

Former prime minister Ehud Olmert leaves the court room after a hearing during a previous corrupution trial. (photo credit: REUTERS)
Former prime minister Ehud Olmert leaves the court room after a hearing during a previous corrupution trial.
(photo credit: REUTERS)
It is hard to imagine a more sensational trial than the Holyland trial.
Referring to the real estate project of the same name, from which one of the worst – if not the worst – bribery and fraud schemes in the country’s history arose, to its lead defendant, former prime minister Ehud Olmert, the case has filled headlines like no other.
A conviction for Olmert could lead to prison, or at least the end of his political career. An acquittal could mean redemption and possibly, his return to power.
Down to the last second, there has been one surreal and incredible development after another.
The state’s main witness, Shmuel Duchner, died mid-trial. Multiple key witnesses were hospitalized with nervous breakdowns. In the case of Olmert’s former top aide Shula Zaken, her on-the-stand breakdown led even the judge to suggest she take time to collect herself, since she was incriminating herself and testifying incoherently.
Olmert’s brother, Yossi, testified from the US because he is afraid to return to Israel where he might be hunted down by his creditors to whom he owes around NIS 3 million.
Zaken shocked the court implying a romance with her main accuser, Duchner, who had already died and so was unable to deny.
The latest unbelievable development, still with unclear consequences came late on Thursday when the state officially confirmed it had cut a deal with Shula Zaken to testify against Ehud Olmert and has asked the court to delay his Monday verdict.
A court decision on whether to delay his verdict is expected late Sunday.
The goal of delaying the verdict on the charges against Olmert would be to potentially put Zaken back on the stand, provide the court her new evidence and put Olmert back on the stand to respond.
Regardless of what happens with Olmert, the verdict for the other 15 defendants, including former Jerusalem mayor Uri Lupolianski and former Bank Hapoalim Chairman Dan Dankner are expected to go forward.
This – after weeks of drama and flirting between Zaken and the prosecution about a deal – which the prosecution ultimately rejected.
Yet in the Holyland case, nothing is certain until there is a verdict (and with Olmert’s separate Jerusalem corruption trial on appeal before the Supreme Court, one could say nothing is final until the appeal is complete.) Probably the main point of fascination and the one which will determine Olmert’s guilt or innocence (provided the above reports about new evidence against Olmert do not come through) is following the mountain of evidence and personalities testifying, and the arguments and counterarguments.
Since there is so much evidence and each piece has specific arguments, the best way to understand it is to go through point by point.
First, it is important to remember that the Holyland trial is Olmert’s second trial.
His first, the Jerusalem corruption trial, ended in July 2012 with his acquittal on the most serious charges.
The prosecution appealed to the Supreme Court, but many expect it to lose the appeal.
In the Holyland trial, which began days before the first trial ended, Olmert was accused of accepting over NIS 1.5m. in bribes (out of around NIS 9m.
given to public officials in total), either directly or through aides and his brother Yossi, to smooth over various legal and zoning obstacles. The allegations relate to the 1993 to mid-2000s period, when Olmert was mayor of Jerusalem and infrastructure, trade and industry minister.
The prosecution’s closing arguments already significantly retreated from the NIS 1.5m. figure.
Rather, it accused Olmert of receiving, through Zaken, around NIS 300,000 in bribes, plus another NIS 500,000 given to Yossi at his request.
The defense alternately attributed this retreat to some of the alleged bribes having passed the statute of limitations for bringing charges, or to the defense having specifically disproved some specific bribery allegations.
For example, originally the prosecution said Duchner allegedly gave Olmert, through Zaken, NIS 200,000- 300,000 in 1994. But the defense showed that in different points in testimony, Duchner changed whether the funds were given in 1994 or 1995.
Additionally, whereas Duchner described a process by which he would falsify records of bribes to Olmert by calling them “loans” in his bookkeeping, such loans did not appear in Duchner’s records until 1996.
The prosecution does not mention these earlier allegations in its closing statements, which the defense takes as a victory on that issue.
THE TRIAL has seen many stages since it started in July 2012.
The early days were difficult for Olmert and the other 15 defendants, including former Jerusalem mayor Uri Lupolianski, accused of taking bribes and committing fraud.
Duchner, who for around eight months of the trial was known only as S.D., had the floor and charged Olmert and the other defendants with a wide range of highly specific charges,which he and the prosecution backed up with a mound of documents.
Duchner said the project “could not have happened” without Olmert’s support, obtained through bribery, and that Olmert questioned him in detail about the real estate initiative and how he would get “reimbursed” for assisting with approvals.
He said that originally, the project was only approved for building on 25,000 meters of land, while eventually 311,000 meters of land were approved for construction thanks to the bribes.
One instance of the many bribery allegations, according to Duchner, was when Zaken requested emergency assistance to pay a NIS 50,000 debt. He said he responded by giving Olmert’s driver $10,000 that he had on-hand, having just returned from abroad.
The defense’s closing statement disputed this allegation, saying that Olmert’s records showed no need for assistance at the time to pay off election- related debts, and that Duchner was not just returning from abroad but rather took no flights for a few weeks.
In January 2013, the prosecution added to the strength of Duchner’s charges regarding bribes he paid to Olmert’s brother (who did not testify until May 2013) at Olmert’s request, when it called Morris Talansky to testify that Olmert had similarly convinced him to pay $30,000 to Yossi in 2004.
According to the prosecution, this proved Olmert’s manner of operation in getting multiple people, not merely Duchner, to pay him bribes via aid to his brother.
Then, the prosecution had several rough months during cross-examination of Duchner, in which he was cornered into admitting that some of his allegations were made up to sweeten the case, and that even some documents he had presented had been forged by him for the same purpose.
Olmert’s lawyers caught him in a dramatic moment, showing that he had done a messy photocopy job in combining unrelated documents – when they showed that a telephone number on one document did not exist on the date the document was allegedly drafted, but only existed in a completely different year.
The prosecution countered that even if Duchner forged some of the documents to strengthen its case, other evidence proved the bribes were real.
For example, on a different document that Duchner admitted was forged to prove several donations of NIS 5,000 to Olmert around 1999, the prosecution cited that Hillel Cherny, Duchner’s boss and the alleged mastermind of the Holyland bribery scheme, had admitted that the document was valid (before he knew Duchner admitted it was forged.) The prosecution said this proved the alleged bribes were actually given and that such an authentic document had been viewed by Cherny, even if the current document Duchner presented was a forged version.
If Judge David Rozen decides that Cherny’s admission is airtight proof, then the prosecution could even overcome Duchner’s forgery of documents.
But if Rozen views Duchner’s forgeries as undermining all of the allegations he made, then the case would have little chance.
ANOTHER BLOW to the prosecution’s case was the death of Duchner in March 2013, in surreal fashion fit for a legal thriller, right in the middle of being cross-examined by Olmert’s lawyers (he did not collapse in the court itself, but in between court sessions and before they were finished questioning him.) Duchner’s death not only removed the state’s main witness from pushing its case forward, but gave Olmert’s lawyers the argument that some charges against him – for example, regarding the alleged NIS 500,000 Duchner gave Yossi – should be dropped, since they did not get to cross-examine him on those allegations at all. In fact, Duchner’s death cut both ways, as it also left the state no witness to deny Zaken’s claim that most of the funds he gave her were not bribes, but related to the romance she alleged between them.
This argument, while not necessarily a death sentence for the case, could be based on the idea that you cannot convict a defendant based on testimony unless the witness is cross-examined, giving the defendant a true chance to confront the allegations against him.
But Rozen can and may decide that enough cross-examination took place, or that enough external evidence of another sort exists to convict Olmert.
IN APRIL 2013, then-deputy state head prosecutor Shuki Lemburger was flirting with dismissing the case because of Duchner’s death.
But in May 2013, life was breathed back into the prosecution’s case, when Olmert’s wayward brother, testifying from the US, wrecked portions of Olmert’s narrative and built up the credibility of Duchner’s earlier testimony.
The key point around Yossi’s testimony was whether in 2002-2003, Duchner had given him NIS 500,000 and whether Duchner did this as a bribe for Olmert’s helping move the Holyland project forward.
In their closing arguments, the prosecution and the defense invested significant time on this point, one of the possibly decisive issues.
The prosecution said Yossi had previously told police that he had met with Duchner, and been given NIS 500,000.
Next, they said there was no possible reason for Duchner to give Yossi these funds – other than due to a request by Olmert.
Olmert’s simple if not entirely impermeable main defense was that Duchner was running around trying to bribe or find favor with people, but Olmert never requested or knew about it.
Therefore, it was not his problem – and he was not guilty.
The defense also added for good measure that no one had found documentary evidence proving that any funds were given to Yossi at all, but against his brother’s admission to police and poor court performance, this argument probably did not help much.
Whether speaking truthfully or because he can’t read a script, when Yossi testified in court, he changed the story he told police, telling the court he had never met Duchner or gotten money from him.
Except later, in court testimony, Yossi admitted that he had, in fact, met him and received a smaller amount of money in 1996.
Why would Yossi tell something untrue to police that would further harm his brother? He gave several different answers, but in one of them he likely subconsciously slipped, and mentioned that Olmert was in the room with him (but had not been when he admitted to police he had received funds).
The prosecution pounced and accused him of blatantly changing his story, out of fear of Olmert being in the room. Even Olmert’s lawyers accused Yossi of lying, and in their closing statements asked the court to disregard his in-court testimony.
The court, in an unprecedented open show of its view, told Yossi that his story actually worked better with Duchner’s story – that he gave Yossi money as bribes for Olmert – than it did with Olmert story, and that it may use Yossi’s testimony to nail his brother.
Moreover, the prosecution argued that Zaken admitted to police (though denied in court) that Duchner’s testimony – in which he told her about Olmert’s request to pay his brother – could be true, and that her response could have been, as Duchner said, to be annoyed – since she was against Olmert helping Yossi (who she considered a deadbeat).
Will the court accept the defense’s rebuttal on this point, that Zaken’s answer of “It’s possible” was planted in her head by police, and that really she just meant “I don’t remember”? WHERE DOES this dizzying array of arguments lead? While the former prime minister is probably in better shape overall than he might have predicted 21 months ago, there is serious evidence against him.
Whether Rozen thinks there is reasonable doubt to the charges against him could depend on whether the judge found Olmert credible.
Olmert’s testimony was not always helpful to him, sometimes going too far and getting too fancy in his arguments and denials.
At one point, Rozen even advised him to leave legal arguments to his lawyers and only discuss his personal knowledge.
Did Olmert convince Rozen that he did not know about any of the money being paid to his bureau chief, driver and brother, for causes as diverse as paying off debts to helping with his election campaigns? The prosecution tried to chip away at this idea, by portraying Olmert as pretending he was less close to Duchner (who was invited to Olmert’s son’s wedding and many other Olmert-related events) than he actually was.
Zaken’s story about her romance with Duchner, to deflect the focus away from Olmert, did not seem to convince many observers – or Rozen.
Rozen would need to accept Olmert’s other explanations about why Duchner would be buying Zaken expensive jewelry.
This, despite their having no known relationship, aside from Zaken being Olmert’s “right hand” and Duchner wanting Olmert’s help with the Holyland project.
Olmert’s closing statement says that the court should not draw parallels between Talansky giving Yossi $30,000, and Duchner giving Yossi funds.
The defense said that Talansky giving his brother funds was perfectly legitimate – since as a non-Israeli he had nothing to gain, and was certainly not depending on Olmert for business approvals like Duchner was.
But the court may find for the prosecution’s argument, that the parallel with Talansky proves Olmert would have asked Duchner to do the same.
Has Olmert successfully convinced Rozen that his hands were clean, even as the judge has openly appeared ready to condemn other defendants, including Zaken, as being involved in the fraud? He may succeed in doing it, for one, because he was careful not to take funds directly from Duchner, and most of Duchner’s contact with him was through Zaken – who clearly received some independent gifts from Duchner, including expensive jewelry.
If he did, he may finally clear his name after five years of legal wars with the prosecution, in multiple “affairs” that few can keep track of – and may get one last chance to restore his political legacy, and return to the top of the Israeli political scene.
However, if Olmert did not sell Rozen, then with all of the holes he poked in Duchner’s testimony, his perfect record of fending off allegations may finally run out – possibly taking him out of the political game permanently.