Analysis: Judges’ silence says Olmert not down for count yet

One never knows what judges are thinking until one reads their verdict.

By YONAH JEREMY BOB
Ehud Olmert (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Ehud Olmert
(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Something shocking happened Thursday in the already mesmerizing retrial of the Talansky Affair against former prime minister Ehud Olmert.
The public narrative has been awful for Olmert.
A combination of recordings of him and his former chief of staff Shula Zaken talking about the case, her journal and her testimony presented allegations that he illegally used funds for expensive cigars, tailored suits and dry cleaning, that he illegally paid Zaken unearned additional funds and that he pressured Zaken into refusing to testify in the original trial against him.
Many have already counted him out in this case, despite his initial acquittal in 2012.
One never knows what judges are thinking until one reads their verdict.
But as Olmert’s lawyers threw out premise after premise, with a complete alternate reality on each of the issues raised in the case, and with the prosecutors squirming and pained at what they viewed as perverting the facts, the judges remained strangely and emphatically silent.
When the prosecution presented its case, which has been the conventional wisdom, the judges tore into the prosecution, giving the impression that either the judges were justifying switching their prior acquittal to a conviction by punishing the prosecution for not having had the new evidence in the original trial, or that they were much more negative on the state’s new evidence than the public realizes.
Most expected the judges to equally challenge Olmert’s lawyers, and even more so, as his lawyers offered highly unconventional interpretations of the recordings and other evidence that could leave him in the clear.
Maybe the silence was because the judges had already decided to convict Olmert.
But perhaps they think that Olmert’s lawyers’ unconventional side of the story is spot-on.
On Olmert’s failure to testify, framed by most as an admission of guilt, his team said that the Supreme Court sent the case back for a very limited evidentiary hearing, not a full retrial where he was obligated to testify.
On Zaken’s testimony, Olmert’s team said it was mostly legally irrelevant, as she was only supposed to testify in the retrial to support new evidence from the recordings and the journal.
Much of what Olmert and Zaken discussed in the recordings sounded bad, but is not part of the evidence of this case, they said.
They said that whether Olmert tampered with Zaken testifying in the original Talansky trial or the separate Holyland trial, if relevant at all, might be at most relevant for a new prosecution case against Olmert that has not yet been filed.
At the end of the day, they said that the recordings only showed evidence of payment by Olmert to Zaken of $30,000, and not any direct illegal personal use of the disputed funds by Olmert.
Even there, Olmert’s team showed that under its unconventional interpretation, the $30,000 could be considered a payment for permitted political “overtime” work by Zaken for Olmert.
The shocking possibility is that after all of the new damning evidence against Olmert, the judges’ silence in the face of this alternate narrative, suggests that Olmert may beats the odds again in the Talansky retrial.