Analysis: Snatching defeat from the jaws of victory

Olmert’s testimony, lawyers’ tactics at Holyland trial improve chances for acquittal, for the most part.

Olmert in court 370 (photo credit: Pool/Yediot)
Olmert in court 370
(photo credit: Pool/Yediot)
Former prime minister Ehud Olmert mostly improved his chances for acquittal in the Holyland trial as he told his side of the story on Sunday and Tuesday.
The primary questions he wanted to address related to allegations by the state’s main witness, the late Shmuel Duchner, that he had bribed Olmert to help advance the Holyland real estate project in South Jerusalem by paying around NIS 1.5 million to Olmert’s bureau chief Shula Zaken and his brother Yossi.
As a corollary to the allegations that Olmert asked Duchner to pay NIS 500,000 to Yossi, the former prime minister also had to answer questions about US businessman Morris Talansky (star witness against Olmert in his Jerusalem corruption trial) paying $30,000 to Yossi as well.
For most of the time, Olmert answered well.
The prosecution’s main argument for bribery is that there was no other apparent connection or reason for Duchner to have paid large funds to Zaken and Yossi. One lump sum to Zaken was allegedly as high as NIS 350,000.
But Olmert has no need to provide a reason. He only needs to exploit the principle that if there is any reasonable doubt in the proof against him, he gets off.
Wherever he could, Olmert denied having received bribes categorically, slamming his fist in rage and furiously condemning Duchner as a pathological liar and the prosecution as opportunist.
He accused the prosecution of going after him with weak evidence, including documents which Duchner admitted he forged, simply to try to snag a big fish.
Where he could not deny that funds were paid to Zaken and to his brother, since there is documentary evidence that this occurred, he consistently stated that he had no knowledge of the payments.
His claim not to have known may appear questionable, but that is not enough to get a conviction.
Where Yossi had contradicted himself in ways that could negatively impact on Ehud, he distanced himself from Yossi, said they were estranged, claimed he had no idea why Yossi testified in contradictory ways and pointed out that he had no obligation to represent an estranged brother.
With Talansky, Olmert said he had not known that Talansky gave Yossi money, but that even if he had, it would have been perfectly legal since Talansky, unlike Duchner, was a US citizen with no Israeli business interests and nothing personal to gain from Olmert.
But the ship went off course when Olmert's lawyer, Roi Blechner, who generally has performed well, ignored Judge David Rozen’s repeated suggestions to end his questioning and move on.
Rather than sitting down, having already worked with Olmert to present a strong narrative, Blechner kept asking questions on various side issues to rebut any possible argument that he thought might score points for the prosecution.
Blechner ignored a time-honored slogan of lawyers to avoid “snatching defeat from the jaws of victory.” In other words, if you are winning, just sit back and relax in order not to provide new opportunities to make mistakes, particularly when the judge repeatedly suggests there is no need to continue.
In one series of unnecessary questioning, Blechner indirectly led Rozen himself toward accusing Zaken of lying about whether she got funds from Duchner as a bribe for Olmert or for herself.
In one instance, she told police that Duchner gave her the funds for Olmert, and in another she said it was for her, leading the judge to conclude that both of her statements could not be true.
Thus Olmert had to admit that he had noted the “change” in her testimony, to which Rozen responded, “So you are saying, you agree she lied, but we should excuse her because it was under pressure?” All this was unnecessary. These were not Olmert’s contradictions as much as they were Zaken’s, and they certainly did not need to be the focus of direct examination – when the defense gets to spin everything its way. But it took Olmert off his game and made him appear less sure of his side’s narrative.
Olmert is far from vanquished, but each time he seems to be pulling himself out of this case, his former aid or his brother –and now, one of his lawyers – does something to undermine his chances.