Wednesday, April 1, 2015

The Trials of Ehud Olmert: What Happened to Double Jeopardy?

Ehud Olmert in Jerusalem Court, March 30, 2015
Fox News photo
Ehud Olmert was back in the news this week.  On Monday he was convicted in a Jerusalem courtroom for unlawfully accepting money from a U.S. supporter over a period of years: the Talansky affair, for which he was previously tried and acquitted in 2012. Curiously, no one is talking of double jeopardy, the idea that you can't be put on trial twice for the same thing.  It appears that double jeopardy, a fundamental principal of western law dating back to the code of Hammurabi, may not have a solid footing in Israel. Perhaps they've become too enamoured of military justice.  But I anticipate that double jeopardy will be a key issue on appeal of Olmert's re-trial and conviction in the Talansky Affair.  

Olmert and the Peace Process

Olmert became Israel's acting Prime Minister on January 4, 2006, the day Ariel Sharon slipped into a coma and away from the Israeli political scene. During his three year tenure as Prime Minister and head of Kadima, Olmert came closer than any other post-1967 leader to accepting a two-state formula. Yet, by the time he made his proposal in the fall of 2008, he was politically dead. The peace that Olmert offered was stillborn, entangled by personal corruption charges against him.

Here is Noam Sheizaf, writing in May 2014: 
Olmert was indeed the prime minister who came closest to adopting a full two-state formula, in practice, rather than as lip service. In September 2008 he presented Mahmoud Abbas with the most far-reaching map drawn by an Israeli prime minister: 94 percent of the West Bank and Gaza were to be made into the Palestinian state, with nearly 1:1 land swaps on the remaining territory. But Olmert was already history due to his legal troubles. The Bush administration recommended Abbas not sign, as did Tzipi Livni, who was certain she was about to become the next prime minister. Olmert himself used Ehud Barak’s questionable strategy from the failed Camp David summit by trying to force Abbas with threats and promises into signing on the spot on his balcony in Jerusalem. Abbas wanted to take the maps back to his team, Olmert refused, and pretty soon all that remained was another story in the Israeli myth of “Palestinian rejectionism.”

Olmert and Corruption Charges

Since the 1980's Olmert has been plagued by a long string of corruption allegations, investigations,  and indictments.  The following list is not exhaustive: 
  1. In March 2006 the state comptroller investigated allegations that Olmer purchased his home in Jerusalem below fair market value ($300,000 on a $1.2 million purchase). A criminal investigation on this purchase was launched in September 2007--and closed due to lack of evidence in 2009.  
  2. In January 2007 the State Prosecutor ordered a criminal investigation into Olmert on allegations that Olmert improperly attempted to stear the sale of a controlling interest of Leumi Bank (partially state owned) to a friend.  This investigation was closed in December 2008 for lack of evidence.  
  3. In October 2009, the State Attorney General ordered a criminal investigation into whether Olmert had improperly appointed associates from the Likud party to various government posts. 
  4. The Talansky Affair:  In May 2008 the State Prosecutor initiated an investigation into payments Olmert had received from an American businessman, Richard Talansky, over a period of 15 years.  It was alleged that some of these funds were delivered as cash payments in envelopes, that Olmert maintained the funds in a safe in his law office, and that he may have spent some of the funds for personal use.  This resulted in an indictment in March 2009, and a "not guilty"verdict after a trial in 2012.  [More on this below]
  5. In November 2008 the State Attorney General filed an indictment against Olmert accusing him of profiting illegally from duplicate reimbursements from speaking engagements arranged by "Rishon Tours." This too resulted in a trial and a "not guilty" in 2012. 
  6. At the trial in 2012, Olmert was convicted of one count of breach of trust in connection with another real estate development deal. 
  7. A year ago, on March 31, 2014, Olmert was convicted of two counts of bribery to facilitate approvals for the Holyland Development in West Jerusalem.  He was sentenced to six years in prison, but appeals are still pending.
Holyland Development, Jerusalem (photo Nati Shohat) 

The "Talansky" Trial and Re-Trial 

On July 10, 2012 Olmert was acquitted of all charges in the Talansky affair. This is the matter that forced Olmert to resign as prime minister. After his acquittal, the prosecutors implicated one of Olmert's confidants, entered into a plea bargain with her, and then reasserted the same charges against Olmert with a new panel of judges (they don't have jury trials in Israel) based on this new evidence. On Monday, the prosecutors successfully obtained a conviction from a Jerusalem court. 

Here is the coverage from Daniel Estrin/AP:
Olmert, 69, was acquitted in 2012 of a series of charges that included accepting cash-stuffed envelopes from U.S. businessman Morris Talansky when Olmert was mayor of Jerusalem and a Cabinet minister. Olmert was found to have received about $600,000 from Talansky during his term as mayor, and additional amounts in cash during his term as a Cabinet minister, but a court did not find evidence the money had been used for unlawful personal reasons or illegal campaign financing.

Talansky, an Orthodox Jew from New York's Long Island, had testified the money was spent on expensive cigars, first-class travel and luxury hotels, while insisting he received nothing in return. 
The acquittal on the most serious charges at the time was seen as a major victory for Olmert, who denied being corrupt. He was convicted only on a lesser charge of breach of trust for steering job appointments and contracts to clients of a business partner, and it raised hopes for his political comeback. 
But Olmert's former office manager and confidant Shula Zaken later became a state's witness, offering diary entries and tape recordings of conversations with Olmert about illicitly receiving cash, leading to a retrial. In the recordings, Olmert is heard telling Zaken not to testify in the first trial so she would not incriminate him. 
On Monday, a panel of judges at the Jerusalem District Court ruled that Olmert had accepted $153,950 from Talansky when he was a Cabinet minister, with the money kept hidden in a safe by an Olmert aide. 
The judges concluded that Olmert gave Zaken part of that money in exchange for her loyalty, and used the money for his own personal use without reporting it according to law. They convicted him on a serious charge of illicitly receiving money, as well as charges of fraud and breach of trust. 
Olmert's lawyer, Eyal Rozovsky, said Olmert's legal team was "of course very disappointed" by the ruling and will likely appeal.

Double Jeopardy

Unless there is something missing from the reporting, it seems that Olmert was tried twice for the exact same charges arising out of the Talansky Affair.  The conviction on Monday followed an acquittal of those same charges in 2012. Double jeopardy, therefore, is likely to be a key issue on appeal.

The Greek gods in Aeschylus's Orestean Trilogy concluded that a trial was a better way to resolve conflict and achieve justice than blood feuds.  Here is an interesting description of the issue by George C. Thomas, a professor at Rutgers School of Law:
Part of the reason to replace the blood feud with a trial is to permit the cycle of revenge to end, to provide a final outcome to a dispute, and to create repose in the litigants. But to protect the finality of outcomes, there must exist a principle forbidding a retrial of the same case or the same issue. 
A double jeopardy principle has been part of Western legal systems for thousands of years. The Code of Hammurabi, for example, in the nineteenth century B.C.E. sought to prohibit judges from changing judgments (law 15). The Greek philosopher Demosthenes said in 355 B.C.E. that the "laws forbid the same man to be tried twice on the same issue." In the Roman Republic, an acquittal could not be appealed. St. Jerome in A.D. 391 interpreted a passage from the Old Testament to mean that not even God judges twice for the same act. 
The English common law principle that there should be one punishment for one crime first manifested itself during the confrontation between King Henry II and St. Thomas Becket that occurred between 1164 and 1170. ... [T]oday, over eight hundred years later, courts still condemn double punishment. 
...  This "universal maxim" led directly to the Fifth Amendment double jeopardy clause [in the U.S. Constitution], which ... provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."
In 1957 in Greene v. U.S., the Supreme Court provided the following rationale of the rule: "The underlying idea... is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."  We should note that the prohibition was not held to apply to state governments until 1969 (Benton v. Maryland).

The Olmert case illustrates another reason for the double jeopardy rule.  I have no idea of the merits of the various investigations undertaken against Olmert.  I do note that more than half of the investigations outlined above did not result in any type of conviction. It raises the possibility that some of these investigations were politically motivated. The pursuit of investigations for political motives is a form of corruption. Since the offices of police, prosecutor, and executive who make the difficult decisions whether, and how vigorously to pursue any investigation are all political actors, aligned with political interests, it is dangerous to provide such actors multiple bites at the apple--to maintain prosecutions even after an acquittal. Not only is it unfair to defendants; it fosters corruption.

Sheldon Adelson's pro-Netanyahu newspaper Israel Hayom touts the verdict on re-trial as "a badge of honor for the rule of law." I don't think so.  If we look back on all the various investigations and lawsuits against the Clintons during the Clinton Presidency, irrespective of merit, they were all heavily tainted with political motivations.  We do not want political actors to have more than one bite at the apple to prove wrongdoing by their political opponents. Prosecutors should not be able to present the same case to multiple panels of judges--as long as it takes to get a conviction. In this case, the "new evidence" against Olmert came from a plea bargain with an Olmert confidant--i.e. a bribe that shielded her from threatened prosecution in exchange for testimony.  This is an integral part of any justice system--but it's not the finest aspect of any justice system. I would not call this conviction a "badge of honor." A stain seems more accurate.

The Law of Double Jeopardy in Israel

In a book tracing the influence of Jewish law on American Constitutional amendments, Roberto  Aron proudly points to the Mishna (edited ca 200 CE) as an early source for the double jeopardy rule in the Fifth Amendment.  The present state of the law of double jeopardy in Israel, however, is not clear. 

At Cardozo law school they have a project (Versa) that translates important Israeli Supreme Court decisions into English. A search for "double jeopardy" brings up the case of Manning v. Attorney General (1993) CrimFH 532/93. It appears that the law of double jeopardy is not set forth in any statute in Israel, and no case has been decided that applied the rule.  In Manning the court discussed double jeopardy in the context of an extradition request.  Justice Goldberg, who delivered the opinion said that "Even though double jeopardy is not mentioned expressly in the Criminal Procedure law [and no case has been decided where a defendant made successful use of it] it is available to every accused in Israel." Justice Dorner, in a short concurring opinion said that the concept of double jeopardy "does not reflect a fundamental principle of our system." 

After this Olmert conviction we may find out. 

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