The recent announcement by Morris Talansky's lawyers that their client would not be returning to Israel to complete his cross-examination should not have come as a big shock to anyone involved in the case. Morris, known in Israel as Moshe, is a United States citizen, and his life is centered in the U.S.
According to a letter that State Prosecutor Moshe Lador sent last week to his subordinates, in Talanksy's case there are "different dynamics" that are hard to anticipate, and these may give rise to a "genuine threat" that he will not return to testify, "whether for reasons within his power or for reasons that are not."
Thus the prosecution asked the court to let Talansky be deposed early with regard to the envelopes of cash, which he allegedly gave Ehud Olmert during the latter's tenure as cabinet minister and mayor of Jerusalem. Talansky was deposed before being allowed to leave the country. His cross-examination, which lasted five days, was arranged in coordination with him. What remains now is for the questioning to be completed - if any vital information is indeed still missing.
Amazingly, while a top team of local police and prosecutors prepared themselves, in what appeared to be a meticulous fashion, for Talansky's deposition, the people somehow managed to overlook the simple fact that his testimony here was getting him into trouble with the tax authorities over there. In the process, his right to avoid self-incrimination, as recognized by the U.S. Constitution, was being violated.
One need not be an expert in American law to be aware of the strict policies governing the transfer of funds from the U.S. to other countries, especially to Israel. The only reasonable course of action in the current situation is to reach an understanding between law-enforcement authorities in the U.S. and Israel, to the effect that Talansky's testimony here will not incriminate him back home. Such an agreement is required due to the universal obligation to provide any individual, regardless of his citizenship, with due legal process.
Talansky's American lawyers have only now sounded the alarm - apparently because no such agreement has been reached, and because of the investigation their client faces in the U.S., which may lead to an indictment. The lawyers are advising Talansky not to come to Israel to complete his cross-examination for fear that he will violate his right not to incriminate himself, since various elements in the investigation against him in the U.S. are identical in "many respects" to those in the case for which he is testifying in Israel.
The attorneys' advice falls under the heading of "better late than never." Talansky gave a comprehensive initial deposition before Israel's state prosecutor, and was questioned at length during the cross-examination. It was the prime minister's lawyers who asked that his questioning be completed later, saying that they would accept the risk that he might not return to Israel again.
In light of the problematic situation that has arisen, the prosecution - which was widely and unfairly criticized - was evidently right when it asked that Talansky be deposed in advance, based on a reasonable chance that he would not be available to testify on demand, due to the understanding "that his testimony is central to possible legal proceedings against his friend, the incumbent prime minister," as Lador said to the prosecutors.
The blame for the current entanglement is shared by all involved: the prosecution, for failing to give the defense team the relevant investigation materials that would have made it possible to complete the cross-examination in time in July; the prime minister's lawyers, for being unable, as they claim, to get all the answers they needed during the five days of cross-examination; and the District Court in Jerusalem, for allowing Talansky to be questioned on many irrelevant issues, which would not have been permitted in other cases, for letting him leave the country and for granting a delay for the completion of his cross-examination.
Be that as it may, even if no arrangement is reached to allow the completion of Talansky's questioning, there is no reason to "eulogize" his testimony, as "a legal source close to the prime minister" was quick to do. The Supreme Court has ruled that the absence of cross-examination does not itself suffice to damage the probative value of an early deposition, and in any case it is clear that it is not enough to render the state's questioning null and void. The probative value of Talansky's interrogation by the state will diminish considerably only in a situation where the failure to cross-examine leads to an injustice against the defendant or suspect.
In any case, even if the cross-examination is not completed, the prosecution and attorney general must make a decision on the "cash envelopes" affair without unnecessary delay. The same is true of the other investigations against the prime minister, which cannot be allowed to drag on any longer. The public's diminishing faith in the prosecution, which rightly worries the state prosecutor, is not only the result of mistakes made in particular cases or of the reluctance to have such errors subjected to external review. It is also the result of the inappropriate use of power, which means, among other things, inappropriate delays in both large and small cases.
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