Patterico's Pontifications

7/28/2010

Blago Lawyer Threatens to Defy Judge’s Order (Then Fails to Follow Through on Threat)

Filed under: General — Patterico @ 6:41 am



The crazy thing is, he may be right:

Closing arguments at the corruption trial of Rod Blagojevich took a sharp detour Monday as one of the former governor’s lawyers all but vowed to defy an order barring him from calling out the prosecution for failing to summon key witnesses to testify.

….

“I’m willing to go to jail for this, your honor,” declared Adam, a lawyer known for courtroom bombast. “I cannot follow your order on this.”

Adam was challenging a ruling by Zagel on Friday that forbid the defense from making what is known as a “missing witness” argument. Blagojevich’s team wants to point out to jurors that government lawyers originally suggested they would call up to 35 witnesses but ended up questioning only 27.

Among those omitted was convicted fundraiser Antoin “Tony” Rezko, who the government claims is at the heart of many of the conspiracies for which Blagojevich is charged. Prosecutors also chose not to call to the stand alleged victims of attempted extortions by the former governor, most significantly former U.S. Rep. Rahm Emanuel, who is now the White House chief of staff.

What Adam hoped to do was telegraph to jurors that prosecutors may have pared down their witness list to keep people off the stand who might have undermined the government’s case.

On Friday, Zagel told the defense he wouldn’t allow the “missing witness” argument because Blagojevich’s lawyers enjoyed subpoena powers and could have called any of the same people to the stand but didn’t do so. Indeed, after months of vowing to mount a vigorous defense, Blagojevich’s lawyers chose at the last minute not to put their client on the stand or present any other witnesses.

It is difficult to assess lawyers’ and judge’s actions in a trial based on media reports, as reporting does not always capture the reality of what is happening in a courtroom. I’m not sure how the prosecution “suggested” they were going to call more witnesses. If the “suggestion” is the appearance of names on a witness list, that is a weak defense argument, as witness lists are always overinclusive. And neither side is required to call all witnesses who might have relevant evidence.

But if the prosecution promised these witnesses, as for example in an opening statement, it is fair comment by the defense, and I can’t imagine a justification for preventing the defense from commenting on the witnesses’ absence.

I have not followed the trial closely enough to know which situation we’re talking about, though I suspect it’s the former. Any input?

P.S. I meant to post this yesterday but ran out of time. Since then, Blago’s attorney has made his final argument, apparently with some flamboyance, and it appears that he did not violate the order. He may have himself an appeal point, though.

9 Responses to “Blago Lawyer Threatens to Defy Judge’s Order (Then Fails to Follow Through on Threat)”

  1. Is Lionel Hutz handling this case, god he’s embarassing

    ian cormac (5b70b3)

  2. You’re the law expert, but after having watched a parade of former Federal and high – profile defense experts and jury consultants endlessly pontificate on this trial over the past few months, here’s what I think I know:

    – the defense may have a basis to appeal regarding the prosecution’s inclusion of Blago’s credit card charges;

    – Blago’s likely to be convicted on at least one count; lying to the FBI when he flatly stated that he had built up a “Chinese Wall” between himself and his political fundraisers (the tapes definitely prove otherwise, IMHO);

    – Blago may be doomed by the fact that his defense council stated unequivocally during opening statements that their client would absolutely testify against all of the charges, and that Blago never shut the f-ck up about that reality over the past year and a half;

    – although the “honest services clause” that was used to convict former Gov. Ryan has been severely watered down by the Supreme Court, the tapes and numerous former aide’s testimonies seriously harm Blago’s prior claims of competent performance while in office. Namely, while he was forever bragging in public about “how hard he was working for the people of IL,” in fact he was rarely in the office for more than eight hours a week, preferring instead to spending countless hours on the phone attempting to shake down potential campaign contributors for more money;

    – the specific tape of Blago’s alleged attempt to extort payment from the Children’s Hospital in return for lawfully promised taxpayer monies. Only someone with half a brain could conclude that the tapes in question prove otherwise.

    Just my two cents, but one of the tapes may play a bigger role than anyone could have imagined – the one where Blago screeches at the IL citizens who have failed to pay appropriate fealty to his awesomeness – the one where he states that they can all go f-ck themselves. Couple that gem with the overall disgust and dismay over what has happened to this state (and city and county) government over the past generations and the former Governor may be facing a tsumami of epic proportions (or at least that’s my fervent hope).

    Dmac (d61c0d)

  3. KISS: Keep It Simple, Stupid

    If he sticks to strictly Governor Dead Meat (in Kass’s inimitable phrase) he’s got an open-and-shut. If he starts digging around with Rezko, Rahm and Barry, he muddies the waters and confuses the sub-genius jury.

    Go for the lock. A good decision.

    Frank Drebbin (8096f2)

  4. I am stunned that a defense lawyer is enjoined from arguing/commenting on any aspect whatsoever of the State’s opening. If the State opens a door, the defense has got to be allowed the privilege of walking through. Whether ’tis folly to do so is another matter entirely.

    Ed from SFV (cd955f)

  5. Ed, remember these things are more theater than justice; more about the game than truth; more about the arcane than common sense. At least, that is what my time in the jury pool proved to me in atomic powered Spades.

    quasimodo (4af144)

  6. i think there is a strategic logic to not mentioning it, though. it might lead the jurors to wonder why Blago himself didn’t take the stand.

    Of course they aren’t supposed to consider that, in what i consider to be a dubious reading of the 5th Amend. Privilege, but oh well.

    Aaron Worthing (A.W.) (f97997)

  7. It is difficult to assess lawyers’ and judge’s actions in a trial based on media reports, as reporting does not always capture the reality of what is happening in a courtroom

    It’s equally difficult to assess court opinions based on media reports, as the reports typically fail to provide anything approaching a reasonable description of the arguments.

    aphrael (e0cdc9)

  8. The Chicago Tribune reports the case went to the jury around Noon today, and thereafter father-and-son defense counsel spoke to the press:

    The younger Adam already had been holding back emotion as he talked about his daughter, who was born premature, and how he credited Rod Blagojevich’s health-care initiatives for getting the child the care she needed.

    and

    The younger Adam also thanked the team of young lawyers that was assembled about a year ago to begin processing the mountains of evidence in the case.

    His father said the team was assembled with one particular rule in mind: no former assistant U.S. attorneys were allowed to be part of it.

    “They’re defeatist,” said the elder Adam, telling reporters that some former prosecutors were telling him he would lose because of the undercover recordings even before the defense team had listened to them.

    DRJ (d43dcd)

  9. I don’t buy the idea that the defense could have subpoenaed the witnesses so failure to do so puts the matter beyond comment. That same argument was tried regarding lab results in Melendez-Diaz and the then sitting SCOTUS didn’t bite.

    Soronel Haetir (8e703e)


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