Report from Chicago

 People you meet in court: One day while I was sitting in the gallery, watching the trial, I stabbed myself in the eye with my glasses. Yes, I’m clumsy. Small motor skills were never my forte. And besides suddenly jumping and scaring the people around me, it was no big deal. The following day, a man sitting next to me said he noticed I had a subconjunctival hemorrhage, and not to worry about it as it ought to clear up in seven to ten days. A couple days later, I ran into him again, and he said that it looked like my eye was getting better. And then he told me that he was a retired ophthalmologist. This guy had missed a few days but had been coming since the beginning of the trial. He was one of four people who had shown me his free CTA senior’s pass, courtesy of the man on trial.

A good shot: One of the contract lawyers sits at a table perpendicular to the defense table, his usual profession is typically a sports agent, but as a friend of Sam Adam Jr.he ended up working on this trial. He has a penchant for young and pretty woman who happen to be in the first row, and one day secured a pass for a lady friend of his. So one day, during Rob Blagojevich’s testimony—something that might have been a crucial point in the strategy of brother Rod Blagojevich’s defense—this guy was working his iphone. Was he bringing up the latest motion to go over? Was he looking up case law? Was he contacting witnesses? Nope. He was playing golf. Rob Blagojevich is twisting in the wind, and there’s a beautiful shot up by the green. He got all of it this time.

Fortified for court: On the last day of the trial, when the defense rested, a man who said he was a reporter got thrown out of the courthouse because he was drunk. This same guy was there a few days earlier and he was also noticeably drunk—the smell, slurring words, the usual suspects. So when he came on the last day, it was particularly peculiar since he had to stand in line with the rest of us from 5:30 am. In court, he made the mistake of tripping over a US Marshal on the way out the door and the Marshal said, “You a little drunk there, guy?” After all, it was 9:30 in the morning, almost happy hour. The Marshall pointed him out to one of his colleagues and he wasn’t seen again.

The FBI as Go-fers: This is the only trial that I’ve been at where the attending FBI Special Agents have a dual role of being go-fers for the DOJ. Every morning, big carts of documents and files are pushed into the court by the FBI agents. Did they learn that at the academy? And then they actually go out and fill the water pitchers to arrange on the tables. I don’t know if other districts are like this, but in other courthouses where I have been, these jobs are usually handled by the junior attorneys or often the paralegals that work with the prosecution.

The Intern: On the last day of trial, the non-media riff-raff like myself gathered outside at about 5:30 in the morning. A couple hours later, we were queued up on the twenty-fifth floor, waiting for our passes, when The Intern showed up. She was this young, cute determined girl with strappy shoes and a short skirt, and she jumped the entire line. Even for the usually amiable Chicagoans, this was a bit much, especially for the sleepy-eyed people around spot 31 or 32. A stands-off ensued and it was clear she wasn’t going to budge. I correctly surmised she was an intern who was told to secure a pass and was determined to get arrested before she would come back to the boss empty-handed. The boss turned out to be local columnist Carol Marin. (She kept telling the Marshall’s “I’m not going in, I’m just getting a pass for someone). Of course, she and everyone should have known that Marin was going to get in. And she did.

 A funny court:  Speaking of some oddities about the way the trial has been handled, the Marshals have run a pretty tight ship (the media reports that a Wall Street Journal reporter was arrested on Tuesday after he touched a Marsha who had ordered him to return to a press area—I read this story in several places, but not in the Wall Street Journal). The strict security doesn’t bother me much as I just follow the rules and try to do what I set out to do. However, in spite of this tight ship, there are odd lapses and near inconsistencies. We can tweet from the courtroom—which is unusual and I don’t see much harm in it and it is a benefit to many people who have followed the trial via Susan Berger who has made excellent use of her ability to tweet the trial. But there are other things that are more strange: There are sometimes reporters—to be fair or clear—rather big-cheese reporters who sometimes wander around the well of the court, and talk to the attorneys during breaks, so does Patti Blagojevich. At other trials, no one including family is permitted free access to the well of the court, and a reporter would be tackled by US Marshals before he did half of what some of the reporters at this trial do. And then there is the spectacle of Jimmy Breslin who is apparently a friend of the Blagojevich’s. He shows up with all of his swaggering foul-mouthed style, necktie loosely draped over his neck with wild hair flying, appearing through a side door of the courtroom and plopping down on the family bench. My favorite scene, though, with Breslin, is on the last day of the trial, and the second day for him, he’s sitting on the front row bench with a pad flopped open on the defense table, writing—I guess—the Great American aspect of this story.

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Sam Adam Sr. stepped to the podium, facing a bank of cameras and a noisy press pit. Today, he is not in his bright, almost sunny, lime-light loving motif, with his daily “Good morning everybody.” His eyes are hard as he spits out his legal declaration that a defendant has a guaranteed right not to testify in his trial. A couple hours earlier, his client had exercised that right. But there’s more. Now he is yelling at the media, shouting words with a bitter-edged tone, “You media just want a story,” he says loudly. His shouting has the tone of a stinging accusation.

Um…for all the media is and is not—they definitely have their shortcomings as I’ve spent nearly two months experiencing a close-up of the best and worst they have to offer—there’s a problem with the flailing lawyer, the shouted words. For eighteen months, Rod Blagojevich has told everyone who would listen to him and a lot of people who wouldn’t listen or didn’t care, that he is innocent of all the charges, and that he can’t wait to testify in a court of law to that effect from the witness stand. He has promised many, many times that he would proclaim his innocence to the world in a court of law. He not only told people he would do that, but he said that he couldn’t wait for that opportunity. And then to officially consummate his promise, to take it from a put-up-or-shut-up boast to the next level, in opening arguments, his attorney loudly promised the jury that Rod Blagojevich would tell them and the world what happened during his term of office that led some people to think he had committed crimes. Not only did the public and the media come to take him for his word, Judge Zagel believed him too, often referring to when Blagojevich will testify, or saying that much of the defendant’s case will hinge around his testimony (which, in retrospect, was one of several clues to the defense that a midstream change might be in order). So now Sam Adam Sr. yells at the media, saying they’re “just looking for a story.” If Mr. Sam Adam Sr. doesn’t get—after all this time and after all of these assertions—that the defense’s decision not to have Blagojevich testify IS the story, then Rod Blagojevich may be in even more trouble than we thought. I’m sorry, but it IS the story and all of the yelling and indignation won’t make it otherwise.

The defense rests but some of us stay up

Now let’s look at what might be behind the story, if anything. Perhaps a glance toward those stories the media “just wants,” but often misses while they’re busy chasing down people like the Adams or Rob Blagojevich for sound bites or video clips.

When court convened on the morning of July 21st, and Sheldon Sorosky rose to face the judge, Sam Adam Sr. was lounging back in his captain’s chair, facing the jury box. It was not unusual for the likes-to-be-comfortable Adam Sr. to lean back like this, but this time, as he faced the jury, he was shut off from his colleagues, his back to the defense table. And before Sorosky spoke, Adam Sr. was looking directly at the jurors. Behind him, on the other side of table, sat Sam Adam Jr. He was sitting sullenly, with his head down, not looking toward the jury, or the judge, or Sorosky, or his client. He was just slumped over in his chair, staring at the desk, his jaw tight. Was the jury watching?

At the end of the table, Sorosky rose and said, “Your honor, the defense rests.” And save for some mop-up evidence the prosecution offered, the trial was over.

A quick review of the story that gave cover for the events that had transpired in the previous twenty-four hours, was that dissension had risen between the Adams—father and son—and Senior won out, making the decision that Rod Blagojevich would not testify in his own defense. Some hours later, he would indignantly be yelling at the press about The Decision, but what else might have happened that night? It is likely, as I wrote a couple of days ago, that Blagojevich’s mock examinations were not going well. Along with this, many of the charges were not necessarily sure-things for the prosecution—but depending on how the jury would see them—could go either way, and it could have been determined—probably was determined—that it was as good as it was going to get. As it stands right now, the defense could win some, most, or all of the counts, but if Blagojevich performed badly on the stand—and by then they had seen the machine-like methodology of the prosecution which was able to rattle a very stoic and clear-headed Rob Blagojevich—many of the charges they might be winning could fall into the losing column, and because of the interlinked nature of the indictment, a few losses could mushroom into a sweep in accordance with jury psychology. And although Sam Adam Jr. may be young and not particularly experienced—particularly in federal court—and he might be facing long odds as his style really doesn’t play well  in Zagel’s courtroom, he may have read the writing on the wall. So another story was concocted that might allow all sides to win. Let’s manufacture dissension.  Let’s say that Adam Jr. really wanted Blagojevich to testify—so much so he is barely on speaking terms with his father—and let’s let Adam Sr. be the heavy who forced Junior to acquiesce to this new strategy. Everybody wins:  Sam Adam Jr. never broke his promise…heck he wants to have Rod testify today. It was just because of his heavy-handed old man. Rod didn’t break his promise. Heck he still wants to testify, but Senior—with his 49 years in the bar—is pretty persuasive and it just broke Rod’s heart when he told him his testimony wasn’t necessary. And even Adam Sr. really kind of wanted Rod to testify, after all, his boy promised the jury. But the prosecution’s case is so weak, why bother. They didn’t prove their case so there’s nothing for Rod to defend. Remember, if Sam Adam Jr. is anything, he is a showman. And unlike some attorneys who would call this assessment fighting words—he doesn’t mind people viewing what he does as a performance. Professionalism would generally dictate that the attorneys maintain a unified front, so the admission that there was a deep riff in the team is rather startling. That is…unless it is just part of the show.

Jason, the man who has witnessed most of the trial from his wheelchair, asked Sam Adam Jr. if he and his father might want to go to dinner with him when this whole thing is over. Adam Jr. said, “Well you know my father and I aren’t seeing eye-to-eye right now.” That’s the story anyway. And didn’t someone say something about looking for a story?

[More tomorrow as I get ready to wrap this project up. Adam Sr. could remember, I suppose, that most people prefer to believe the stories the media generates…]

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It is over.
Rod Blagojevich, stepping to the podium, looking very small, ill suited: “It is my decision, on advice of my attorneys, to not testify in this trial.”

Closing arguments on Monday.

[A full entry later…today.]

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Today, in the something-for-everyone trial, there were swirling rumors, a feisty defendant, a weary judge, and a rowdy mob. I’ve said all along that in the barely dawn hours outside of the Dirksen Federal Building on Dearborn, the day would come when a clamoring mob would show up at the door and demand to see their hero or villain or historical icon or guy-they-knew-from-the-neighborhood or this year’s indicted governor. Or maybe catching a trial is something to do on a hot day in July. And today was the day.

The 5:20 train got me there just in time to snag one of the thirty or so coveted seats in the courtroom, and all day, a siege-like mentality took over at the courthouse. I heard one of the US Marshalls say there was a guy yesterday trying to sell one of the coveted courtroom tickets in the lobby. And besides the public, there has been a media crush, with correspondents—often with some sort of sense of entitlement—showing up in the nick of time to cover the story. But we trudge on.

Inside the courtroom, Rob Blagojevich spent the day on the stand doing battle with Christopher Niewoehner in which he appeared to hold his own. It might have been mostly a stand-off as you only had to squint a little and both sides of the picture were clearly visible. For instance, there was a long exchange over whether or not Rob Blagojevich really wanted to talk to his brother when he called and they discussed setting up a meeting with the guy who had promised as much as $6 million in “accelerated fundraising” if Jesse Jackson Jr. was appointed to the vacant senate seat. This was an important call as the call itself is a charge against Rob Blagojevich. On the one hand, it could easily have looked like the prosecutor was mercilessly beating up on Rob on what might be a fairly trivial matter. There was a withering barrage laid down on how many times Rob called Rod, what numbers he used, and how long he tried to call, which was all supposed to mean that he really wanted to talk to his brother about the urgent business of selling a senate seat. But on the other hand, Rob Blagojevich’s defense went to great pains to show that this call was not that important and that he wanted to spend time with his wife without being annoyed by the Governor’s problems. Indeed, this was the reason they called Julie Blagojevich to the stand, to help make this point. And as it turned out,  Rob was incessantly speed dialing Rod, calling him at three different numbers, and leaving several voice mails. It looked like Rob Blagojevich was lying about this point. The defense even made a chart of his calls but neglected to put all of Rob’s calls on this demonstrative exhibit.

I don’t want to beat the examination of Rob Blagojevich to death because there are bigger issues looming on the horizon. I have always believed that Rob Blagojevich could possibly be convicted if the jury is convinced that brother Rod is guilty of most or all the counts. However, from a juror’s point of view it looks from the gallery like reasonable doubt abounds, for several reasons:

1. The jurors are people as are we all, and we spend much time on the telephone in the course of our lives and our work, and sometimes people say things that might be wrong or not that savory, and we don’t generally call the cops or have major confrontations with our friends and associates.  It is likely that some of the jurors are wondering what it would be like if people were listening in on all of our calls, and what conclusions they might be able to draw from our conversations;


2. Rob Blagojevich appears to be a decent man who got caught up in the schemes of his brother who was in the torturous death throes of his political career. Again, I think the jury will see themselves in the testimony and think what if my idiot brother called me and asked me to help him out, and then dropped me into something that was out-of-control;


3. Although it looks like he may have told some lies about certain issues that were not substantially germane to the charges, the jury may again conclude that the gaps in his story were more about his fear and consternation of being investigated and indicted and of wanting his actions to look a little more definitively honest than they would have otherwise been cast by the government.

As dramatic as having one of the two defendant’s cases wrap up today was, it was not nearly the biggest story of the day. There were various rumors floating around the courthouse today: Some said a deal was in the works, some rumors involved the would-he or wouldn’t-he nature of Blagojevich testifying in his own defense.

Some background of this situation is in order. The first thing that might be considered, and it has long been somewhat a source of interest to me, is how well Rod Blagojevich’s defense team has been able to work with their client. I have witnessed a couple high profile cases, which generally involved charismatic leaders, and the issue that always arises in these cases is how much does the strong personality of the defendant have an influence on the way his or her attorney will run the case. Typically, the attorneys will take charge and although they will ask for and receive input from the defendant as needed, they will want that person—no matter how charismatic or dynamic—to take a seat and let the defense try to win the case. In the matter of Blagojevich, however, I have never seen a defendant who appears to be so intimately involved in his own defense. He is constantly whispering suggestions and passing notes to his lawyers, who appear to be taking his advice as if he is another attorney at the table (I am aware, of course, that Blagojevich IS a lawyer, but I have been told by members of the legal community that an attorney meddling in his own defense can be just as troublesome and distracting as a lay-client trying to do the same thing).

So a question has always been, is this proactive defendant helping or hurting his legal team? What about his wife? A related question to this problem is what effect, if any, do the antics and uncontrollable nature of Rod Blagojevich have on his trial? In a state-of- mind defense where the governor’s state-of-mind was somewhat foolish, it might work pretty well. But the tightrope they would have to walk, if they put Rod Blagojevich on the stand, is he would have to play the fool character well enough to emphasize the point they are trying to make while at times trying to give logical explanations for his actions that may not look foolish enough for the state-of-mind they’re going for. Do you see the problem? Frequently, in the trial, a witness would be asked to interpret statement the governor made on taped calls. He would often say “I don’t know what he meant by that,” and sometimes Judge Zagel would say the witness doesn’t have to try to interpret what was going on in Rod Blagojevich’s mind because he would be able to tell them for himself, from the witness stand. Same problem. If he testifies, he would have to satisfy the delusional nature of the state-of-mind defense while trying to offer plausible and clear explanations about what he meant. So they’re kind of in a pickle and it is all complicated by the fact that they promised the jury that Blagojevich would testify, in opening arguments.

As of this evening, there are reports, confirmed by members of the defense—to the extent that we can believe them—that there is dissension among the lawyers as to whether or not Rod should testify. Apparently, Sam Adam Sr. believes that he should not testify, because (he says) the prosecution has not proved their case and Adam Jr. believes that he should testify because they promised the jury that he would, in opening arguments.

An analysis of the situation is to look at the case  as a whole. Sam Adam Sr. may not be right that the prosecution hasn’t proved anything, but their problem may be that he thinks putting Rod Blagojevich on the stand would not make their case any stronger than it is right now. I am told by my legal consultant—an attorney with some experience in defending these kinds of cases—that throughout the trial they will run mock prosecution examinations of the defendant in order to shape tactical strategy and perhaps prepare the defendant to testify. It is likely they did some dry runs  with Rod Blagojevich and it could be surmised that he did not fare well. So if there really is an argument in the Blagojevich camp, what will they do? If Adam Sr. wins, and they decide to take Rod Blagojevich off the witness stand, they might be obligated to make some explanations about why they broke their promise, during closing arguments. One explanation they might make is to tell the jury that the prosecution had promised a long case, with many witnesses—the jury will know this because Judge Zagel told them it would be at least a four month trial during the jury selection process—but according to the defense spin, they realized that they weren’t getting anywhere with their witnesses, so they decided to rest. This prevented the defense from putting on their planned case, so they [reluctantly] took Rod off of the stand. They might also say that they were all ready to put Rod Blagojevich on the stand, that he so much wanted to testify, that he really wanted his chance to tell his side of the story, but when they heard how thin the prosecution’s case was, and how they really hadn’t proved a thing, they decided that for the good of everyone involved—including the stress on his family—that they walk away and leave the good people of the jury to bring back the expected not-guilty verdict.

It might be treacherous for Blagojevich not to testify without giving some explanation, but it would open up another minefield for the defense. It is this danger that is probably at the heart of the decision the defense will make. Here’s the problem: By rule and by our constitution, the prosecution is barred from making any kind of reference to a defendant not testifying in his own defense, nor can the prosecution use the fact that a defendant failed to testify against him or her. But there is an exception. I again checked with my legal sources on this, and was told that just like in other testimony, there is an open-door rule for using a defendant’s failure to testify against him or her. My source said that if the defense offers an explanation, then [the failure to testify] is fair game.

There are people who have come to see Blagojevich squirm on the witness stand. For them, if he doesn’t testify, they might draw some pleasure from imagining what Rod and his team are going through tonight, having realized they painted themselves in a corner. There are also people who are Blagojevich supporters who might feel that they have been deprived from seeing their champion stick it to the government from the witness stand. They too can be comforted in knowing that focus scenarios have probably shown that keeping him off the stand will prevent a last ditch embarrassing debacle as a coup de grace of a once promising political career.

More tomorrow: I have to wrap this up as I have a 4-something train to catch and a mob to join…

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The defense did not score a clear knock-out punch today when Rob Blagojevich took the stand. There were times when he sounded pretty good, where his unequivocal denials seemed to come from conviction and resonated well. But there were some definite and well-defined problems.

First, in a general sense, whereas the know-nothing defense might work for Rod, it is not likely to be very effective for brother Rob. Through phone calls and testimony, we’ve heard that Governor Blagojevich was often an absentee leader, that he would be given to angry rants, and that he often appeared to be delusional about himself, his office and his position in the political arena. But with Rob, we have learned that he ran a bank, that he commanded hundreds of men in his over twenty years of military service, that he was the CEO of a securities firm—where he was tasked with cleaning up ethical breaches—and that he built his own successful real estate business. He was also on the Boards of the American Red Cross and an offshoot branch of the YMCA that develops programs for under-privileged kids.

With this background and its many inherent competencies, it is difficult to believe that he came to work for Rod Blagojevich as his head fundraiser, and that he never had any idea of what kind of legislative initiatives Rod Blagojevich was involved in, and what connections the various (fundraising) contacts he was supplied with had with the administration. His denials of wrong-doing may possibly be true—only he and Rod and some of the cooperating witnesses would know for sure—but it is simply not plausible that this man of great means and ability ran the fundraising operation as some kind of underling flunkey in the corner of a boiler room. But that is what his testimony would have the jury believe.

There was a second problem, which had the aura of a big fib being told in the courtroom today. Maybe the jury won’t remember—there’ve been a lot of names and activities to sort out—but Rob said that the Governor made “a deliberate effort” to keep him separate from state politics. According to his testimony, Rob was told, “We don’t mix fundraising and government.”

Rob Blagojevich was officially the head of Friends of Blagojevich (FOB). Do you think the jury might remember someone else who was the head of the governor’s fund raising organization? Perhaps a guy named Chris Kelly. Via previous testimony, Kelly was listed as being present in many, many meetings, where everything was discussed, from political agendas to board appointments to fundraising. Did Rod Blagojevich make a fundamental change in policy before brother Rob came on board? Did he say, “We don’t mix government and politics anymore?” It appears to be a major flaw in Rob Blagojevich’s testimony that undermines the general veracity of his appearance on the stand.

And finally, while admittedly nervous on the witness stand, some of his testimony sounded hedged. When his attorney, Michael Ettinger, asked him directly about whether he talked to Children’s Memorial Hospital about a pediatric rate increase, he did not confidently say, “No,” or as he sometimes said, “Absolutely not.” But instead, he said, “Not particularly. No.” So he didn’t particularly talk to the Hospital about the rate increase that he said he knew nothing about?

These fundamental problems with Rob Blagojevich’s testimony seemed to get worse as the day wore on, and the magnification of his problems came before the prosecutor showed up to take a crack at him by doing the Sherlock Holmes thing and putting a real magnifying glass on his testimony.

In one call, Rob is talking with great familiarity about Illinois politicians, people who might be candidates for the vacant senate seat. He said, “These are the kinds of people who maneuver through the path of least resistance.” He appears to be telling the Governor, with great passion, that he must be sure to get something for the senate appointment, and he seems to know the relative value of each candidate. So much for the know-nothing-I’m-just-the-fundraising-brother-who-doesn’t-know-anything-about-what-my-other-brother-the-Governor-does defense.

And then came the most disturbing, most damaging call of the day, helpfully played by the defense (they couldn’t help but to play it as the call itself is a charge in the indictment). After going over the situation again which concerns the Indian community, “accelerated fundraising” and Jesse Jackson Jr.—specifically an overture made to the Governor from Raghu Nayak—a long call is played that features the brothers discussing the senate. To digress for a moment, this call was supposed to have been taken by Rob while he was out with his wife at Starbucks, which was the sole reason why Julie Blagojevich was called to the stand in the morning. Julie figures into the yarn because she was homebound when she was in Chicago, and hadn’t gotten out much, so according to the spin, Rob was annoyed that he had to talk to Rod and tried to get him off the call. This story works out pretty good in explaining the beginning of the call, where Rob seems to be saying, “Yup,” “Right and “Uh-huh,” to his brother to move things along, but suddenly, the call turns out to be more substantive and the story kind of falls apart with loquacious brothers chatting on and on about how to sell a senate seat. Particularly, Rob Blagojevich says, on the witness stand rather implausibly, that if the Governor were to appoint Jesse Jackson Jr. to the Senate, he’ll need to “focus” himself on the Black community. And I can’t think of any better way to say it, but that’s kind of stupid. First, it was well-known—even for a supposedly political neophyte like Rob—that Rod had his strongest support in the African American community, and furthermore, doesn’t it make much more sense that he would need to focus on the Black community if he DID NOT pick Jesse Jackson Jr. or any African-American. And then comes this fantastical notion, hatched between the brothers Blagojevich, to tell Nayak—the man who is offering as much as $1.5 million for a Jackson Jr. appointment—that his candidate has been “elevated.”

Why would any sane, rational people, who were not involved in some sort of criminal activity want to meet with this guy to tell him his candidate has been moved up? At some point, Rod says, “If there is tangible political support” they should start showing it now, and Rob Blagojevich, the former banker, CEO of a securities firm and current real estate magnate, said he didn’t know what Rod meant when he said “tangible political support.” The tale ends with the two of them setting up a meeting with the cash-rich Nayak, to give him the good news about Jesse Jackson Jr. but before the meeting comes up it is postponed when it is learned that the  investigation is getting hot and there are reports that lobbyist Wyma might be wearing a wire.

After several hours of listening to a man who probably wished he had never come up from Nashville to help his brother, especially a brother who was being investigated, and he probably also wished he hadn’t done a few things he did during his  short sojourn at the helm of FOB, it was the government’s turn. Christopher Niewoehner came out wielding the Damoclean Sword over the bobbing head of Rob Blagojevich, the same sword Rob had once used to describe what was hanging over his brother. Two and a half years later, it’s still there. The cross-examination is still ongoing, but in the hour that Niewoehner had, he discussed Rob’s one-time ambition of helping his brother out by exchanging a senate seat for Obama making an investigation go away. Although he denied a concrete link between the two things, Rob did not deny that these things were goals of his: Getting maximum value for the senate seat and making an investigation go away. And this is already problematic, because the hired fundraising gun, who supposedly was unaware of the Blagojevich’s administration’s politics and policies, never should have had much thought about the senate seat. But he did.

Rob Blagojevich is still on the stand, and still undergoing a couple of very tough days. So to be fair and to be clear, I am not convinced that Rob Blagojevich wasn’t a good and decent man who got caught up in an era of silliness that began a quick chain-reaction that led to him being on the stand, testifying in his own defense. From the gallery, I don’t think he was entirely honest today about some things he wished he hadn’t done, or wished he hadn’t said, but I’m not sure that his part in this drama wasn’t unavoidable and that he ever had criminal intentions in mind. So having said this, it is not easy to see into the minds of the jury. They could see the obvious gaffes and holes in the story, as pointed out in today’s report, or they could see it as the unavoidable meanderings of a man caught up in something kind of silly. The other option is that it might all hinge on Rod Blagojevich. If the jury thinks he is guilty of most or all crimes, than they may not be inclined to let his brother’s complicity slide, but if they find the Governor not guilty or all or most of the charges, then they’ll probably sweep away brother Rob’s as well.

Memo to Governor Blagojevich (er…Defendant Blagojevich to the prosecutors)

In the case of the USA vs. Richard Scrushy and Don Siegelman, Mr. Scrushy had a lawyer with some rather high-powered credentials. Fred Gray had once defended Martin Luther King Jr. and Rosa Parks, and even the Tuskegee Boys case. It was a resume that played particularly well in Montgomery, Alabama. But in the closing arguments of the case, when his voice rose to a thundering crescendo, he beseeched the jury to return a not-guilty verdict, so Richard Scrushy could say, “Free at last, free at last, thank god almighty, I’m free at last.” The courtroom was silent but there was a resounding thud. Scrushy had been acquitted of a $3 billion fraud in Birmingham, and he was on trial in Montgomery for bribery. Whatever he was—not guilty or guilty or railroaded—and whatever he had become in his late-game return to religious fervor, he was not Martin Luther King Jr. It is unlikely that Martin Luther King Jr. will ever be a good symbol for anything that has fraud or bribery at its core. The courthouses in Birmingham and Montgomery were all about avarice and greed and a corporation that had gone out of control. So it is in Chicago, with Mr. Governor Blagojevich, you are not Mahatma Gandhi, you are not the blacker-than-Obama candidate of the people, you are not Sherlock Holmes or a host of other greater than great characters, but you are perhaps a politician who was pushed a bit into unfamiliar territory, and then reaching in too grand an arc, you rode a wave that ended in this drab brown courtroom. Maybe for that you’re like many of us who once had dreams and somehow became tangled up in our own ambitions. Like most of us, you are not really like those great men as much as you might have wanted to be, but in a world that unraveled too fast, you did the best you could as a human. If you still want to talk to us, to the jury, and you remember your kinship—not with the Ghandi’s, the King’s—but more with the faces in the crowd, you might do alright. People might actually listen to you.

 Did someone say testify?

I never tend to get caught up in the coy back-and-forth of the will-he-or-won’t he testify game that seems to go with every trial I am at. Both sides, and especially the defense, always seem to enjoy toying with the proposition and making the media or sometimes the prosecution snap at their treats like swarming minnows after chum. Before we broke this evening, the defense mentioned to Zagel that they had given him two definite witnesses and two probables, and the judge was informed that this status has not changed. The two definites are John Filan and (I think) and FBI agent. Could the other two be Patti and Rod? Furthermore, the rumblings about a fair trial being raised by Adam Sr. and the defense along with the burgeoning number of mistrials and complaints to Zagel could be parlayed into an excuse to not put Rod on. But on the other hand, Zagel has indicated that he fully expects Rod to testify in order to make the “state of mind” theory being pushed by the defense work. And although I don’t think most of the charges are strong, they are not solidly in the defense-column. Lastly, as indicated above, it does not appear that Rob Blagojevich is helping either brother’s case at the moment.

[ Stay tuned—should get interesting. As always you can watch it here with me…]

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Rod Blagojevich’s attorneys have now filed six motions for a mistrial, and they have yet to put on their defense. To be fair and accurate, it was never likely that Judge Zagel would overrule himself and grant one of these pie-in-the-sky motions, but they were made to preserve the record of their complaints about the way the case has been handled. In particular, if Blagojevich ends up being found guilty of any or all charges, the appellate court will want to know that issues were raised first in the District Court before the case was appealed.

From a distance, and from admittedly lay observations, a close reading of this pack of mistrial motions seems to weaken a potential appeal because they appear to be poorly formed, and this gives them a kind of throwing-stuff-against-the-wall-to-see-what-will-stick quality. If Blagojevich ends up losing, the appellate court will have to sort through a bulky appeal along with some of these poorly-formed arguments which could have a negative effect on the outcome.

Lets take a couple spot looks at these mistrial motions:

The first one, filed on June 22^nd, makes a vague assertion that the judge has prevented the defense from a meaningful cross-examination of various witnesses. In some of the examples it cites, the defense is trying to illicit information about Chris Kelly’s gambling proclivities, or as the motion said, his “interest in horse racing.” This could possibly show that Kelly, as well as Monk, had more than a passing interest in the race track and possibly the horseracing bill. But Zagel knew that Kelly could never be called as a witness so this would only be an attempt to distract the jury about an issue that could not be fully explored in the court.

The defense also cites the following example:

During the cross-examination of Monk, defense counsel asked if Rezko gave you that money because you and he and Chris Kelly were engaged in a conspiracy and he wanted to keep you quiet?‟ The objection was sustained with “you can‟t read somebody‟s mind”.

And they later say this is inconsistent because:

The government consistently asks the question, “What did you understand Defendant Blagojevich [or other witness] to be saying?” or “What did you understand Defendant Blagojevich [or other witness] to mean?” It is inconsistent and unfair to permit the government to engage witnesses in these types of questions while prohibiting defense counsel.

But it is clear that these two examples are markedly different. The first line of questions are designed to ask a witness what he or she thought someone else was thinking, but in  the second example—the one the prosecution used—the question is asking what the witness was thinking. It is clear which one would be permissible and which one would not be.

Other parts of this motion seem to be aimed at the intolerance Judge Zagel has with the introduction of red herring testimony. It is certain that judges—even in federal court—can allow the defense a wider latitude in giving the jury a range of issues to consider, but I’m pretty sure it is well within the trial judge’s discretion to restrict testimony to charges that are actually in the indictment. Proving that a defendant didn’t do something that he has not been charged with is not helpful to the jury, nor is proving that a defendant was responsible for some very good things that aren’t related to the charges.

Two more mistrial motions were filed on June 30^th and there was another one on July 2^nd. These ones were shorter and made unspecified complaints about sustained objections. They contained no specificity nor were any of them supported by any case law citations. From the eyes of a layman sitting in the gallery, and knowing full-well what the defense was trying to accomplish, the objections looked pretty sound and most of them were rather obvious and should have been expected. [And I might want to mention here—for those who might not have been with me from the beginning—that I have no particular stake in either side. I am neither a fan nor a detractor of Rod Blagojevich.]

The mistrial motion filed on July 6^th comes closer to raising substantial and meaningful issues. This motion pertains to the defense’s frustrating cross-examination of FBI Agent Patrick Murphy. The purpose of this witness was to solidify and make a single count: Count 24, the obstruction of justice charge. The problem is that Blagojevich made some statements to the agent that allegedly, through other testimony, turned out to be lies. From the prosecution’s perspective, and perhaps from the perspective of the court, it doesn’t matter what else happened in that FBI interview. The sole issue of both the direct questioning and cross examination had to do with the two statements Blagojevich was supposed to have said and were alleged to have turned out to be lies. The defense maintains that they should have been permitted to ask the agent about questions he didn’t ask or other things that the agent could have found out or investigated when talking to Blagojevich. By overruling the objections, Zagel maintained that that asking about things that didn’t happen or could have happened are irrelevant to the single charge Special Agent Murphy was called to talk about. Count 24 is not a particular nice charge and it may well be not completely fair, but Zagel was probably within his discretion to limit the cross-examination to the matter at hand.

 Rule 29

After the prosecution rested, there was also the Rule 29 motion, asking that all of the charges be dropped because the government had not met the standards of reasonable doubt. Although the motion is supposed to be supported by a memorandum that has yet to be published, it is the shortest Rule 29 motion I have seen. The motion claims that one allegation in the indictment and Santiago proffer was not addressed. I’m not sure what this is, in a quick reading of both documents, but it significantly says “allegation” and not “count,” which may mean it is one of the supporting allegations in the conspiracy counts, possibly the allegation regarding the use of TRS. I’ll wait for the memorandum before commenting on their efforts. But it doesn’t really matter much as I’m pretty sure no counts are currently in jeopardy at this juncture. However, even with the court being peppered by all of the weak mistrial motions and the zero-chance of the Rule 29 motion going anywhere, many of the charges were not that well made during the prosecution’s case, and the defense still has a chance to prevail on some if not most or all of the charges.

The last mistrial motion:
After the government rested, the defense filed their final motion for a mistrial based on a hearing Zagel held to determine how many tapes the defense could play.  After the prosecution played 102 recordings, during their case, the defense originally said they wanted to play 210 recordings. Zagel said that many of the recordings were redundant or simply hearsay (the defendant saying things without being cross-examined when he could say the same things to the court, from the witness stand, with cross-examination) and wanted the defense to cut them down. They then offered to play 38 recordings, but after a hearing, Zagel limited them to playing just 12. The defense maintains, again without any caselaw citations whatsoever, that Zagel’s order violates their Fifth and Sixth Amendment protections (namely due process and [presumably] the compulsory process clause, respectively). More on this as it develops.

 Next

I’ll take a look at the defense’s chances before court reconvenes on Monday. I have finished updating the witness list (link on the right) and I am writing some profiles of some of the witnesses and key players that will be linked to from both the witness list and my significant names chart. These will put some of the players in context with the testimony of the trial. So check back for that and stay tuned as we do the rest of the trial.

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The prosecution’s case came to a quick end, from both the long and short term perspectives. The defense has been doling out some drivel to the media and the court that they expected a much longer case since the prosecution had so many witnesses or because they promised otherwise. In the shorter term, the prosecution’s case ended when Reid Shar swiveled his head to look backward in the general direction of Judge Zagel, and casually said, “We rest.”

I’ve seen this done with much more aplomb and fan faire for the jury, as in “Your honor, at this time the United States of American rests.” But there has been little resemblance to the usual in this courtroom.

After the day was over, and I was riding the train back to wherever home is this week, I read some things about the trial in the Chicago Sun-Times, and I was reminded why I never pay much attention to the attorneys in a case, while the trial is still going on. As reported in the Sun-Times and elsewhere in the electronic media, Sam Adam Sr. said, “A fair trial is destroyed,” and he later explained, “All of a sudden the government cuts their case short…they misled us. They misled the court.” There is a small group who have watched the trial with me here, and I hope they know by now that I’ll let you know when something as dramatic as being denied a fair trial happens. This wasn’t it. Sam Adam Sr. with his 49 years in the Bar knows it, but it sounded pretty good.

The Blagojevich gathering

I was eating breakfast in the courthouse cafeteria and watching the news on the big screen TV. They have two of them, one for news and one for sports. The news was talking about the Barefoot Bandit, the kid who went on a years-long crime spree, breaking into places as well as stealing luxury cars, planes and boats. His old school Bonnie and Clyde motif garnered him over 80,000 Facebook fans. Some guy’s already writing a book about him, which apparently draws heavily on new age sensibilities. He’s not bad, he had a tragic up-bringing, his doctor’s didn’t prescribe him the right medications, he took drugs, he didn’t take drugs, he got lost in The System. It’s the usual suspects. The TV went on about it for awhile and then flitted to another hot topic. And then I refocused, looked around this courthouse: Lawyers, judges, the public, defendants; all milling around. And I wonder what are the new age elements of the Blagojevich trial? What gives this the Barefoot Bandit treatment?

Political corruption is a replenishing resource and there is certainly no shortage of this commodity, but what makes this particular trial so interesting on a national scale? I’ve sat through high profile trials of government and corporate officials, and they never had nearly as much attention—either locally or nationally—as this gathering in Chicago. So what is it about this one?

The problem with the Blagojevich situation is there is an inability to confidently put a thumb on what this thing means or why people care as much as they do. Is it the Obama connection? Is it the drama of the powerful and politically connected father-in-law and the falling out with his daughter and her husband before they spent their days sitting through a trial? But that’s a local thing. There has to be more. What about the Barefoot Bandit qualities: The son of a poor immigrant’s rise and fall in American politics, the meteoric rise and inevitable crash-landing of a populist politician. How about the man who wanted to be all things to all people and the people who loved him for at least a little while? But I look at the people who come to trial—more and more every day—and the swarming media coverage and there’s a Waiting for Godot quality to it all. We don’t really know what this means. None of us do. But we come anyway¹. Is it the fact that we can create this thing that makes it The Sacred—makes this daily gathering happen—that makes Blagojevich the Barefoot Bandit of Illinois?

¹The other day, I overheard one of the Marshalls talking to a member of the public who had come to watch the trial. “Can you write in there,” she said. “Yes. In fact there are people who write pages and pages of notes. I don’t know what they’re doing, but if that’s what they want to do, they have a right to as long as they do not disrupt anything.” I looked down at my case jammed with pads, thought of a dozen more full ones back at the hotel.

The defense

Before testimony began, in the pre-court juryless sessions with the attorneys, Judge Zagel made an interesting comment, making an assessment of the defense’s case. With the government’s case concluded, it is something worth thinking about over this long weekend. He said: “Absent his [Blagojevich’s] testimony, there is no willfulness.” He meant that if the defense will argue that Rod Blagojevich never willfully broke the law, the only way to get there is through his testimony. But this statement might hint at something else. If the defense uses the theory that the Governor did not willfully or intentionally break the law, and if Zagel’s assessment is correct, his testimony might be the only thing the defense should depend upon. I could be wrong about what I am seeing, and I’ve learned to never put a lot of stock on playing guessing games with courtrooms, but for those who are dazzled by revelations of the Secret Service details that will have to accompany star players like Rahm Emanuel or Valerie Jarrett or even Jesse Jackson Jr. I wouldn’t put much stock on these guys actually being called to appear at this trial.

 Before John Wyma took the stand, Sorosky wanted to confer with Zagel and the attorney said, “Open court or at the side?”

Zagel said: “Is it something scandalous?”

A non-cooperating witness who cooperated

 Wyma told about how he went from being Chief-of-Staff for several politicians, including Congressman Rod Blagojevich, to being a lobbyist where he made over a million dollars in his first year. It was a good time to be a lobbyist in the state of Illinois because he got to meet some of the governor’s friends, people like Tony Rezko, Chris Kelly and Stuart Levine.

Wyma was portrayed as the voice of reason in the middle of all of the schemes swirling around the Blagojevich administration. Besides learning from his new friends Tony and Chris that the going rate for getting state business was $50,000, he heard from an old friend, Rahm Emanuel, who told him that he believed an appropriation for a school in his district was being held up because the Governor wouldn’t release it until Emanuel’s brother held a fundraiser. He was also in meetings where hitting up Patrick Magoon, the CEO of Children’s Memorial Hospital, for $25,000, was discussed. The money was to be raised at a fundraiser that Magoon would host. Wyma enumerated why he didn’t think this was a good idea and presumably didn’t think any of the plans were that good. If all of these schemes, which were going on nearly simultaneously, weren’t enough, he got a call from Doug Scofield, who put some strange question to him about setting up a non-profit for Rod Blagojevich to run. And this non-profit would somehow be a pay-off for appointing a senator. Out of breath yet? Wyma might be the Forest Gump of the trial, wandering through all of the various plans and schemes. And not only that, things couldn’t be better when it comes to Wyma and the prosecution’s case, because, he wasn’t charged in any crime and he was the only one in the cast of characters who went into the FBI on his own, to tell stories about Rod Blagojevich.

But before Blagojevich trades in his expensive suits for a prison uniform, and before we size up his cell, there are some problems with the Wyma testimony.

1. Besides hearing some things from Rezko and Kelly, there wasn’t any evidence that he actually did anything or that he has other first hand knowledge of the whole alleged pay-to-play scheme, nor could he provide anything that said this scheme originated in the Governor’s office;


2. Like almost everyone in Rod’s extended circle of advisor’s, Wyma felt he couldn’t get Blagojevich to change his mind once he made it up, so he didn’t bother to call him with Emanuel’s complaints. Likewise, he said that he got a call from either Monk or Blagojevich, about having Emanuel’s brother hold a fundraiser. He didn’t make that call either. Nor did he call the cops. Nor did he question Monk or Blagojevich or whoever it was that called about whether or not this fundraiser was tied to state funds.


3. When Doug Scofield called about setting up a non-profit for Blagojevich and making it a condition of naming a senator, Wyma said he was confused. That makes two of them. Both Scofield and Wyma said they thought it was essentially a hair-brained idea, and both of them played along a little while doing nothing to further a scheme they both thought was kind of idiotic.


4. After helping broker the deal with Children’s Memorial (he was a hired lobbyist of the hospital) he told Blagojevich that the Governor’s idea of trying to get $25,000 from a Magoon hosted fundraiser wasn’t sound. After getting a voice mail from Rob Blagojevich about this fundraiser, Wyma said he became concerned about the aggressiveness of the administration’s fundraising, which supposedly sent the lobbyist to the feds.

The objections came fast and furious for the rest of the day, often yelled with a pointed barb by Carrie Hamilton, accompanied by some body language-hands-on-hips-cold-stare attitude. However, even though most prosecution objections were sustained and there were even some admonitions from Zagel, the defense managed to get a couple of good points in.

This  time the witness, Wyma in this case, went to the cops, sort of. Finally. Finally someone who said that his consciousness was sending out alarms went to the cops. But wait a minute. The defense raised an issue that casts doubts on Wyma’s whistleblower status, on the he’s-the-one-guy-that-went-to-the-cops thing. Near the time that these calls were taking place, John Wyma was subpoenaed about a situation involving a CON (Certificate of Need, state issued certifications necessary for building or improving medical facilities—these things tend to follow me around, as I have sat through an entire trial where CONs were the centerpiece). It turns out Wyma may have—willingly or unwillingly—been involved in a scheme to sell a CON, and this is why his records were subpoenaed. He was scared. There could be charges and one of them might have his name on it, so he ran to the FBI to cooperate as much as he possibly could. Although Wyma may not be charged with any crimes related to the state’s case against Blagojevich, his going to the feds may not have been entirely motivated by his consciousness and his sense of right and wrong. Did you follow that? Will the jury?

Zagel as the prosecutions case comes to an end

In one exchange, Sorosky argued that Wyma was just giving his opinion on someone else’s opinion. Zagel said: “I don’t think it’s a rule that one witness can’t contradict another. We do it all the time in here.”

Later Sorosky characterized Wyma’s cooperation with the government as spying on Blagojevich. Zagel said: “Why don’t you not use the word spy.”

Governor Blagojevich

After lunch, Blagojevich stood facing the gallery with his arm around Sheldon Sorosky. “He’s the next lawyer  up,” Rod Blagojevich said to his audience, “Anybody want to ask him questions?”

Someone in the fourth row shouted, “Where’s our popcorn?”

The former Governor  of Illinois, a populist governor, replied: “I’m not governor anymore.”

The man next to me said, “If he was still governor, we’d get popcorn?” Maybe so. While I write these notes, he’s up there autographing the tickets that gets the public into the trial. Really. I’m not kidding.

The last government witness

The anchor witness, for the prosecution, was Patrick Magoon, CEO of Children’s Memorial Hospital. Presumably, his slot as the last government witness was probably to leave the jury with an emotionally charged image. The underpinnings of the CMH situation, from the government’s perspective, is that the Blagojevich administration, especially Rod and Rob Blagojevich, were so callous that they would put their fundraising goals above the needs of sick children. (They didn’t ask, but I think a better ending would have been with the showing of Blagojevich taking the oath office, which they played in the morning, during Daniel Cain’s testimony.)

Magoon related how after years of hard work, he finally got the state to approve reimbursements of physicians which would result in more sick kids being treated. And while he was still celebrating, he received some messages saying that Blagojevich would like him to host a fundraiser and that they were counting on him for $25.000. Rob called to make the  request, and an offended Magoon refused to take further calls, but got voice messages.

Adam Jr.’s cross-examination was choppy and broken up by objections and admonitions from Zagel, but his message got through. Neither Rob nor Rod Blagojevich ever told Magoon that a fundraiser was expected in order to get the money. The money was committed. There was never any information or even a suggestion to Magoon that it had been recommitted, or was being held up until a contribution was received.

At one time, Zagel was so annoyed that he told Adam that, “If you continue to violate my order, I’ll give you a time limit.” And it appeared that Adam Jr. didn’t understand what he meant. The day before, Zagel had explained that if the attorneys ask questions that contain a fact not in evidence, he will always sustain objections. The reason why Adam Jr. didn’t get this very well, and continued to do it, is that this kind of questioning is very much a part of his style. The defense will have to choose wisely as they embark on their defense. Toward the end of the cross, Zagel seemed almost at the end of his rope. He said: “Objection sustained. Would you wrap this up please.” He did and the prosecution rested.

See ya
In the near empty courtroom, I was the last one out of my row. Rod Blagojevich said cheerfully, “See you next week.” Stop by the site and we’ll watch it together.

The witness list has been updated—in the link on the right, and various additions will be made while the court is out of session until the defense begins its case next Monday. So check back frequently because there’ll be lots of updates…]

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This afternoon, many of the players in the case received new titles. Chief-of-Staff John Harris became Attorney John Harris, Deputy Governor Greenlee became Attorney Bob Greenlee. And whereas most of these attorneys had little or no experience in actually practicing law—certainly not criminal law—at least the defense was closer when they referred to Chief Counsel Quinlan as Attorney Bill Quinlan. If Chief-of-Staff Lon Monk had come up in Greenlee’s testimony, he could have made it a quartet, and been referred to as Attorney Lon Monk. The defense apparently forgot to change one title: Attorney Rod Blagojevich. Oddly enough, Attorney Rod Blagojevich was the only one of the re-titled officials to actually have any significant experience in criminal law.

 The Word Police: Semantics in a court of law

Aaron Goldstein wandered into a semantic quagmire in both the morning and afternoon sessions today. The attorney who has arguably been the most effective for the Blagojevich may have wandered into some quicksand, but instead of mercifully sinking to a quick demise, he ended up looking like a lawyer doing a song and dance—wet sand everywhere—trying to convince the jury they weren’t really seeing what it appeared like they were seeing.

In round one, the meanings of the words good and could were discussed, along with the exact purpose of that squiggly punctuation mark at the ends of sentences. His point was simple, but it wasn’t well-made, especially in front of an increasingly annoyed Judge Zagel. Goldstein wanted to establish that Blagojevich’s questions—posed in a call to Deputy Governor Greenlee—were evidence that he was consulting Greenlee and that the Governor had not actually made up his mind about the funding for Children’s Memorial Hospital. (For instance, the word could might indicate possibility.) Goldstein also suggested that his questions were informational, and not actually orders telling him to do something. Greenlee disagreed. And in his lawyer’s semantic nit-picking, the judge’s annoyance, and the prosecutor’s barrage of objections, the whole thing came off as a rather feeble song-and-dance.

Goldstein later discussed the precise meanings of the words: Know, legitimate and advice. The problem with this whole line of questioning, and exercise in alienating the jury, is that the exact definitions of these words are irrelevant in court. The only thing that matters is what the witness thinks they mean and in what context they were used. So when Goldstein actually tried to  help out the witness by showing him a dictionary, Zagel said: “You know we don’t do dictionaries in court.”

Part of the problem was that the witness, former Deputy Governor Greenlee, had a pronounced dim view of the man he once worked for, and he wasn’t going to allow his testimony to be in any way shaped or molded by Blagojevich’s attorney. It was clear that this semantic battle was going to be a losing proposition as evidenced when Greenlee would not allow Goldstein to characterize his actions as appeasing the Governor but allowed him to say he was placating the governor. Shades of meaning. Little headway in a long day for the defense.

Zagel Part I (Greenlee):

As the prosecution winds up and the defense studies a variety of options, Judge Zagel was both more informative—on a wide range of subjects—and more instructive than usual. Early in the day, he told Goldstein not to use the classic TV-lawyer question that goes like: “So you’re telling the ladies and gentlemen of the jury…” because it has the piece that says the witness is “telling the jury something” and Zagel wants the witness just to give testimony and let the jury decide for themselves what they have been told. Judge Zagel said the problem with this form is that the witness might give a good answer but it will be ruined by the lawyer jumping in to say what he’s telling the jury. This may not seem all that noteworthy but it is indicative of what kind of courtroom Zagel runs, and the kinds of things that both sides will have to do in order to win the case. (And for the record, I have sat in federal court and seen lawyers who spend all day saying that a witness is telling them something.) Zagel also had a problem with questions that are predicated on a fact that is not in evidence, but Goldstein couldn’t seem to stop asking these questions.

At one point, Goldstein was trying to slip Rahm Emauuel in the case by implying that he knew and approved of Blagojevich’s plan to appoint Jesse Jackson Jr. to the vacant senate seat, but several objections were sustained. Finally, Zagel said, “It might help if you actually told me what you’re trying to do, because I really don’t understand.” And after hearing the explanation, Zagel said he still didn’t get it, and it was followed by saying he thought this line of questioning was, “A waste of time.” And only a few minutes later, the judge’s annoyance came out again: “If this is the line of questioning you’re going to ask, there’s no point in going on.”

So what was the problem? Why was Goldstein having so much trouble chipping at the testimony of a prosecution’s witness? The situation might be clarified by taking a look at a few more statements made by Judge Zagel. He said: “This witness doesn’t have an untrammeled faith in your client.” What he was conveying to Goldstein, to the defense, was that it was clear—very clear—that Greenlee not only thought Rod Blagojevich intended to break the law, but that Blagojevich was a fairly unapproachable, delusional man, given to irrational rants, and that the only way he was going to get things done for the State of Illinois, was dependant on finding a way to work around the Governor. At one point, Greenlee said that: “If he waited for approval from Blagojevich before doing anything, the state would grind to a halt.” He was an unshakable witness.

 Zagel Part 2 (The Defense’s case):

The defense has indicated that they will employ one of two defenses. The first is similar to the one popularized a few years ago during the era of corporate fraud, and sometimes called the “Know Nothing” defense. In this defense, as Zagel put it, the defendant says, “I didn’t realize it was illegal,” because of lack of knowledge. Zagel said this is possible but it is not usually used when the defendant has a law degree. Perhaps he was recalling that in a trial featuring Attorney Harris and Attorney Greenlee—by the defense’s own characterization—there might be a problem running a defense that featured Attorney Blagojevich.

The second is the affirmative defense. I have written about the affirmative defense in these notes, since the possibility was raised a few weeks ago. From my reading of it, and from what some attorneys who have argued cases in federal courts tell me, this one is a possible but tricky defense. The defense would concede that crimes were committed but would argue that Blagojevich was acting on what he thought was sound advice from attorneys and other advisors whom he had reason to trust. There is likely a Hail Mary quality to this defense, in that it is an all or nothing shot that if not skillfully navigated could fall short and land Blagojevich in prison. If Blagojevich elects to use an affirmative defense, the judge would give some directives to the jury, telling them that the defense is admitting that crimes were committed but that they will have to prove that these crimes only happened because he relied on what he believed to be the sound advice of council. The problem here might be something like a person who has a belief that he can jump over a lake and so he runs and makes the leap. If half way over the blue lake, he realizes that his belief was mistaken, then a watery splashdown is inevitable. If it turns out that the reliable counsel story isn’t working when he is half way into his defense, this could be problematic because the jury already knows that crimes were committed. At least from my lay eyes, I think this is how the affirmative defense would work.

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Rod Blagojevich bends over the broad white table to confer with one of his lawyers. His face is stern, intense; he speaks rapidly, tersely, and while he is speaking—spitting out legal strategy—his eyes disengage from his attorney, drifting up and outward, searching. The eyes stop on a target. A few more words to the lawyer and he zeroes in on two men in the second row, “You think the Bulls will get LeBron?” he says. He’s many things to many people. Sometimes simultaneously.

In the hall outside, on the way into court, there is a larger than usual crowd waiting outside the cordoned-off hallway with the US Marshal sentries. The well-dressed man smiles, says hello as he wanders through. It’s the post-gag-request subdued Rod Blagojevich. Suddenly he wheels on his heels and raises his hands Nixon-style, the ring finger and pinkie of each hand extended, “As I’ve said all along, I’m innocent of all charges.” His arms fall limp to his side and he ambles into the courtroom with his lawyers in tow.

I’ve known two state governors, only two, and I don’t really know the one from Illinois. Governor Siegelman, of Alabama, was and is a fairly simple man. There was a side of him that was  a hardball politician—maybe too much so at times—but you knew he truly cared about the state of Alabama and he cared about people, also perhaps too much at times. His eagerness to help people might have got him in trouble. But you didn’t feel like the man had a closet full of hats that he was interchanging by the hour and the day and the second. The other governor, the one from Illinois, may not really be that complex, as the greatness he aspired to may have been found only in the smoke and mirrors of his side-show quick-change act.

The Governor stops by a couple ladies to chat. “Where you from?” he asks. It’s his favorite opening line. From there, he’ll go into the history of the place, the old neighborhood, the people he knew from there—important people sometimes—and the inevitable political lineage. It is an engaging dialog, impressive. His eyes are darting again, he gives a quick aside to a nearby attorney, spots Patti a few feet away, gives her a little smile, and just as quickly, he’s back to a neighborhood, a school, a boy in the park, a political homily. It goes on.

A flip again, and he is talking fast, terse but smiling a little through taught lips, “Where you from?” he asks some college kids. He talks history, politics, the value of education. “Study hard,” he says. And in a blink, his expansive rambling talk suddenly collapses back to this place, this courthouse, and he talks about his case.”Watch the dates,” he says. “December 6^th, December 8^th, watch what happens,” and then he’s gone.

In court, we’ll hear yet more sides of Rod Blagojevich, a man who was so frustrated by being passed like a speedbump in Obama’s whirlwind trip to the White House that he curses the President of the United States. It is a man surrounded by yes-men who constantly feed him the only version of reality the Governor wants to hear, who are afraid of his wrath and mindful of the uselessness of arguing with him. It is a portrait of a state, one of these united states,  aimlessly drifting off into space.

In the break, he has the dunce cap on, playing the impish brat. He spots some elderly women in the first row of the gallery, and leans over to frame them up personally. He says with a sheepish grin, “Sorry about the language.” That’s his theme, referring to the rants just played on tapes. It’s the hat he’s wearing now. There are a couple more women a few rows back. “Sorry about the language,” he says again, gives an exaggerated shrug of his shoulders with a sheepish grin.

And then there’s the pathos hat, the one where Blagojevich sounds like he is fully conscious of the opportunity he squandered and frittered away. The “Rezko thing” ruined any chance he might have had for an extended political career and likely any chance he had to maintain or improve his financial viability. There is also the black hat. It’s the one where he might have been some kind of ersatz criminal, the kind of governor who would not only get tossed from office, voted out if he could avoid impeachment, but he would wind up in a courtroom, giving one liners to the gawkers or the remnants of his public. And it turns out that he wasn’t really cut out to run a criminal enterprise either. Perhaps it’ll make for a good defense, but he couldn’t get much of a deal—political or otherwise—for the vacant senate seat he controlled, nor could he capitalize on letting criminal-minded people  get too close to his government, people who would ruin him forever before they were done. And this is not to imply that his guilt is assured in a court of law, but only that it is clear he was flailing about from scheme to scheme. And through it all, he only came up empty, wearing the sad hat that he deftly rolls down his arm and exchanges for the populist hat. He is like an aging one-hit-wonder pop group, doomed to play their big hit over and over again. Taxes. Healthcare. Children. The hard working people who are supposed to support a guy who never liked to work that much and then wanted hundreds of thousands of dollars to take care of his “”f***ing family and his f***ing kids.” What hat is that?

The prosecution’s denouement

The prosecution has said that they will rest either late Monday or early Tuesday. This will be followed by the usual Rule 29 motion, arguing that the defendant should be acquitted because the prosecution has failed to prove its case, which will be followed by Judge Zagel’s denial, and it doesn’t look like any of the twenty-four counts are in jeopardy of being dismissed. Zagel could alternatively defer ruling on the Rule 29 motion until after the defense’s case, or even after the jury’s verdict. But in watching Judge Zagel thus far in this courtroom, I would expect him to confidently deny the motion before the defense puts on their case.

A basic run-down of the various counts in terms of where both sides stand as the case shifts from the prosecution to the defense follows:

Counts that are fairly strongly made for the prosecution, at this juncture include: 4, 13, 21, and 24.

Counts that might be defensible or at least have some room for reasonable doubt include: 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20 and 22. I am not convinced that the counts derived from Doug Scofield or the activities of Lon Monk (with the possible exception of the RICO charges listed below) will hold up.

Counts 1-3 and 23 are the two RICO charges and two conspiracy counts. These could go either way as they are largely predicated on the jury’s determinations they will make on the other counts.

Things could shift in the waning moments of the prosecution’s case as it is likely that John Wyma could be the anchor witness.

 Greenlee

Former Deputy Governor Bob Greenlee was a very strong witness for the prosecution (although he is yet to undergo cross-examination). He was articulate, well-spoken, and was able to testify without any cooperating-witness baggage. His only drawback as a defense witness was that he was at least the fourth witness to say that he did not always tell Blagojevich the truth, and that he often resorted to telling his boss what he wanted to hear. This might be less problematic for Greenlee, however, because he was able to give convincing reasons about exactly why he said what he said or did what he did, and he also gave fairly detailed descriptions of an often irrational or barely in-control Rod Blagojevich.

Putting this irrationality in the blender and spinning it with the various people who were not always telling Blagojevich the truth, or were not always carrying out his wishes, could possibly result in an unusual defense strategy. But although I have listed many of the counts as defensible and possibly assessable to reasonable doubt, many of them are tottering on the edge and it will definitely take an unusual defense in order for Rod Blagojevich to finally get one of his schemes right.

During a call between Fred Yang, John Wyma and Blagojevich, where the Governor says that if he appoints Jesse Jackson Jr. to the senate seat, he’ll get something “tangible and concrete” from his supporters, Yang can’t seem to get his head around what Blagojevich is saying. Even within the wheeling-dealing nature of politics, there are still rules and boundaries and most people know what and where they are. But Yang is enthusiastic about using the senate seat as a play to get something, and at some point on the tape, he delivers a great line (especially if he could have known that some day it would be played in court).

He said: “It’s not personal. It’s just business.” Heard that line before? It’s from The Godfather, probably not the best quote to use when all the phones are tapped.

Jesse Jackson Jr. and Patti Blagojevich

There’ll be more on dropping the Jesse and Patti pieces into the story over the weekend. But for now, a couple of things came out of some of the tapes. It looks like Jesse Jackson might have known that large sums of money were being offered to secure his place in the senate. It also looks like Blagojevich was planning on seeing Jackson on the day Blagojevich was arrested, December 9, 2008. Besides the fact that the Tribune broke the story that the Governor was being taped five days before. which allegedly caused him to cancel a meeting with Jackson, the announcement or the agreement for the senate seat could have been made on the night of the arrest.

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Memo to DOJ- re: preparing witnesses who’s story has been memorialized in FBI 302s.

It isn’t quite déjà vu, but I once watched an entire months-long trial in which a large part of the defense’s strategy was to exploit discrepancies between the witnesses on-the-stand testimony and FBI interviews which were transcribed from the agent’s raw notes to governmental forms, called 302s. But the witnesses in that trial were well coached…er…prepared. When the defense asked about the discrepancies, they had a well worn mantra that went something like this: I don’t know what’s in those notes or how they took them, they must’ve misunderstood what I was telling them. The truth is what I’m saying today. There wasn’t much the defense could do after that.

In the trial at hand, there have likewise been discrepancies between the FBI 302 notes and the on-the-stand testimony of various witnesses. But there is no mantra and the defense has usually been able to get the witness to acquiesce to the notes, admitting that statements must have been said because they’re in the notes. And it is one of the few exploitable cracks the defense has found in the prosecution’s machine-like case even if they do not always handle prosperity well.

Road Building

Most of the morning testimony was devoted to Gerald Krozel, also known as the Construction Executive, in the parlance of the indictment. Krozel is an elderly semi-retired man of 70. He would sit up in the witness box, staring straight ahead with both hands in front of him on the desk. Krozel spoke slowly and deliberately, in a soft, low gravelly voice, often asking the attorney in front of him to, “Please rephrase the question.”

His story had been that Blagojevich had talked about a $6 billion road project in close proximity to discussing fundraising, and the need to donate money to his campaign fund ahead of the deadline set by the ethics bill (when people and companies with large state contracts would not be able donate to the governor). During the prosecution’s questioning, in his slow precise style, he said that he felt these two things were “connected.” And that he felt pressured by the Governor. The proximity part of the story, and even his feeling of pressure, were probably true, but the word “connected” and the very deliberate way he inserted it into his answer, sounded like it might have been supplied to him.

In Blagojevich’s cross, Goldstein went over discrepancies between Krozel’s testimony and what was recorded in the FBI 302s. The defense counsel also brought out that Rod Blagojevich had amiably told Krozel to “Call if he needed anything,” but that he never called and never told Blagojevich that he was uncomfortable.

It wasn’t a bad cross, as Goldstein has been reliable for the defense, but he should have walked away and wasn’t able to quit after making his best points. After he asked Krozel if he felt pressured now—on the witness stand—and then went on to bluntly ask Krozel why he lied to the FBI. Krozel looked up, his eyes wide and he said in his low gravelly whisper that the FBI had come to his house at 6:30 in the morning, “While I was dressing my wife.” He went on to say that she had an illness, and that, “She can’t walk, she can’t write. And I just wanted to get them out of my house.” The courtroom was somber, silent, the only smile I saw was on Rod Blagojevich who was apparently not listening—wearing one of the many hats he has—and chatting with Adam Sr.

[More to come—it was a long day…fatigue and all that…]

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