Report from Chicago

An observer of the Blagojevich trial wrote the following comment on a forum:

Personally, I wish they could have found a charge that they could make stick that would involve a long jail sentence, so I would not have to see his face. But that is not what the American jurisprudence system is for. Reading this daily blog from a court watcher had me pretty convinced that the lying to the FBI charge was the only one that would stick. [The link he posted was to this site.]

At least someone’s reading. Not long ago, I wrote that the only counts that I thought Blagojevich was in trouble with were the one’s that dealt with selling the Senate seat in exchange for political contributions in exchange for appointing Jesse Jackson Jr. and count 24, the obstruction of justice charge. We now know that the jury indeed found Blagojevich guilty of count 24 and that the were 11-1 for conviction on the selling-the-senate-seat charge(s). And then we had to hear a lot of commentators and pundits acting surprised and stunned or whatever adjective they were pulling from the bank that day. I would like to believe that people who followed the trial from my jury’s-eye view weren’t all that surprised, and perhaps felt the jury’s decision was rather anti-climatic. And we still had to hear some really thick blather from some media-people (to be fair, some of them were national big shots who really didn’t know much about the trial but they were the go-to face for big stories) who appeared to be talking about a different trial or were otherwise making rather outrageous (and sometimes grossly inaccurate) assertions.

 But I haven’t been all that well read. So if you’ve been one of the few who has been following the trial via these reports, consider it inside information or something like that.

[Addendum] The online newsletter,  The Beachwood Reporter, pointed out something that I wrote during jury selection:

Juror #102 seemed rather eager to be on the jury and emphasized what a fair person she could be. Blagojevich was vigorously nodding while she was talking, and watching intently (as opposed to his usual head bowed, taking notes posture he adopted during most of the interviews). Her eagerness might make her a volatile juror for both sides, and the positive things that Blagojevich liked might make her a candidate for a peremptory challenge by the prosecution. Blagojevich also seemed to like juror #106—who did community work—and she could be another candidate for a prosecution dismissal…Juror #106 said she has gotten some of what she knows about Blagojevich from Jay Leno, which got a broad smile and a big laugh from the former governor.

Nine weeks later, we now know that juror #106 turned out to be the hold-out juror in the 11-1 deadlock over Blagojevich selling the senate seat. It looks like the defense can be thankful that the DOJ didn’t take my advice. (I’m pretty sure the defense never read me although I was occasionally read by DOJ.)

What next? (Or memo to the DOJ):

If the DOJ refiles as they say they are determined to do, some or all of the following things will probably have to happen if they are to win a conviction in the do-over.

1. Lose Rob Blagojevich. I think the jury will always be less inclined to convict the former governor as long as they get a sense that in the government’s zeal to catch the big fish, they didn’t care who got caught in their net. It is clear that—guilty or not-guilty or hung—Rob Blagojevich was never a menace to society in the way his brother might have been appraised if he were to be found guilty of the more serious charges. It does not appear that trying and convicting Rob Blagojevich, caught up in his brother’s floundering schemes, does anything to really serve the purpose of justice. And if the DOJ wants to exact some kind of punishment, they might want to consider the hundreds of thousands of dollars Rob has already spent to defend himself, and would have to spend again in another trial, a trial in which in which he still wouldn’t be convicted.


2. They’ll need to simplify the indictment. One place they could pare it down would be to get rid of the charges related to the governor’s silly schemes (the 401(c)3 non-profit or running Change to Win, for instance). These are things where he was talking to aides to either didn’t say no or were actually encouraging him to do these things because they thought Blagojevich was exhausting and they would rather appease him than argue with him about his lame plans. The DOJ will have to account for some of the names listed in the indictment in the case or get them out, such as non-cooperating defendant Cellini, who was often listed as a conspirator but was rarely mentioned in the trial; or even Kelly (aka the 5,000 pound gorilla in the courtroom).  And there are some allegations that were just weak. They should get rid of those because their presence dilutes the stronger charges.


3. They’re probably going to have to use their big guns, come what may. This artillery includes Tony Rezko and Stuart Levine (baggage included). It is possible they got snookered a bit in not-calling some of these big witnesses when Blagojevich did not testify. They may have figured to get them in as rebuttal witnesses, post Blagojevich-testimony, but this option was taken out of their hands.


4. The DOJ should think long and hard about exactly what Blagojevich actually did and what they’ll be able to convince a jury. And then pare down the indictment accordingly so the more important and egregious charges are not imbedded within material that just makes him look a bit like a foolish or bad governor. Those things are not crimes. They need to lock-in on the more important charges and give the jury a clear choice.

The governor’s path to an acquittal is not as clear because it will always be much easier to get a hung jury than it will to get the jury to return not-guilty verdicts. The playing up the Governor-as-fool defense worked well for them but it may only give the defense a path to a hung jury and not an acquittal. So maybe they’ll win by attrition, as in another hung jury and the DOJ may recognize the futility of winning what is essentially an everyone-knows-he-was-doing-bad-things even if it remains a weak case in the encumbrances of a courtroom.

Will I come back?
If the government does commit to a do-over, will I come back to Chicago to continue writing these reports? The short answer is: I’m not sure. I’m inclined not to because this project never really did generate much of a readership or interest—there was much more for the projects in Birmingham and Montgomery—and although I know this was largely due to the crush of attention this case generated from local and national media—so much so there was almost an overload of information—I still maintain that these reports did offer a certain viewpoint that was not entirely redundant with the print and broadcast media. But I do write things to be read so other projects loom on the horizon (I’m toying with ideas of doing some blogs about issues concerned with immigration and questions about legal and illegal aliens).

However there is a moth-to-the-flame mentality to much of what I do, so I haven’t entirely ruled out a return to Chicago. Which bring s me around to the point that I absolutely loved my summer in Chicago. Great town. And I do want to thank some of the journalists and other people who were so nice to me while I was crashing the Blagojevich courtroom, specifically including Susan Berger (the trial tweeter) Dawn Reiss, writing for Time Magazine and especially Eric Zorn, of the Chicago Tribune, who was nice enough to give my project some legitimacy by linking to me and using some excerpts in his on-line columns. And to the others who tuned in with me to watch the trial: Thanks for reading….

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The jury has asked for and will receive the entire testimony of Bradley Tusk. This testimony pertains to Count 14 and second Racketeering Act of Count 1, the attempted extortion of Rahm Emanuel, where Blagojevich is alleged to have held up funding for a school—a project supported by Emanuel—until Emanuel’s brother held a fundraiser for the governor.

The following text is the jury instruction that pertains to this text, and what I wrote about the testimony on the day it happened. This might give some insight into what the jury is looking at. It is also noteworthy, that the jury is revisiting at least some of the counts they previously said they were deadlocked on. –It’s not over.

Jury instructions (excerpt from the 135 pages of instructions provided the jury)

“Defendant Rod Blagojevich has been charged with attempted extortion in Counts 14, 15, 19, and 22, as well as in Count 1, Racketeering Acts 2(a), 3(a), 5(a), and 6(b), and with conspiracy to commit extortion in Counts 17 and 21, as well as in Count 1, Racketeering Acts 4(a) and 6(a).

Title 18, United States Code, Section 1951 provides, in pertinent part:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by extortion or attempts or conspires so to do [commits an offense against the United States].

Extortion by actual or threatened fear means the wrongful use of actual or threatened fear to obtain or attempt to obtain money or property. “Wrongful” means that the defendant had no lawful right to obtain money or property in that way. “Fear” includes fear of economic loss. This includes fear of a direct loss of money, fear of harm to future business operations or a fear of some loss of ability to compete in the marketplace in the future if the victim did not pay as directed. The government must prove that the victim’s fear would have been reasonable under the circumstances. However, the government need not prove the defendant actually intended to cause the harm threatened.

Extortion under color of official right occurs when a public official receives or attempts to obtain money or property to which he is not entitled, believing that the money or property would be given in return for the taking, withholding or other influencing of official action. Although the official must receive or attempt to obtain the money or property, the government does not have to prove that the public official first suggested the giving of money or property, or that the official asked for or solicited it. While the official must receive or attempt to obtain the money or property in return for the official action, the government does not have to prove that the official actually took or intended to take that action or that the official could have actually taken the action in return for which payment was made or demanded or that the official would not have taken the same action even without payment.

Acceptance by an elected official of a campaign contribution, by itself, does not constitute extortion under color of official right, even if the person making the contribution has business pending before the official. However, if a public official receives or attempts to obtain money or property, believing that it would be given in exchange for a specific requested exercise of his official power, he has committed extortion under color of official right, even if the money or property is to be given to the official in the form of a campaign contribution.

The government must prove that the defendant received, attempted to obtain, or conspired to obtain money or property, knowing or believing that it was being, or would be given to him in return for the taking, withholding or other influencing of specific official action. The government need not prove that the understanding or agreement was stated or written in express terms.

For purposes of Counts 14, 15, 17, 19, 21 and 22, good faith on the part of the defendant is inconsistent with intent to commit extortion. The burden is not on the defendant to prove his good faith; rather, the government must prove beyond a reasonable doubt that the defendant acted with intent to commit extortion.

The government is not required to prove that the defendant knew that his acts were unlawful.”

The testimony of Bradly Tusk, as reported on June 21, 2010

The Governor’s involvement was presented by Blagojevich Deputy Governor Bradley Tusk, a man who to my knowledge has never been implicated in being party to any wrong doing. The one point he was invited to make by the very on-topic hit-and-run prosecution was that he had a conversation with Blagojevich in which the governor told him he was to tell Rahm Emanuel that his brother had to have a fundraiser for him before he would release the Chicago Academy’s grant money. The shocked Tusk made a couple of calls: To counsel Bill Quilan and to John Wyma, but he never delivered the message to Emanuel.

The defense could make two arguments that might help mitigate the allegation: 1) The request was never made to Emanuel; and 2) The money was released and the athletic field was built, sans fundraiser (it was originally supposed to be ready for the school year but it was finished in October). So with these simple arguments on the table, defense attorney Sorosky waded into the kinds of gaffs that have plagued the Blagojevich team throughout the early going part of the trial.

• Early in his questioning, Sorosky pointed out that Tusk did not have a political sponsor. That’s not such a good point to make as most people in this trial had political sponsors with names like Rezko and Kelly.


• Perhaps the worst gaff was when Sorosky tried to make a case that the money could have been held up because the state was in such a bad financial situation, or because there were so many institutions vying for grant money from the state. Judge Zagel himself jumped on this one to point out the gaping hole in the argument. Neither of these two issues have any bearing whatsoever on grant money that has already been appropriated. Zagel’s interjection was particularly damning for the defense because it was like he was reaching into the barrel to pull out the red herring before waving it at the jury. He basically called BS on the defense.


• When Tusk talked about a call that had taken place between himself and Blagojevich, Sorosky asked something about what Blagojevich was thinking. Zagel piped up: “They were at different places. So now we have mind-reading over the telephone.” Later Sorosky asked Tusk why the prosecution wanted to know something. Zagel said: “Now we’re mind reading the prosecution.”


• And then Sorosky tried to make some points on some things he was mistaken about. He tells Tusk that he didn’t quit his job over these shady deals and “continued to talk to the governor” for two years. Tusk pointedly said that he left the administration about a month after the call.


• Sorosky continued the usual pattern the defense has been using of spending a little portion of their cross in yelling at the witness while throwing barbed questions at him. This was particularly problematic for this witness, who was not charged with a crime and where there was little evidence that he would have participated in anything illegal. It came off rather hollow, like a frustrated defense berating a witness because they couldn’t get anywhere with facts or questions. And the point they were yelling about was a questionable change of testimony between what he said on the stand today and what he told the Grand Jury. Zagel eventually said that in both cases, he was relating that someone had said “words to that effect,” meaning he never claimed to be making an exact quote.


• When Tusk said that he “didn’t recall” a certain detail, Sorosky yelled at him a couple times that “I don’t recall”  is the same as saying it never happened. Not exactly.

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The time has come during the jury vigil when the wait becomes maddening because we know just enough to know we don’t know a thing. The jury vigil is an odd time in the course of a trial: People incessantly mill around, play little games, do word puzzles, rehash the trial, talk about what they’re going to do next. And every once in a while, there is some activity. It might be something that could become significant or it could be the minutest thing: The jury has sent another cryptic note, one of the lawyers has been seen down the street, reports from the field say that a defendant is on the move. And the quiet tittering gets deafening. Overall, it’s not all that interesting and there are way too many reporters around, so I’m not all that sorry I missed it this time even if it means I have to give tiny bleats of analysis from far away in the faint hopes that someone might still read this sideshow of the trial, written by someone who at least spent every minute in the courtroom, during the testimony phase.

So any chance we can figure out what’s going on in there?
A couple observations are worth saying up front:

• One of the many lawyer-commentators said that the jury may be closer than it appears. That’s true. One shift one way or the other could make a lot of the counts fall into place, like dominos.


• It is premature to say the jury is hung (as much of the media has been declaring) and that a mistrial on some counts is inevitable. We know they are deadlocked, but there are a couple of things we don’t know. First, there is a big difference between a 6-6 or 7-5 split, and a 10-2 or 11-1 stand-off. We won’t know the statistics on this until they’re done. It is also not too late for them to deliberate themselves into an agreement. Both of the high profile cases that I witnessed had juries that let the judge know they were deadlocked, and both juries eventually came to unanimous verdicts.


• Did I mention that nobody except the jurors (including me) knows anything.

They jury reports they have arrived at two verdicts. Which two? And they have said they are hung on 11 counts while they haven’t deliberated on the 11 wire fraud counts.

The hung counts: What’s the problem?
From observing the trial from the gallery, and beginning about the middle of the trial, it has always been easy for me to see two factions developing around the majority of the counts. For this reason, it has been difficult for me to give a confident prediction of the outcome because I could see the jury going either way, or splitting down the middle. Here’s the problem: There is evidence, very good taped evidence, that Rod Blagojevich did some of the things he is accused of. He DID talk about making deals in exchange for the senate seat. He DID talk to Lon Monk about the timing of the signing the racetrack bill legislation. He DID [other things that show up in the indictment]. So from a strict interpretation and enforcement of the law, a jury could see this as a slam dunk. But on the other hand, another juror could note that although he DID say these things, he was being lied to by some advisors while being encouraged by others. And that juror might also conclude that some of the plans were so pie-in-the-sky harebrained, that they weren’t bona fide criminal schemes. It is not hard to see how more than a couple jurors could be in each camp, and there aren’t many bridges between the two since each of these scenarios require an observer (or juror) to bring their own sensibilities to the deliberations.

Which two did they reach verdicts on?
Of course this is a difficult call because there is not much to go on, but the indictment might yield some clues. Count 24 comes to mind because it might have been the most open-and-shut one for the prosecution, but what would the other one be? It is likely that the two they’ve reached a verdict on are one of the four count-pairs. These are counts 15/16, 17/18, 19/20 and 22/23. All of these pairs have a central act, and the two counts differ only slightly. One is extortion and the other is about obtaining something of value via fraud. If I was to make a guess, I would say it is either counts 15/16 or counts 19/20, as not-guilty verdicts, because I don’t think any of these were particularly well made by the prosecution.

The counts they haven’t deliberated on
The counts that the jury indicated they have not deliberated on (the wire fraud charges) appear to mirror many of the predicate acts of the conspiracy charges: counts one, two and three. It is possible that in working through these acts, the jury had enough disagreement that they concluded they would get the same results when they deliberated on the wire fraud charges. This possibility makes some sense because some of the counts, like the not-for-profit schemes only appear in the undeliberated charges and the conspiracy counts, but not in the deliberated charges.

I have included a little jot scorecard of the counts below. The counts in red are the ones that have not been deliberated, the one’s in blue are the count-pairs mentioned above.

The counts:
Count 1 (Rod) (Conspiracy charge—one of the racketeering acts, along with bribery, extortion, bribery and conspiracy)
Count 2 (Rod) (conspiracy charge—one of the racketeering acts, along with bribery, extortion, bribery and conspiracy)

Count 3 (Rod) — wire fraud
(Count 4 (Rod & Rob) – Soliciting Racetrack exec, construction executive, an update on potential contributions on behalf of Blair Hull and Jesse Jackson Jr.
Count 5 (Rod) Talking to Doug Scofield and John Harris about financial benefits Rod could request for naming Val Jarrett to Senate seat.
Count 6 – (Rod) Talked to John Harris and others about financial benefits he could get for naming Valerie Jarrett to the Senate seat.
Count 7 – (Rod) Rod talking to Doug Scofield about having running a 401(c) 3 non-profit in exchange appointing Valerie Jarrett to the Senate.
Count 8 – (Rod) Rod talking to Tom Balanoff about running Change to Win, non-for-profit organization in exchange for naming Valerie Jarrett to Senate seat
Count 9 – (Rod) Rod also talking to union official and saying he could name Valerie Jarrett in exchange for running Change to Win.
Count 10—(Rod) Talking to Fred Yang about setting up the 401(c)3 non-profit.
Count 11 – (Rod) Rod telling Fred Yang to call Wyma about the 401(c)3 plan
Count 12 – (Rod) Rod agreed to call the racetrack exec about a contribution
Count 13 – (Rod & Rob)  Rod talked to [Deputy Governor] Bob Greenlee and Doug Scofield about naming Jesse Jackson Jr. to senate seat for tangible support.

 Count 14 (Rod) extortion – Plan to get a fundraiser from Rahm Emanuel’s brother in exchange for funding for a project Emanuel wanted.
Count 15 (Rod) extortion of Children’s Memorial Hospital
Count 16 (Rod) extortion of Children’s Memorial Hospital – like count 15, but charged under an “obtain by fraud” statute.
Count 17 (Rod) Conspiracy (with Lon Monk) to extort money from the Racetrack executive
Count 18 (Rod) Conspiracy (with Lon Monk) to extort money from the Racetrack executive (same pairing as counts 15 & 16 – one is extortion, the other is “obtain by fraud”) – some of the calls are used as evidence to make the predicate acts of the conspiracy
Count 19 (Rod) Extortion of construction executive
Count 20 (Rod) Extortion of construction executive (same pairing as above).
Count 21 (Rod & Rob) Conspiracy (with John Harris) to get things for appointing the senator. Most of the senate schemes are listed in this count.
Count 22 (Rod & Rob) Extortion in relation to the appointment of a US Senator involving “various individuals”
Count 23 (Rod & Rob) Conspiracy (with John Harris) to demand things of value for the appointment of a US Senator (same pairing as counts 15/16, 17/18 & 19/20)
Count 24 (Rod) Obstruction of justice—lying to the FBI.

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So what happened in Chicago? How’d you spend your summer? What was going on in the courthouse on Dearborn? Have you ever seen or felt or been through something that just left you feeling kind of grimy, kind of like you should run home and take a shower. I did the Blagojevich-trial equivalent.

On the first of what turned out to be a two-day closing argument, and for the first time in the trial, I was not going to make it into the courtroom. The 4:30 am train wasn’t early enough—I heard the next day was even worse. And I knew that with the general treatment and handling of the public, in this trial, coupled with the small courtroom, it wouldn’t be fruitful for me to hang around for the jury vigil only to get shut out in the end. So I slipped out of Chicago, checking in from time-to-time with Susan Berger’s tweets, in order to keep track of what was happening. But as I headed into rather remote territory, I confess that checking in was harder and harder to do for a time. I headed north: Cruised the Pictured Rocks on Lake Superior, then camped at Tahquamenon Falls, and again on the shores of Lake Huron and spent a couple more days camping at Sleeping Bear National Lake Shore, before heading toward Florida, stopping only for a sandwich and some cheese at Zingerman’s, in Ann Arbor. I loved Chicagoland almost more than words can describe here, but I’m not sure the distant lake shores, the waterfalls, the road has yet cleansed me of the darkest parts of the Blagojevich trial.

 What’s taking so long?

In all three of the long high-profile trials I have witnessed, the jury took between two to four weeks to digest the multiple counts of a white-collar trial. So I am not surprised that the jury did not come to a quick decision, and I had predicted that it would be two to three weeks, if not a little longer. We may even be heading toward Allen Charge territory, where Zagel would be able to apply some subtle pressure on the jury.

So what are they talking about in the deliberation room?

I’ll first preface my remarks by making a couple disclaimers: 1) I haven’t paid much attention to what the media has been saying as it kind of dilutes what I witnessed from the gallery. So my comments might seem somewhat redundant or conversely, way outside the mainstream, depending on what it is the media has actually been saying; 2) These are guesses based on what I saw from the pews, but when the jury eventually tells us what they were actually talking about, it might turn out that they saw things much differently from their much more comfortable chairs.

From my view, I break the indictment broken down into three rough categories. The first category consists of charges that I didn’t think were particularly well-made by the prosecution. The last category are the charges where substantial and substantive proof was offered, and unless the jury just decides the case is generally bogus (which at this point, we can probably discount because the length of time probably means the jury IS considering each individual charge) Blagojevich might be in trouble with charges in this last category. And the other counts are what I’ve referred to as the “middle charges,” ones where depending on how they are looked at, how the evidence is viewed, a case could be made for both a guilty or not guilty verdict. I suspect these are the charges that the jury is mostly talking about.

 Category 1—The not that well made charges:

• (Counts 1, 2 & 3) the three conspiracy charges—These charges are mostly predicated on an alliance described by Lon Monk, where Blagojevich, Monk, Kelly and Rezko conspired to hatch some schemes that would involve selling various state services for their own benefit. One problem with these two charges is that of the three possible witnesses, Kelly is dead and Rezko didn’t testify. That leaves cooperating witness Lon Monk, who was the only person in the trial who was receiving obvious payoffs from Rezko (cash stuffed in an envelope). It was never proved that Blagojevich ever received any money from the various schemes, with the exception of the gossamer thin money trail from Rezko to Patti.


• All the counts involving brother Rob Blagojevich (counts 4, 22, 13—for Rob) I think the jury will conclude that he was the hapless brother caught up in his idiot-brother’s plots, and was not willingly doing anything to further these schemes or to benefit himself from them.


• All of the counts involving Blagojevich’s hair-brained schemes to sell the senate seat, (counts 5, 6, 7, 8, 9, 10, 11 and 21) with the exception of the Jesse Jackson Jr. overtures. On most of these counts, his advisors were appeasing him, lying to him or encouraging him to do these things. And in most cases, the schemes were so pie-in-the sky, they just did not seem to make the cut as bona fide criminal plans.


• The extortion of the construction executive. (Count 19 and 20) It just sounded like a clumsy fundraising ask to me.

 Category 2—the middle charges. The ones that could go either way.

• The bribing of the race track executive. (Counts 12, 17 and 18) There are varying ways to look at it, but the person who seemed to be putting on the most pressure was Lon Monk who was then a paid lobbyist for the racetrack.


• The extortion of Children’s Memorial Hospital (Counts 15 and 16). No donation was ever given and funds were never delayed, which was the heart of the extortion scheme. But the jury could decide that they intended to extort the Hospital.


• A couple other schemes that might be considered “middle charges” show up embedded in the conspiracy counts, including the Chicago Tribune extortion.

Category 3—the difficult (for Blagojevich) charges

• The charge that Blagojevich might have sold the senate seat in exchange for appointing Jesse Jackson Jr. (Counts 14, 23). Somehow Jackson Jr. shot to the top of Blagojevich’s list when millions of dollars were being offered.


• The obstruction of justice charge (Count 24). I wrote about this before as it is an interesting charge and currently an en vogue indictment tack-on for the government to slip jury-accessible charges into white collar cases to ensure a conviction. (For instance, they got Martha Stewart on obstruction of justice instead of the more difficult to prove insider trading charge). What makes this one particularly interesting to me is that the statements Blagojevich was alleged to have lied about are legal, that is he could have told the truth and would not have been admitting to anything. (He said he didn’t know who his big donors were and didn’t track them—just about every politician does this—it is not intrinsically illegal.)

These are just some observations. The jury will let us know in time.

The aftermath

If it turns out that Rod Blagojevich is found guilty, if he is going to jail, we will hear endless tales of woe from the defense. We’ll hear that it was a miscarriage of justice, that the constitution was trashed, that it was a political vendetta carried out and executed by the DOJ, that it was the worst disaster since the Chicago fire. But it was none of those things.

It was a case that from top-to-bottom was weak in some areas and fairly strong in other places. If nothing else was proved at all, it was abundantly clear that there was a huge gulf between the smiling, joking, suave, erudite, applause-mongering person who showed up every day at court and the shadowy, angry, foul-mouthed, delusional figure who was supposed to be running the state of Illinois, a state that was ill-served by the brand of politics Blagojevich brought to the office. And speaking of ill-served, it is also apparent that Blagojevich was ill-served by the team of lawyers that crowded around the defense table. The eventual verdict might tell us to exactly what level this poor service will rise to.

I am sure they—his lawyers—would argue the point while saying Zagel and the government stomped on their client’s constitutional rights, but it looked very much like there was no cohesive defense strategy in the courtroom. It also looked like Sam Adam Jr. was a headstrong, inexperienced, grandstanding attorney who hurt his client more than he helped him—and he was unable to adapt or take reasonable advice in the fluid environment of the courtroom. But what do I know. Better to listen to the jurors.

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 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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