The battle over time revisited: The “I’m telling” motion
May 13, 2010 at 11:03 am
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There are a couple of kids on the playground. There’s a dispute. Something about the rules. It’s a life or death thing to them. Their purpose and worth is tied up in the outcome. An older kid acts as a referee. He makes a ruling and one of the kids is happy, smiling. The other one sulks, says he can’t play the game this way, says it’s not fair. Finally the loser says, “I’m telling,” and he runs off to seek a higher authority. Dad comes out, weary, wanting to stay out of it. The insulted boy, in a rush, states his case. The other kid blurts out, “That’s just stupid.” Before a ruling is handed down by dad, the angry kids shouts, “Is not!” Dad shakes his head and walks away. The referee says, “You think I’m not good enough to decide things. You shouldn’t ought to get all interloculatory on me, go off running to Dad every time you want something. He’s right, it’s stupid. Shut up and play.”
This spring, in the first battle of the pre-trial skirmishes, the Blagojevich team etched a line in the dirt over the issue of time. His attorneys said they needed as much as five more months (but might settle for three) and the prosecution said a year and a half is long enough. The basis for the request—a pretext according to the prosecutors—was that the Supreme Court is yet to rule on several cases that might impact the charges that Blagojevich faces. This claim was wrapped in the Constitution because it is a fundamental right for a defendant to know what he may be charged with. But it isn’t as straight forward as that because although some charges could be dropped in accordance with an impending Supreme Court ruling, the evidence would remain the same. And although I will not pretend to be a constitutional lawyer—or any lawyer, armchair or otherwise, for that matter—the 6th amendment says that a defendant has the right to “…be informed of the nature and cause of the accusation…” which seems to suggest that the Blagojevich case satisfies this legal requirement since the evidence against him will not change regardless of what happens in the Supreme Court. Besides not knowing exactly what charges he will be facing, his attorneys have said that this—not knowing the charges—impedes their ability to write an opening argument, and because the Supreme Court decision could have several outcomes with regards to the honest services statute, his attorneys also say that this prevents them from having an understanding of what legal theories Blagojevich will ultimately be charged under. Neither argument has had much of an affect on Judge Zagel because both the opening argument and legal theories are concerned with how the evidence is interpreted and not necessarily with the nuts and bolts of the statutes that the evidence is connected to. And that’s the problem. It doesn’t matter what the Supreme Court does because the evidence against Blagojevich will remain the same. He will face a variety of charges—possibly less than are now in the indictment—as a result of that evidence.
As the trial now looms in front of us, and is apparently on an un-derailable track, this lingering battle spawns some questions: 1) Does the Blagojevich defense really believe that the Supreme Court ruling—and possibly fewer charges—could significantly change the outcome of the trial if it is delayed until after the ruling? Conversely, is the prosecution afraid of the impact the Supreme Court ruling might have on the trial and feel that a win for their side is more likely with the defense not knowing all of the charges they will ultimately be facing, or do they simply think eighteen months is enough and they’re just trying to save the taxpayers money; 2) Is it really more of a pretext, an underpinning of a defense that is in a mode of frantic disarray, as they desperately try to make sense and craft plausible explanations out of hundreds of hours of taped evidence, millions of pages of documents and the stories of several cooperating witnesses? 3) It is unclear who is in charge of the defense, as Blagojevich’s media blitzes have gone against conventional legal wisdom, but does the defendant believe that a continuance would give him more time to take his case directly to the American people and create a wave of good-feeling that might trickle down to the jury; 4) Is the whole thing academic—a typical legal pre-trial exchange—and will it ultimately not make much of a difference either way?
The sequence of the last ditch flurry of motions and Judge Zagel’s denial has gone something like this:
The “I’m Telling” Motion
The original continuance motion was rather schizophrenic in that it cited both the constitutional issues associated with the Supreme Court as well as the logistical problems of processing “3.5 million pages of documents and 1.96 million emails.” The pleading went on to say that they later had to analyze 22,000 pages of FBI 302 [witness interview] notes, nearly 265 hours of recordings and said they needed to study the transcript of Tony Rezko’s trial because of its similarity to the current proceedings. The prosecution countered that the defense had plenty of time and the motion was denied.
Time passed and the kid on the playground got a little mad, got a little desperate as the trial date came rushing up. The defense bypassed a motion to reconsider to either Zagel or the Magistrate and instead went over the judge’s head to a higher authority, the appellate court. The timing of the appeal may have been calculated because in the sometimes slow as molasses appellate courts, a ruling could take time (a lawyer once told me that appellate courts work under the premise that, “We have a lifetime appointment, so if we make a decision before we die, it is timely”) which would work for the defense because even a negative ruling would delay the start of the trial. They also took the unusual and creative measure of asking the higher court to direct the District Court to give them a favorable ruling. This would take the jurisdiction out of the hands of Zagel, hence the nature of the “I’m telling” motion.
The “That’s stupid” motion
Citing case law, the prosecution filed a motion asking Zagel to declare Blagojevich’s motion to be a “frivolous effort to block the normal process of litigation.” And importantly, the motion said that jurisdiction should stay in Zagel’s court. We got a referee. He can handle it.
The “Is not!” motion
Blagojevich’s team quickly filed a motion asserting that contrary to the prosecution’s characterization of their motion, it was indeed a heartfelt plea to the appellate court, raising real and substantial issues, or ”Is not stupid.” To my lay eyes, just like the stubborn kid on a playground, it was a weak argument. They first cited a court case (that had previously been cited by the prosecution) where an appellate court said that calling a motion frivolous (or stupid) should be done with caution and when there are real issues involved, they should be heard by the appellate court. Those general legal comments did nothing to help Blagojevich’s case. And worse, they cited a recent case where the sentencing of a defendant was delayed in order to give the Supreme Court time to render their honest services decision. But the sentencing of a defendant who has already been tried and convicted of charges that might become moot with the Supreme Court’s ruling has little to do with dropping a few charges before or during the trial of Rod Blagojevich. But when anyone yells: “Is not,” desperation and frustration are usually already at play.
The “He’s right, it’s stupid” Order of the Court
Zagel wrote that if he has made a mistake and Blagojevich is convicted, then they can appeal, but for now, he sees the defense’s motions as the prosecutors do, that they are frivolous. He said that charges get dropped all of the time—before, during and after a trial—and it doesn’t necessarily impact how the evidence is used to address the remaining charges. And he said that since opening arguments are not the place to make legal points, but are instead, where the jury is told what evidence they will see, the notion that they will not be able to craft an adequate opening argument is also frivolous. [And then there was Zagel’s: “Dad returns do-over Order.” See the update in the right-hand column for information about that.]
21 days until trial
So the drumbeat continues. The textual battle will become verbal on June 3rd; the playground will become an oak paneled courtroom. Some of the answers above will be answered. Keep reading and we’ll check them off as they come.
This spring, in the first battle of the pre-trial skirmishes, the Blagojevich team etched a line in the dirt over the issue of time. His attorneys said they needed as much as five more months (but might settle for three) and the prosecution said a year and a half is long enough. The basis for the request—a pretext according to the prosecutors—was that the Supreme Court is yet to rule on several cases that might impact the charges that Blagojevich faces. This claim was wrapped in the Constitution because it is a fundamental right for a defendant to know what he may be charged with. But it isn’t as straight forward as that because although some charges could be dropped in accordance with an impending Supreme Court ruling, the evidence would remain the same. And although I will not pretend to be a constitutional lawyer—or any lawyer, armchair or otherwise, for that matter—the 6th amendment says that a defendant has the right to “…be informed of the nature and cause of the accusation…” which seems to suggest that the Blagojevich case satisfies this legal requirement since the evidence against him will not change regardless of what happens in the Supreme Court. Besides not knowing exactly what charges he will be facing, his attorneys have said that this—not knowing the charges—impedes their ability to write an opening argument, and because the Supreme Court decision could have several outcomes with regards to the honest services statute, his attorneys also say that this prevents them from having an understanding of what legal theories Blagojevich will ultimately be charged under. Neither argument has had much of an affect on Judge Zagel because both the opening argument and legal theories are concerned with how the evidence is interpreted and not necessarily with the nuts and bolts of the statutes that the evidence is connected to. And that’s the problem. It doesn’t matter what the Supreme Court does because the evidence against Blagojevich will remain the same. He will face a variety of charges—possibly less than are now in the indictment—as a result of that evidence.
As the trial now looms in front of us, and is apparently on an un-derailable track, this lingering battle spawns some questions: 1) Does the Blagojevich defense really believe that the Supreme Court ruling—and possibly fewer charges—could significantly change the outcome of the trial if it is delayed until after the ruling? Conversely, is the prosecution afraid of the impact the Supreme Court ruling might have on the trial and feel that a win for their side is more likely with the defense not knowing all of the charges they will ultimately be facing, or do they simply think eighteen months is enough and they’re just trying to save the taxpayers money; 2) Is it really more of a pretext, an underpinning of a defense that is in a mode of frantic disarray, as they desperately try to make sense and craft plausible explanations out of hundreds of hours of taped evidence, millions of pages of documents and the stories of several cooperating witnesses? 3) It is unclear who is in charge of the defense, as Blagojevich’s media blitzes have gone against conventional legal wisdom, but does the defendant believe that a continuance would give him more time to take his case directly to the American people and create a wave of good-feeling that might trickle down to the jury; 4) Is the whole thing academic—a typical legal pre-trial exchange—and will it ultimately not make much of a difference either way?
The sequence of the last ditch flurry of motions and Judge Zagel’s denial has gone something like this:
The “I’m Telling” Motion
The original continuance motion was rather schizophrenic in that it cited both the constitutional issues associated with the Supreme Court as well as the logistical problems of processing “3.5 million pages of documents and 1.96 million emails.” The pleading went on to say that they later had to analyze 22,000 pages of FBI 302 [witness interview] notes, nearly 265 hours of recordings and said they needed to study the transcript of Tony Rezko’s trial because of its similarity to the current proceedings. The prosecution countered that the defense had plenty of time and the motion was denied.
Time passed and the kid on the playground got a little mad, got a little desperate as the trial date came rushing up. The defense bypassed a motion to reconsider to either Zagel or the Magistrate and instead went over the judge’s head to a higher authority, the appellate court. The timing of the appeal may have been calculated because in the sometimes slow as molasses appellate courts, a ruling could take time (a lawyer once told me that appellate courts work under the premise that, “We have a lifetime appointment, so if we make a decision before we die, it is timely”) which would work for the defense because even a negative ruling would delay the start of the trial. They also took the unusual and creative measure of asking the higher court to direct the District Court to give them a favorable ruling. This would take the jurisdiction out of the hands of Zagel, hence the nature of the “I’m telling” motion.
The “That’s stupid” motion
Citing case law, the prosecution filed a motion asking Zagel to declare Blagojevich’s motion to be a “frivolous effort to block the normal process of litigation.” And importantly, the motion said that jurisdiction should stay in Zagel’s court. We got a referee. He can handle it.
The “Is not!” motion
Blagojevich’s team quickly filed a motion asserting that contrary to the prosecution’s characterization of their motion, it was indeed a heartfelt plea to the appellate court, raising real and substantial issues, or ”Is not stupid.” To my lay eyes, just like the stubborn kid on a playground, it was a weak argument. They first cited a court case (that had previously been cited by the prosecution) where an appellate court said that calling a motion frivolous (or stupid) should be done with caution and when there are real issues involved, they should be heard by the appellate court. Those general legal comments did nothing to help Blagojevich’s case. And worse, they cited a recent case where the sentencing of a defendant was delayed in order to give the Supreme Court time to render their honest services decision. But the sentencing of a defendant who has already been tried and convicted of charges that might become moot with the Supreme Court’s ruling has little to do with dropping a few charges before or during the trial of Rod Blagojevich. But when anyone yells: “Is not,” desperation and frustration are usually already at play.
The “He’s right, it’s stupid” Order of the Court
Zagel wrote that if he has made a mistake and Blagojevich is convicted, then they can appeal, but for now, he sees the defense’s motions as the prosecutors do, that they are frivolous. He said that charges get dropped all of the time—before, during and after a trial—and it doesn’t necessarily impact how the evidence is used to address the remaining charges. And he said that since opening arguments are not the place to make legal points, but are instead, where the jury is told what evidence they will see, the notion that they will not be able to craft an adequate opening argument is also frivolous. [And then there was Zagel’s: “Dad returns do-over Order.” See the update in the right-hand column for information about that.]
21 days until trial
So the drumbeat continues. The textual battle will become verbal on June 3rd; the playground will become an oak paneled courtroom. Some of the answers above will be answered. Keep reading and we’ll check them off as they come.
