Attorney Rod Blagojevich
July 12, 2010 at 9:10 pm
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This afternoon, many of the players in the case received new titles. Chief-of-Staff John Harris became Attorney John Harris, Deputy Governor Greenlee became Attorney Bob Greenlee. And whereas most of these attorneys had little or no experience in actually practicing law—certainly not criminal law—at least the defense was closer when they referred to Chief Counsel Quinlan as Attorney Bill Quinlan. If Chief-of-Staff Lon Monk had come up in Greenlee’s testimony, he could have made it a quartet, and been referred to as Attorney Lon Monk. The defense apparently forgot to change one title: Attorney Rod Blagojevich. Oddly enough, Attorney Rod Blagojevich was the only one of the re-titled officials to actually have any significant experience in criminal law.
The Word Police: Semantics in a court of law
Aaron Goldstein wandered into a semantic quagmire in both the morning and afternoon sessions today. The attorney who has arguably been the most effective for the Blagojevich may have wandered into some quicksand, but instead of mercifully sinking to a quick demise, he ended up looking like a lawyer doing a song and dance—wet sand everywhere—trying to convince the jury they weren’t really seeing what it appeared like they were seeing.
In round one, the meanings of the words good and could were discussed, along with the exact purpose of that squiggly punctuation mark at the ends of sentences. His point was simple, but it wasn’t well-made, especially in front of an increasingly annoyed Judge Zagel. Goldstein wanted to establish that Blagojevich’s questions—posed in a call to Deputy Governor Greenlee—were evidence that he was consulting Greenlee and that the Governor had not actually made up his mind about the funding for Children’s Memorial Hospital. (For instance, the word could might indicate possibility.) Goldstein also suggested that his questions were informational, and not actually orders telling him to do something. Greenlee disagreed. And in his lawyer’s semantic nit-picking, the judge’s annoyance, and the prosecutor’s barrage of objections, the whole thing came off as a rather feeble song-and-dance.
Goldstein later discussed the precise meanings of the words: Know, legitimate and advice. The problem with this whole line of questioning, and exercise in alienating the jury, is that the exact definitions of these words are irrelevant in court. The only thing that matters is what the witness thinks they mean and in what context they were used. So when Goldstein actually tried to help out the witness by showing him a dictionary, Zagel said: “You know we don’t do dictionaries in court.”
Part of the problem was that the witness, former Deputy Governor Greenlee, had a pronounced dim view of the man he once worked for, and he wasn’t going to allow his testimony to be in any way shaped or molded by Blagojevich’s attorney. It was clear that this semantic battle was going to be a losing proposition as evidenced when Greenlee would not allow Goldstein to characterize his actions as appeasing the Governor but allowed him to say he was placating the governor. Shades of meaning. Little headway in a long day for the defense.
Zagel Part I (Greenlee):
As the prosecution winds up and the defense studies a variety of options, Judge Zagel was both more informative—on a wide range of subjects—and more instructive than usual. Early in the day, he told Goldstein not to use the classic TV-lawyer question that goes like: “So you’re telling the ladies and gentlemen of the jury…” because it has the piece that says the witness is “telling the jury something” and Zagel wants the witness just to give testimony and let the jury decide for themselves what they have been told. Judge Zagel said the problem with this form is that the witness might give a good answer but it will be ruined by the lawyer jumping in to say what he’s telling the jury. This may not seem all that noteworthy but it is indicative of what kind of courtroom Zagel runs, and the kinds of things that both sides will have to do in order to win the case. (And for the record, I have sat in federal court and seen lawyers who spend all day saying that a witness is telling them something.) Zagel also had a problem with questions that are predicated on a fact that is not in evidence, but Goldstein couldn’t seem to stop asking these questions.
At one point, Goldstein was trying to slip Rahm Emauuel in the case by implying that he knew and approved of Blagojevich’s plan to appoint Jesse Jackson Jr. to the vacant senate seat, but several objections were sustained. Finally, Zagel said, “It might help if you actually told me what you’re trying to do, because I really don’t understand.” And after hearing the explanation, Zagel said he still didn’t get it, and it was followed by saying he thought this line of questioning was, “A waste of time.” And only a few minutes later, the judge’s annoyance came out again: “If this is the line of questioning you’re going to ask, there’s no point in going on.”
So what was the problem? Why was Goldstein having so much trouble chipping at the testimony of a prosecution’s witness? The situation might be clarified by taking a look at a few more statements made by Judge Zagel. He said: “This witness doesn’t have an untrammeled faith in your client.” What he was conveying to Goldstein, to the defense, was that it was clear—very clear—that Greenlee not only thought Rod Blagojevich intended to break the law, but that Blagojevich was a fairly unapproachable, delusional man, given to irrational rants, and that the only way he was going to get things done for the State of Illinois, was dependant on finding a way to work around the Governor. At one point, Greenlee said that: “If he waited for approval from Blagojevich before doing anything, the state would grind to a halt.” He was an unshakable witness.
Zagel Part 2 (The Defense’s case):
The defense has indicated that they will employ one of two defenses. The first is similar to the one popularized a few years ago during the era of corporate fraud, and sometimes called the “Know Nothing” defense. In this defense, as Zagel put it, the defendant says, “I didn’t realize it was illegal,” because of lack of knowledge. Zagel said this is possible but it is not usually used when the defendant has a law degree. Perhaps he was recalling that in a trial featuring Attorney Harris and Attorney Greenlee—by the defense’s own characterization—there might be a problem running a defense that featured Attorney Blagojevich.
The second is the affirmative defense. I have written about the affirmative defense in these notes, since the possibility was raised a few weeks ago. From my reading of it, and from what some attorneys who have argued cases in federal courts tell me, this one is a possible but tricky defense. The defense would concede that crimes were committed but would argue that Blagojevich was acting on what he thought was sound advice from attorneys and other advisors whom he had reason to trust. There is likely a Hail Mary quality to this defense, in that it is an all or nothing shot that if not skillfully navigated could fall short and land Blagojevich in prison. If Blagojevich elects to use an affirmative defense, the judge would give some directives to the jury, telling them that the defense is admitting that crimes were committed but that they will have to prove that these crimes only happened because he relied on what he believed to be the sound advice of council. The problem here might be something like a person who has a belief that he can jump over a lake and so he runs and makes the leap. If half way over the blue lake, he realizes that his belief was mistaken, then a watery splashdown is inevitable. If it turns out that the reliable counsel story isn’t working when he is half way into his defense, this could be problematic because the jury already knows that crimes were committed. At least from my lay eyes, I think this is how the affirmative defense would work.
The Word Police: Semantics in a court of law
Aaron Goldstein wandered into a semantic quagmire in both the morning and afternoon sessions today. The attorney who has arguably been the most effective for the Blagojevich may have wandered into some quicksand, but instead of mercifully sinking to a quick demise, he ended up looking like a lawyer doing a song and dance—wet sand everywhere—trying to convince the jury they weren’t really seeing what it appeared like they were seeing.
In round one, the meanings of the words good and could were discussed, along with the exact purpose of that squiggly punctuation mark at the ends of sentences. His point was simple, but it wasn’t well-made, especially in front of an increasingly annoyed Judge Zagel. Goldstein wanted to establish that Blagojevich’s questions—posed in a call to Deputy Governor Greenlee—were evidence that he was consulting Greenlee and that the Governor had not actually made up his mind about the funding for Children’s Memorial Hospital. (For instance, the word could might indicate possibility.) Goldstein also suggested that his questions were informational, and not actually orders telling him to do something. Greenlee disagreed. And in his lawyer’s semantic nit-picking, the judge’s annoyance, and the prosecutor’s barrage of objections, the whole thing came off as a rather feeble song-and-dance.
Goldstein later discussed the precise meanings of the words: Know, legitimate and advice. The problem with this whole line of questioning, and exercise in alienating the jury, is that the exact definitions of these words are irrelevant in court. The only thing that matters is what the witness thinks they mean and in what context they were used. So when Goldstein actually tried to help out the witness by showing him a dictionary, Zagel said: “You know we don’t do dictionaries in court.”
Part of the problem was that the witness, former Deputy Governor Greenlee, had a pronounced dim view of the man he once worked for, and he wasn’t going to allow his testimony to be in any way shaped or molded by Blagojevich’s attorney. It was clear that this semantic battle was going to be a losing proposition as evidenced when Greenlee would not allow Goldstein to characterize his actions as appeasing the Governor but allowed him to say he was placating the governor. Shades of meaning. Little headway in a long day for the defense.
Zagel Part I (Greenlee):
As the prosecution winds up and the defense studies a variety of options, Judge Zagel was both more informative—on a wide range of subjects—and more instructive than usual. Early in the day, he told Goldstein not to use the classic TV-lawyer question that goes like: “So you’re telling the ladies and gentlemen of the jury…” because it has the piece that says the witness is “telling the jury something” and Zagel wants the witness just to give testimony and let the jury decide for themselves what they have been told. Judge Zagel said the problem with this form is that the witness might give a good answer but it will be ruined by the lawyer jumping in to say what he’s telling the jury. This may not seem all that noteworthy but it is indicative of what kind of courtroom Zagel runs, and the kinds of things that both sides will have to do in order to win the case. (And for the record, I have sat in federal court and seen lawyers who spend all day saying that a witness is telling them something.) Zagel also had a problem with questions that are predicated on a fact that is not in evidence, but Goldstein couldn’t seem to stop asking these questions.
At one point, Goldstein was trying to slip Rahm Emauuel in the case by implying that he knew and approved of Blagojevich’s plan to appoint Jesse Jackson Jr. to the vacant senate seat, but several objections were sustained. Finally, Zagel said, “It might help if you actually told me what you’re trying to do, because I really don’t understand.” And after hearing the explanation, Zagel said he still didn’t get it, and it was followed by saying he thought this line of questioning was, “A waste of time.” And only a few minutes later, the judge’s annoyance came out again: “If this is the line of questioning you’re going to ask, there’s no point in going on.”
So what was the problem? Why was Goldstein having so much trouble chipping at the testimony of a prosecution’s witness? The situation might be clarified by taking a look at a few more statements made by Judge Zagel. He said: “This witness doesn’t have an untrammeled faith in your client.” What he was conveying to Goldstein, to the defense, was that it was clear—very clear—that Greenlee not only thought Rod Blagojevich intended to break the law, but that Blagojevich was a fairly unapproachable, delusional man, given to irrational rants, and that the only way he was going to get things done for the State of Illinois, was dependant on finding a way to work around the Governor. At one point, Greenlee said that: “If he waited for approval from Blagojevich before doing anything, the state would grind to a halt.” He was an unshakable witness.
Zagel Part 2 (The Defense’s case):
The defense has indicated that they will employ one of two defenses. The first is similar to the one popularized a few years ago during the era of corporate fraud, and sometimes called the “Know Nothing” defense. In this defense, as Zagel put it, the defendant says, “I didn’t realize it was illegal,” because of lack of knowledge. Zagel said this is possible but it is not usually used when the defendant has a law degree. Perhaps he was recalling that in a trial featuring Attorney Harris and Attorney Greenlee—by the defense’s own characterization—there might be a problem running a defense that featured Attorney Blagojevich.
The second is the affirmative defense. I have written about the affirmative defense in these notes, since the possibility was raised a few weeks ago. From my reading of it, and from what some attorneys who have argued cases in federal courts tell me, this one is a possible but tricky defense. The defense would concede that crimes were committed but would argue that Blagojevich was acting on what he thought was sound advice from attorneys and other advisors whom he had reason to trust. There is likely a Hail Mary quality to this defense, in that it is an all or nothing shot that if not skillfully navigated could fall short and land Blagojevich in prison. If Blagojevich elects to use an affirmative defense, the judge would give some directives to the jury, telling them that the defense is admitting that crimes were committed but that they will have to prove that these crimes only happened because he relied on what he believed to be the sound advice of council. The problem here might be something like a person who has a belief that he can jump over a lake and so he runs and makes the leap. If half way over the blue lake, he realizes that his belief was mistaken, then a watery splashdown is inevitable. If it turns out that the reliable counsel story isn’t working when he is half way into his defense, this could be problematic because the jury already knows that crimes were committed. At least from my lay eyes, I think this is how the affirmative defense would work.
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