The defense’s pie-in-the-sky mistrial motions & the Rule 29 motion
July 17, 2010 at 12:08 am
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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 22nd, 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:
And they later say this is inconsistent because:
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 30th and there was another one on July 2nd. 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 6th 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.
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 22nd, 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 30th and there was another one on July 2nd. 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 6th 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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