The day the mob showed up (for nothing?)
July 21, 2010 at 12:10 am
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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:
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…
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:
- 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;
- 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;
- 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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