Report from Chicago

The prosecution’s case came to a quick end, from both the long and short term perspectives. The defense has been doling out some drivel to the media and the court that they expected a much longer case since the prosecution had so many witnesses or because they promised otherwise. In the shorter term, the prosecution’s case ended when Reid Shar swiveled his head to look backward in the general direction of Judge Zagel, and casually said, “We rest.”

I’ve seen this done with much more aplomb and fan faire for the jury, as in “Your honor, at this time the United States of American rests.” But there has been little resemblance to the usual in this courtroom.

After the day was over, and I was riding the train back to wherever home is this week, I read some things about the trial in the Chicago Sun-Times, and I was reminded why I never pay much attention to the attorneys in a case, while the trial is still going on. As reported in the Sun-Times and elsewhere in the electronic media, Sam Adam Sr. said, “A fair trial is destroyed,” and he later explained, “All of a sudden the government cuts their case short…they misled us. They misled the court.” There is a small group who have watched the trial with me here, and I hope they know by now that I’ll let you know when something as dramatic as being denied a fair trial happens. This wasn’t it. Sam Adam Sr. with his 49 years in the Bar knows it, but it sounded pretty good.

The Blagojevich gathering

I was eating breakfast in the courthouse cafeteria and watching the news on the big screen TV. They have two of them, one for news and one for sports. The news was talking about the Barefoot Bandit, the kid who went on a years-long crime spree, breaking into places as well as stealing luxury cars, planes and boats. His old school Bonnie and Clyde motif garnered him over 80,000 Facebook fans. Some guy’s already writing a book about him, which apparently draws heavily on new age sensibilities. He’s not bad, he had a tragic up-bringing, his doctor’s didn’t prescribe him the right medications, he took drugs, he didn’t take drugs, he got lost in The System. It’s the usual suspects. The TV went on about it for awhile and then flitted to another hot topic. And then I refocused, looked around this courthouse: Lawyers, judges, the public, defendants; all milling around. And I wonder what are the new age elements of the Blagojevich trial? What gives this the Barefoot Bandit treatment?

Political corruption is a replenishing resource and there is certainly no shortage of this commodity, but what makes this particular trial so interesting on a national scale? I’ve sat through high profile trials of government and corporate officials, and they never had nearly as much attention—either locally or nationally—as this gathering in Chicago. So what is it about this one?

The problem with the Blagojevich situation is there is an inability to confidently put a thumb on what this thing means or why people care as much as they do. Is it the Obama connection? Is it the drama of the powerful and politically connected father-in-law and the falling out with his daughter and her husband before they spent their days sitting through a trial? But that’s a local thing. There has to be more. What about the Barefoot Bandit qualities: The son of a poor immigrant’s rise and fall in American politics, the meteoric rise and inevitable crash-landing of a populist politician. How about the man who wanted to be all things to all people and the people who loved him for at least a little while? But I look at the people who come to trial—more and more every day—and the swarming media coverage and there’s a Waiting for Godot quality to it all. We don’t really know what this means. None of us do. But we come anyway¹. Is it the fact that we can create this thing that makes it The Sacred—makes this daily gathering happen—that makes Blagojevich the Barefoot Bandit of Illinois?

¹The other day, I overheard one of the Marshalls talking to a member of the public who had come to watch the trial. “Can you write in there,” she said. “Yes. In fact there are people who write pages and pages of notes. I don’t know what they’re doing, but if that’s what they want to do, they have a right to as long as they do not disrupt anything.” I looked down at my case jammed with pads, thought of a dozen more full ones back at the hotel.

The defense

Before testimony began, in the pre-court juryless sessions with the attorneys, Judge Zagel made an interesting comment, making an assessment of the defense’s case. With the government’s case concluded, it is something worth thinking about over this long weekend. He said: “Absent his [Blagojevich’s] testimony, there is no willfulness.” He meant that if the defense will argue that Rod Blagojevich never willfully broke the law, the only way to get there is through his testimony. But this statement might hint at something else. If the defense uses the theory that the Governor did not willfully or intentionally break the law, and if Zagel’s assessment is correct, his testimony might be the only thing the defense should depend upon. I could be wrong about what I am seeing, and I’ve learned to never put a lot of stock on playing guessing games with courtrooms, but for those who are dazzled by revelations of the Secret Service details that will have to accompany star players like Rahm Emanuel or Valerie Jarrett or even Jesse Jackson Jr. I wouldn’t put much stock on these guys actually being called to appear at this trial.

 Before John Wyma took the stand, Sorosky wanted to confer with Zagel and the attorney said, “Open court or at the side?”

Zagel said: “Is it something scandalous?”

A non-cooperating witness who cooperated

 Wyma told about how he went from being Chief-of-Staff for several politicians, including Congressman Rod Blagojevich, to being a lobbyist where he made over a million dollars in his first year. It was a good time to be a lobbyist in the state of Illinois because he got to meet some of the governor’s friends, people like Tony Rezko, Chris Kelly and Stuart Levine.

Wyma was portrayed as the voice of reason in the middle of all of the schemes swirling around the Blagojevich administration. Besides learning from his new friends Tony and Chris that the going rate for getting state business was $50,000, he heard from an old friend, Rahm Emanuel, who told him that he believed an appropriation for a school in his district was being held up because the Governor wouldn’t release it until Emanuel’s brother held a fundraiser. He was also in meetings where hitting up Patrick Magoon, the CEO of Children’s Memorial Hospital, for $25,000, was discussed. The money was to be raised at a fundraiser that Magoon would host. Wyma enumerated why he didn’t think this was a good idea and presumably didn’t think any of the plans were that good. If all of these schemes, which were going on nearly simultaneously, weren’t enough, he got a call from Doug Scofield, who put some strange question to him about setting up a non-profit for Rod Blagojevich to run. And this non-profit would somehow be a pay-off for appointing a senator. Out of breath yet? Wyma might be the Forest Gump of the trial, wandering through all of the various plans and schemes. And not only that, things couldn’t be better when it comes to Wyma and the prosecution’s case, because, he wasn’t charged in any crime and he was the only one in the cast of characters who went into the FBI on his own, to tell stories about Rod Blagojevich.

But before Blagojevich trades in his expensive suits for a prison uniform, and before we size up his cell, there are some problems with the Wyma testimony.

1. Besides hearing some things from Rezko and Kelly, there wasn’t any evidence that he actually did anything or that he has other first hand knowledge of the whole alleged pay-to-play scheme, nor could he provide anything that said this scheme originated in the Governor’s office;


2. Like almost everyone in Rod’s extended circle of advisor’s, Wyma felt he couldn’t get Blagojevich to change his mind once he made it up, so he didn’t bother to call him with Emanuel’s complaints. Likewise, he said that he got a call from either Monk or Blagojevich, about having Emanuel’s brother hold a fundraiser. He didn’t make that call either. Nor did he call the cops. Nor did he question Monk or Blagojevich or whoever it was that called about whether or not this fundraiser was tied to state funds.


3. When Doug Scofield called about setting up a non-profit for Blagojevich and making it a condition of naming a senator, Wyma said he was confused. That makes two of them. Both Scofield and Wyma said they thought it was essentially a hair-brained idea, and both of them played along a little while doing nothing to further a scheme they both thought was kind of idiotic.


4. After helping broker the deal with Children’s Memorial (he was a hired lobbyist of the hospital) he told Blagojevich that the Governor’s idea of trying to get $25,000 from a Magoon hosted fundraiser wasn’t sound. After getting a voice mail from Rob Blagojevich about this fundraiser, Wyma said he became concerned about the aggressiveness of the administration’s fundraising, which supposedly sent the lobbyist to the feds.

The objections came fast and furious for the rest of the day, often yelled with a pointed barb by Carrie Hamilton, accompanied by some body language-hands-on-hips-cold-stare attitude. However, even though most prosecution objections were sustained and there were even some admonitions from Zagel, the defense managed to get a couple of good points in.

This  time the witness, Wyma in this case, went to the cops, sort of. Finally. Finally someone who said that his consciousness was sending out alarms went to the cops. But wait a minute. The defense raised an issue that casts doubts on Wyma’s whistleblower status, on the he’s-the-one-guy-that-went-to-the-cops thing. Near the time that these calls were taking place, John Wyma was subpoenaed about a situation involving a CON (Certificate of Need, state issued certifications necessary for building or improving medical facilities—these things tend to follow me around, as I have sat through an entire trial where CONs were the centerpiece). It turns out Wyma may have—willingly or unwillingly—been involved in a scheme to sell a CON, and this is why his records were subpoenaed. He was scared. There could be charges and one of them might have his name on it, so he ran to the FBI to cooperate as much as he possibly could. Although Wyma may not be charged with any crimes related to the state’s case against Blagojevich, his going to the feds may not have been entirely motivated by his consciousness and his sense of right and wrong. Did you follow that? Will the jury?

Zagel as the prosecutions case comes to an end

In one exchange, Sorosky argued that Wyma was just giving his opinion on someone else’s opinion. Zagel said: “I don’t think it’s a rule that one witness can’t contradict another. We do it all the time in here.”

Later Sorosky characterized Wyma’s cooperation with the government as spying on Blagojevich. Zagel said: “Why don’t you not use the word spy.”

Governor Blagojevich

After lunch, Blagojevich stood facing the gallery with his arm around Sheldon Sorosky. “He’s the next lawyer  up,” Rod Blagojevich said to his audience, “Anybody want to ask him questions?”

Someone in the fourth row shouted, “Where’s our popcorn?”

The former Governor  of Illinois, a populist governor, replied: “I’m not governor anymore.”

The man next to me said, “If he was still governor, we’d get popcorn?” Maybe so. While I write these notes, he’s up there autographing the tickets that gets the public into the trial. Really. I’m not kidding.

The last government witness

The anchor witness, for the prosecution, was Patrick Magoon, CEO of Children’s Memorial Hospital. Presumably, his slot as the last government witness was probably to leave the jury with an emotionally charged image. The underpinnings of the CMH situation, from the government’s perspective, is that the Blagojevich administration, especially Rod and Rob Blagojevich, were so callous that they would put their fundraising goals above the needs of sick children. (They didn’t ask, but I think a better ending would have been with the showing of Blagojevich taking the oath office, which they played in the morning, during Daniel Cain’s testimony.)

Magoon related how after years of hard work, he finally got the state to approve reimbursements of physicians which would result in more sick kids being treated. And while he was still celebrating, he received some messages saying that Blagojevich would like him to host a fundraiser and that they were counting on him for $25.000. Rob called to make the  request, and an offended Magoon refused to take further calls, but got voice messages.

Adam Jr.’s cross-examination was choppy and broken up by objections and admonitions from Zagel, but his message got through. Neither Rob nor Rod Blagojevich ever told Magoon that a fundraiser was expected in order to get the money. The money was committed. There was never any information or even a suggestion to Magoon that it had been recommitted, or was being held up until a contribution was received.

At one time, Zagel was so annoyed that he told Adam that, “If you continue to violate my order, I’ll give you a time limit.” And it appeared that Adam Jr. didn’t understand what he meant. The day before, Zagel had explained that if the attorneys ask questions that contain a fact not in evidence, he will always sustain objections. The reason why Adam Jr. didn’t get this very well, and continued to do it, is that this kind of questioning is very much a part of his style. The defense will have to choose wisely as they embark on their defense. Toward the end of the cross, Zagel seemed almost at the end of his rope. He said: “Objection sustained. Would you wrap this up please.” He did and the prosecution rested.

See ya
In the near empty courtroom, I was the last one out of my row. Rod Blagojevich said cheerfully, “See you next week.” Stop by the site and we’ll watch it together.

The witness list has been updated—in the link on the right, and various additions will be made while the court is out of session until the defense begins its case next Monday. So check back frequently because there’ll be lots of updates…]

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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.

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Rod Blagojevich bends over the broad white table to confer with one of his lawyers. His face is stern, intense; he speaks rapidly, tersely, and while he is speaking—spitting out legal strategy—his eyes disengage from his attorney, drifting up and outward, searching. The eyes stop on a target. A few more words to the lawyer and he zeroes in on two men in the second row, “You think the Bulls will get LeBron?” he says. He’s many things to many people. Sometimes simultaneously.

In the hall outside, on the way into court, there is a larger than usual crowd waiting outside the cordoned-off hallway with the US Marshal sentries. The well-dressed man smiles, says hello as he wanders through. It’s the post-gag-request subdued Rod Blagojevich. Suddenly he wheels on his heels and raises his hands Nixon-style, the ring finger and pinkie of each hand extended, “As I’ve said all along, I’m innocent of all charges.” His arms fall limp to his side and he ambles into the courtroom with his lawyers in tow.

I’ve known two state governors, only two, and I don’t really know the one from Illinois. Governor Siegelman, of Alabama, was and is a fairly simple man. There was a side of him that was  a hardball politician—maybe too much so at times—but you knew he truly cared about the state of Alabama and he cared about people, also perhaps too much at times. His eagerness to help people might have got him in trouble. But you didn’t feel like the man had a closet full of hats that he was interchanging by the hour and the day and the second. The other governor, the one from Illinois, may not really be that complex, as the greatness he aspired to may have been found only in the smoke and mirrors of his side-show quick-change act.

The Governor stops by a couple ladies to chat. “Where you from?” he asks. It’s his favorite opening line. From there, he’ll go into the history of the place, the old neighborhood, the people he knew from there—important people sometimes—and the inevitable political lineage. It is an engaging dialog, impressive. His eyes are darting again, he gives a quick aside to a nearby attorney, spots Patti a few feet away, gives her a little smile, and just as quickly, he’s back to a neighborhood, a school, a boy in the park, a political homily. It goes on.

A flip again, and he is talking fast, terse but smiling a little through taught lips, “Where you from?” he asks some college kids. He talks history, politics, the value of education. “Study hard,” he says. And in a blink, his expansive rambling talk suddenly collapses back to this place, this courthouse, and he talks about his case.”Watch the dates,” he says. “December 6^th, December 8^th, watch what happens,” and then he’s gone.

In court, we’ll hear yet more sides of Rod Blagojevich, a man who was so frustrated by being passed like a speedbump in Obama’s whirlwind trip to the White House that he curses the President of the United States. It is a man surrounded by yes-men who constantly feed him the only version of reality the Governor wants to hear, who are afraid of his wrath and mindful of the uselessness of arguing with him. It is a portrait of a state, one of these united states,  aimlessly drifting off into space.

In the break, he has the dunce cap on, playing the impish brat. He spots some elderly women in the first row of the gallery, and leans over to frame them up personally. He says with a sheepish grin, “Sorry about the language.” That’s his theme, referring to the rants just played on tapes. It’s the hat he’s wearing now. There are a couple more women a few rows back. “Sorry about the language,” he says again, gives an exaggerated shrug of his shoulders with a sheepish grin.

And then there’s the pathos hat, the one where Blagojevich sounds like he is fully conscious of the opportunity he squandered and frittered away. The “Rezko thing” ruined any chance he might have had for an extended political career and likely any chance he had to maintain or improve his financial viability. There is also the black hat. It’s the one where he might have been some kind of ersatz criminal, the kind of governor who would not only get tossed from office, voted out if he could avoid impeachment, but he would wind up in a courtroom, giving one liners to the gawkers or the remnants of his public. And it turns out that he wasn’t really cut out to run a criminal enterprise either. Perhaps it’ll make for a good defense, but he couldn’t get much of a deal—political or otherwise—for the vacant senate seat he controlled, nor could he capitalize on letting criminal-minded people  get too close to his government, people who would ruin him forever before they were done. And this is not to imply that his guilt is assured in a court of law, but only that it is clear he was flailing about from scheme to scheme. And through it all, he only came up empty, wearing the sad hat that he deftly rolls down his arm and exchanges for the populist hat. He is like an aging one-hit-wonder pop group, doomed to play their big hit over and over again. Taxes. Healthcare. Children. The hard working people who are supposed to support a guy who never liked to work that much and then wanted hundreds of thousands of dollars to take care of his “”f***ing family and his f***ing kids.” What hat is that?

The prosecution’s denouement

The prosecution has said that they will rest either late Monday or early Tuesday. This will be followed by the usual Rule 29 motion, arguing that the defendant should be acquitted because the prosecution has failed to prove its case, which will be followed by Judge Zagel’s denial, and it doesn’t look like any of the twenty-four counts are in jeopardy of being dismissed. Zagel could alternatively defer ruling on the Rule 29 motion until after the defense’s case, or even after the jury’s verdict. But in watching Judge Zagel thus far in this courtroom, I would expect him to confidently deny the motion before the defense puts on their case.

A basic run-down of the various counts in terms of where both sides stand as the case shifts from the prosecution to the defense follows:

Counts that are fairly strongly made for the prosecution, at this juncture include: 4, 13, 21, and 24.

Counts that might be defensible or at least have some room for reasonable doubt include: 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20 and 22. I am not convinced that the counts derived from Doug Scofield or the activities of Lon Monk (with the possible exception of the RICO charges listed below) will hold up.

Counts 1-3 and 23 are the two RICO charges and two conspiracy counts. These could go either way as they are largely predicated on the jury’s determinations they will make on the other counts.

Things could shift in the waning moments of the prosecution’s case as it is likely that John Wyma could be the anchor witness.

 Greenlee

Former Deputy Governor Bob Greenlee was a very strong witness for the prosecution (although he is yet to undergo cross-examination). He was articulate, well-spoken, and was able to testify without any cooperating-witness baggage. His only drawback as a defense witness was that he was at least the fourth witness to say that he did not always tell Blagojevich the truth, and that he often resorted to telling his boss what he wanted to hear. This might be less problematic for Greenlee, however, because he was able to give convincing reasons about exactly why he said what he said or did what he did, and he also gave fairly detailed descriptions of an often irrational or barely in-control Rod Blagojevich.

Putting this irrationality in the blender and spinning it with the various people who were not always telling Blagojevich the truth, or were not always carrying out his wishes, could possibly result in an unusual defense strategy. But although I have listed many of the counts as defensible and possibly assessable to reasonable doubt, many of them are tottering on the edge and it will definitely take an unusual defense in order for Rod Blagojevich to finally get one of his schemes right.

During a call between Fred Yang, John Wyma and Blagojevich, where the Governor says that if he appoints Jesse Jackson Jr. to the senate seat, he’ll get something “tangible and concrete” from his supporters, Yang can’t seem to get his head around what Blagojevich is saying. Even within the wheeling-dealing nature of politics, there are still rules and boundaries and most people know what and where they are. But Yang is enthusiastic about using the senate seat as a play to get something, and at some point on the tape, he delivers a great line (especially if he could have known that some day it would be played in court).

He said: “It’s not personal. It’s just business.” Heard that line before? It’s from The Godfather, probably not the best quote to use when all the phones are tapped.

Jesse Jackson Jr. and Patti Blagojevich

There’ll be more on dropping the Jesse and Patti pieces into the story over the weekend. But for now, a couple of things came out of some of the tapes. It looks like Jesse Jackson might have known that large sums of money were being offered to secure his place in the senate. It also looks like Blagojevich was planning on seeing Jackson on the day Blagojevich was arrested, December 9, 2008. Besides the fact that the Tribune broke the story that the Governor was being taped five days before. which allegedly caused him to cancel a meeting with Jackson, the announcement or the agreement for the senate seat could have been made on the night of the arrest.

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Memo to DOJ- re: preparing witnesses who’s story has been memorialized in FBI 302s.

It isn’t quite déjà vu, but I once watched an entire months-long trial in which a large part of the defense’s strategy was to exploit discrepancies between the witnesses on-the-stand testimony and FBI interviews which were transcribed from the agent’s raw notes to governmental forms, called 302s. But the witnesses in that trial were well coached…er…prepared. When the defense asked about the discrepancies, they had a well worn mantra that went something like this: I don’t know what’s in those notes or how they took them, they must’ve misunderstood what I was telling them. The truth is what I’m saying today. There wasn’t much the defense could do after that.

In the trial at hand, there have likewise been discrepancies between the FBI 302 notes and the on-the-stand testimony of various witnesses. But there is no mantra and the defense has usually been able to get the witness to acquiesce to the notes, admitting that statements must have been said because they’re in the notes. And it is one of the few exploitable cracks the defense has found in the prosecution’s machine-like case even if they do not always handle prosperity well.

Road Building

Most of the morning testimony was devoted to Gerald Krozel, also known as the Construction Executive, in the parlance of the indictment. Krozel is an elderly semi-retired man of 70. He would sit up in the witness box, staring straight ahead with both hands in front of him on the desk. Krozel spoke slowly and deliberately, in a soft, low gravelly voice, often asking the attorney in front of him to, “Please rephrase the question.”

His story had been that Blagojevich had talked about a $6 billion road project in close proximity to discussing fundraising, and the need to donate money to his campaign fund ahead of the deadline set by the ethics bill (when people and companies with large state contracts would not be able donate to the governor). During the prosecution’s questioning, in his slow precise style, he said that he felt these two things were “connected.” And that he felt pressured by the Governor. The proximity part of the story, and even his feeling of pressure, were probably true, but the word “connected” and the very deliberate way he inserted it into his answer, sounded like it might have been supplied to him.

In Blagojevich’s cross, Goldstein went over discrepancies between Krozel’s testimony and what was recorded in the FBI 302s. The defense counsel also brought out that Rod Blagojevich had amiably told Krozel to “Call if he needed anything,” but that he never called and never told Blagojevich that he was uncomfortable.

It wasn’t a bad cross, as Goldstein has been reliable for the defense, but he should have walked away and wasn’t able to quit after making his best points. After he asked Krozel if he felt pressured now—on the witness stand—and then went on to bluntly ask Krozel why he lied to the FBI. Krozel looked up, his eyes wide and he said in his low gravelly whisper that the FBI had come to his house at 6:30 in the morning, “While I was dressing my wife.” He went on to say that she had an illness, and that, “She can’t walk, she can’t write. And I just wanted to get them out of my house.” The courtroom was somber, silent, the only smile I saw was on Rod Blagojevich who was apparently not listening—wearing one of the many hats he has—and chatting with Adam Sr.

[More to come—it was a long day…fatigue and all that…]

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The Dog Days of Trial

It is the 5^th week. We started just after the BBQs were brought out and fired up for Memorial Day and now the grills have been well tested through the mid-summer’s holiday, 4^th of July. There’s a searing heat wave on the Eastern Seaboard and hurricane season has a special significance and concern in my home state of Florida this year because of the consequences a tropical storm might have on the oil spill.

At this point in a trial, the excitement has died down and the interest wanes somewhat, at least until the defendant takes the stand or the closing argument comes up, followed by the long awaited summer-long punch line. The talkers in the daily line have found their own group, a little clique that grows or subsides as the days drift by. They excitedly talk about the trial or about Illinois politics or even procedural matters of standing around a courthouse, waiting to see a trial. The reporters scrabble around like little fish in an overstocked pond for morsels that fall from the overhangs. They badger the principles relentlessly, if they can separated one of them from the pack and then they can hear the same tired words formed into the lines of a story that’s been told many times before, and when they tire of this, the reporters go off to badger each other, carrying on bitter little feuds against the backdrop of a declining print industry and media paradigms that are changing and shifting as the world moves on.

Rod Blagojevich still treats what’s left of his throng as if they’re a frenzy of paparazzi and as if his demise is really all that important to them, and his lawyers follow suit. It is left to wonder if Adam Sr. comes in each morning and yells, “Hello everybody,” when he’s showing up for a drab motion call or defending a client who’s a  bit more obscure.

In the court, Blagojevich is much more subdued than his earlier persona. The witnesses drone on, filling in little gaps in the government’s case or patching up the spots not yet touched in the indictment. The prosecutors were settled in from the beginning and have proceeded in machine-like fashion. They look like a precision drill team and although there may be some exploitable gaps in their case—some pieces they would really like to have shored up a little better—they appear to be a focused bunch, trying to execute their case with as few mistakes or obstacles as possible.

On the other side of the aisle, the defense sits board-room style at their table, and a couple of truths have become evident in the Dog Days of Trial: Sam Adam Jr.—Blagojevich’s marquee attorney, at least the buzz going in was that he was the dynamic talent that gave the brilliant closing in the R. Kelly case—has not been that effective in Judge Zagel’s courtroom, and although he’ll probably give an emotionally charged closing, the defense is going to have to rely on the other attorneys if they’re going to successfully make their case to the jury.

It isn’t just the objections that are hurting him or the admonitions from the judge (the defense is now up to three motions for a mistrial, based on Zagel’s rulings) but it is clear that amongst the prosecution’s legal strategies is a plan for Adam Jr. because they know how to play him. Adam Jr. depends on a rhythm and flow to build a compelling story for the jury, but there are predictable points where this style will be open for objections and the prosecution is always there, waiting for those moments. One problem he has is in his rush to build the momentum, Adam Jr. often cuts corners for dramatic effect, but the slow and plodding prosecution team is always there to insure that all of the legal bases are touched, and that there really is a path through the courtroom to the point he ultimately wants to make. Adam Jr. will then stumble on, when he is stopped like this, but with most of the witnesses he has questioned, with the notable exception of Lon Monk, he has not been able to elicit much that has been helpful to his side.

And also, in the Dog Days, with the heat rising, we might sleepily wonder how long the defense is going to want to send Sorosky in with a can of gasoline to turn an otherwise fairly benign witness into an incendiary device for the prosecution.

It is indeed the Dog Days of Trial, and there is a sense of weariness, a pallor, that hangs over the courthouse on Dearborn Avenue. Like those heady days when Governor Blagojevich promised to usher in a new era, back in 2002 (on the same day that indicted Governor Siegelman would lose a narrow race, in Alabama) it was all new, a fresh start; and it has been just a month ago now, when people excitedly crowded around the US Marshalls to watch the jury be seated, to watch Sam Adam Jr. make his emotional appeal to the same jury. It was a fresh new world. Time passes—Zagel rests his head on his hands, glasses off, staring straight forward, explaining another legal principle as it is applied in his courtroom—time goes on.

It’ll pass away, all of us will. And Rod Blagojevich, who fought and squirmed under the omnipresent threat of marginalization, will finally achieve just that. In the still air of the Dog Days, the bell is growing louder. We’ll soon move on, flitter off to other places, flame out, die. The Dog Days of Trial like the Dog Days of Summer is just proof that everything, except maybe Governor Blagojevich himself, will evolve and change in it’s season—spring and winter.

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A potential headache for the defense

The end of the Patti-working-for-Rezmar thread prompted some life in the defense’s quest. It was established that Patti got a check for some work she supposedly did, but no one was able to definitively say that she did not actually work for the money. But more importantly, the banker that worked at Rezmar said that Tony Rezko would occasionally give him checks. He could not say how many he got or how much money he got, only that it was “probably over $200,000. This piece of information is more than a little significant because it shows that the method Rezko used to pay Patti was not unusual and certainly no different than the method he used to pay other people he worked with.

However, if that was a boon for the defense, it was short lived. Other witnesses today included an FBI agent who was called to talk about Blagojevich interviews in which Blagojevich said that he kept a fire wall between state actions and fundraising, and that he didn’t keep track of who contributes to him and doesn’t want to know; and a couple of people were called who were Blagojevich’s finance directors, who basically said that the Governor cared very much about fundraising and knew who was contributing to him.  This portion of the case was put on in order to satisfy count 24, an obstruction of justice charge.

The problem with this charge is that if Blagojevich made the alleged statements to an FBI agent, he was being more than a little stupid which it might be supposed could fit into an increasingly more likely defense built around the Governor who was alternately a fool and a dupe. Is it really even remotely possible, in the modern political arena as it is practiced in America, that an elected official would not know who his or her major contributors are and how much they contributed?

The “firewall” statement is defensible because the defense could argue that Blagojevich believed there was separation between contributions and state actions, and any statements or actions that seemed to connect the two were either done by others unbeknownst to him or they were unintentional coincidences. But the other one could be a real problem because apparently Rod Blagojevich lied to the FBI about what could easily be considered a legal activity. So even if the defense can successfully show that his fundraising activities were not illegal or even unusual for a politician, he could still be found guilty on the obstruction charge because of the lies he told to investigators.

And this might be the prosecution’s silver bullet ensuring they will at least get Blagojevich on something. I have written about obstruction charges before, that they are currently a DOJ tool currently in vogue as tag-on offenses for white collar crime. Sometimes the nuances of bribery and extortion are not all that accessible to the lay jury, and the RICO charges are too complex. So even if a jury has a difficult time coming to a unanimous decision on these substantive charges, the obstruction of justice charge is a prosecutor’s life line. That is very clear in this case where Blagojevich could be found guilty of lying about legal activities and crimes he may very well be acquitted of.

This may explain why the defense turned the cross over to the oft-sledge hammer wielding Sorosky to make a spectacle out of taking verbal whacks at the 32 year old diminutive blonde woman on the stand. At one point, Sorosky was practically yelling at her: “You don’t know what conversations Blagojevich had with these men…” And she quietly and carefully said that, in fact, she did, as she was on the calls that she patched through to Blagojevich. The jury seemed annoyed by Sorosky while Zagel leaned forward, listening intently, waiting to sustain the objections that would come.

And so it went in the Dog Days of Trial.

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The government has demonstrated some fun things you can do with charts while trying depict how Rod and Patty Blagojevich derived personal benefits from various conspiracies involving Tony Rezko. Note that the two charts reporduced below are created from the same data set, and both show a spike in 2004. But the one on the first one makes  it look like suddenly Rod and Patty Blagojevich had an astronomical windfall. The chart appears to show that the spike was many times what the Blagojevich’s were taking home in other years, but if the scale of the years is adjusted and it is not done by lopping off of the top, then things don’t look so bad.

The link below shows the original chart, prepared and displayed by IRS Agent Schindler.

     



Link to the original chart: pchart

More preview of the defense:

Count 4: This count concerns Rod talking to Rob about extorting the Racetrack executive, the Construction Executive and appointing Blair Hull or Jesse Jackson Jr. to the senate seat in exchange for campaign contributions. The prosecution has not covered all the evidence in this charge yet, namely the deal for the senate seat, but it is unlikely that the part concerning the Racetrack  Executive or the Construction Executive will stick.

Count 5: This count refers to a call between Blagojevich, John Harris and Doug Scofield, where they discuss how they could benefit from appointing Valerie Jarrett to the senate. This charge has not been strongly made, especially since both Harris and Scofield have admitted to lying to Blagojevich. Although Scofield tells Blagojevich that some of his ideas don’t work, he appears to be encouraging the Governor on the general principle of getting something for the Senate seat. On the other hand, on this count and other ones like it, Blagojevich did make the call referred to in the indictment, and it was heard in open court—so the jury could conclude that such a call was made—but the lies and half-truths told to Blagojevich by Harris and Scofield, along with Scofield’s encouragement could give the call enough context to negate it’s criminal value.

Count 7: This count refers to a call made between Blagojevich and Doug Scofield, where he talks about having a 501(c) (4) or (3) set up in exchange for naming Valerie Jarrett to the senate seat. Since Scofield was says he was placating Blagojevich and since it appears there was never a well-formed planned that had any possibility of being carried out was ever advanced on this call or otherwise, it doesn’t look like this charge will hold up.

A couple of things to think about as this review continues:

1. In order to make the RICO charges hold up, I believe the government will have to prove that the scheme benefitted Rod Blagojevich. There were only three scenarios where money actually changed hands in the course of the trial. 1) The Kjellander—Aramanda—Rezko—Rezko associates money trail that doesn’t directly put anything into the hands of Blagojevich; 2) The cash payments Rezko made to Monk (money stuffed in UPS envelopes); and 3) The money paid to Patti Blagojevich for a job the government maintains was a sham. The first two payments not only do not directly involve Blagojevich and there is no proof that they are connected to the Governor, and they cloak and dagger way that they were paid is markedly different then the money that was paid to Patti Blagojevich. Making the case that there was clearly a benefit for Rod Blagojevich might be difficult.


2. It has been promised to the jury that both Rod and Patti Blagojevich will take the stand, which could be interesting if it appears the defense is winning the case before it wraps up. At that point—the end of a trial that they’re winning—putting the Blagojeviches on the stand could only hurt the defense, but they are kind of trapped because they have promised the jury that they will appear. And although the government is barred from eliciting any inferences from the defendant not taking the stand, the defense might end up being trapped by their own bold promise because they will be obligated to make good on the boast they made to the jury. If they are really winning the case by the end of the trial, an appearance from the obviously volatile Rod Blagjevich could only hurt them.

[More going through the count, and defense preview tomorrow. Happy 4th of July—don’t forget those who have gone before us, who have lived and sometimes died in order to enhance a great idea and to make this place a more perfect world for us all.]

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The government has said they are about ready to wrap up their case, presumably without a court appearance from either Mr. Rezko—who would be a hostile witness for the prosecution—and the drug addict Stuart Levine, one of Rezko’s baggage-laden associates.

So with an impending new phase of the trial about to commence, it might be a good time to take a look at what the strategies the defense has in mind, in light of what they have been able to accomplish, or not accomplish, during the government’s portion of the trial. Judge Zagel has said that he sees a couple of themes they might use, but they conflict at some places. And he has also said that they might employ an affirmative defense.

Of course I don’t know exactly what Zagel has in mind, but we can speculate some from observations gleaned from sitting in the courtroom on every day of this trial.

1. There is a theme that Blagojevich was alternately delusional and given to occasional rants—possibly some kind of Cognitive Dissonance thing—and that some people around him were inclined to either take his rants seriously in order to defuse the Governor’s anger, or in order to humor—appease—the boss.


2. There is the theme that while Blagojevich was myopically focused on doing good things for the state, such as the usual suspect-themes of jobs for working people, no taxes and healthcare, and while he was busy tending to these important issues, some people, following their own agendas, were likewise busy selling the state and abusing their official positions. His obsession with fundraising, along with his insecurities, could have been skillfully exploited by certain close advisors so that he believed he was only being an earnest politician while these plots were going on around him. I do not believe this particular approach would work well in covering all of the charges against him, so some of it could be incorporated into the others.


3. And there’s the Affirmative Defense which I believe means they would concede that some crimes happened, but it would be argued they were the end result of Blagojevich’s using the advice of what he had good reason to believe were reliable and trusted cousel. It is worth noting that in many of the meetings that were discussed, the defense often asked if chief counsel Bill Quinlan was present. This may have been to carefully set up this theory because Quinlan should have been the one to advise him that various things he was talking about were illegal, but he didn’t. Both of his Chiefs-of-Staff—Monk and Harris—and one other advisor that he counted on, Scofield, all said they lied to Blagojevich in order to appease him.

The testimony and the charges (part 1)

So let’s go down what is good and bad, for both sides, about the various charges.

• Counts 1 & 2-The RICO Charges: These counts include most of the individual things listed in the indictment with the addition of the conspiracy that was supposed to exist between Rezko, Monk, Kelly and Blagojevich. We’ll take the individual counts as they come up within their own counts, and just focus on the four-way conspiracy for now. Monk puts Blagojevich in a room with the others where a conspiracy was supposedly being discussed. That’s the best part the prosecution has. But on the side of the defense, there is no corroborating testimony since Kelly is dead and (it looks like) Rezko is not going to testify. Monk was not able to identify a single corrupt plan that was discussed and with the exception of the money that Patti supposedly earned from her job with Rezko, no money trail leads back to Blagojevich. (In order for Blagojevich to be found guilty of the RICO charge it must be shown that he benefitted from the conspiracy—unlike the other counts—which will make the payments to Patti very important). The only one that it has been shown who is being surreptitiously paid, is Monk. As I pointed out in yesterday’s post, the payments by check to Patti do not have the  tenor of the cash-in-an-envelope payment to Monk. And as Monk was shown to have taken great pains to disguise the payments he made to other people, in earlier testimony,  it seems that if he believed there was reason to suspect the money was dirty, he would have made similar efforts with Patti.  Prediction so far: Much of the RICO counts will depend on how the jury sees the individual counts. The jury also must see the payments to Patti as a benefit to the Governor, which I think is a little weak. The rest of this will depend on how much stock the jury will put on Blagojevich being in the room where a conspiracy was being discussed, which they may not decide upon until they see Blagojevich on the stand, because this one will after all be a he-said/he-said thing.

The problem with the rest of the counts, from the defense’s perspective, is that most of them do not allege that an actual crime took place, but only that the governor talked about crimes that he intended to take place. The key words here are talked about or discussed, and that he intended to take place. The discussed component makes it easier for the prosecution to convict and the intended component makes it easier for the charges to be defended against.

• Count 3: This one is a rather omnibus conspiracy charge, with includes the above-mentioned conspiracy, as well as controlling the TRS board, the trading of appointments to boards for campaign contributions, the selling of the senate seat, the search for employment for Patti, the shakedown of Rahm Emanuel’s brother and Children’s Memorial Hospital, and the shakedown of the racetrack executive and the highway contractor. Most of the parts of this count were based on the honest services statutes which were left in tact by the Supreme Court, since they pertained to bribery or extortion. This one would also be better addressed by reviewing the individual counts as they come up. But briefly: Most of the charges, as they stand right now, are based on rather weakly made arguments, with the possible exception of the TRS board and the problem with board appointments.

 To be continued: More preview later…

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Blagojevich’s lifestyle on trial

I know prosecutors like to do this sort of thing as I’ve seen similar testimony in other trials. They must feel it registers well with jurors, but I’m always a little uneasy when the defendant’s lifestyle is put on trial. I know the government wants to establish motive and the fear that rising legal fees might have impeded a lavish lifestyle, but from the gallery, I don’t care nearly as much about what Blagojevich spent his money on as I care about where he got the money from.

Toward that end, in numerous charts cobbled together from the Blagojevich’s financial records and displayed to the jury, and a number of documents including all of the family’s tax filings from 2002-2008, the only ones that showed a particularly dim money trail were the checks from Patti’s questionable career in the employ of Tony Rezko. And even that is problematic because the checks appearance on the IRS agent’s chart shows that the man who apparently went to great lengths to disguise his payments (remember the Kjellander to Aramanda to various Rezko associates chart) made no effort to disguise these supposed straw payments to Patti Blagojevich. The cash wasn’t stuffed in envelopes like it was to Monk, it wasn’t routed through an associate like the Aramanda money, it was instead written on company checks and Patti deposited them in her bank account and dutifully paid taxes on this supposedly spurious income.

Besides that, we were able to confirm what another witness mentioned, that Blagojevich was (and probably still is) obsessed with clothes. I’ll have to admit he was wearing about the nicest tie I’ve seen, at least since the Scrushy trial, which featured a defendant who once had a well-known infatuation with Hermes ties. Rod Blagojevich told me that it is indeed embarrassing to have his lifestyle splayed across charts and screens for all to see, and that he has not bought a suit for eighteen months (“Don’t need to”) but of course there was no cross-examination.

I really don’t know how juries view this kind of rendition, but it doesn’t seem to be  helpful to the case at all. And it only seems to dilute the main points of the prosecution’s story.

To doubly undermine this trial by IRS-charts, Goldstein made several pretty good points on cross examination.

1. The IRS compiled a chart of Blagojevich’s top ten expenditures, of which clothes was number one (over a whopping $400,000 in eight years covered). Goldstein pointed out that taxes paid by the Blagojeviches would have been number one on the chart had it been included in the family’s top ten expenses.


2. Goldstein mentioned that the same agent, appearing on the stand earlier, had analyzed cash withdrawals by Monk, but did not do this for Blagojevich.


3. The question Goldstein didn’t mention but also might have been worthwhile is that the agent didn’t have a breakout of cash deposits, such as the cash stuffed in the UPS envelopes, that Monk received.

The jury might see it differently, of course, and in the course of the trial it might not make much of a difference anyway, but it all seemed like kind of a waste of time.

With this important piece dispatched, the government played one long call with no witness on the stand. The call depicted Blagojevich as a nearly unhinged governor yelling at his advisors about how awful it is to be governor. He is squirming under the real possibility that he’ll be impeached, and under the knowledge that the “Rezko thing” has torpedoed his chances for riding out of Springfield on Obama’s coattails.

His chief counsel, Bill Quinlan is blunt about the situation he is in, and was perhaps rather prescient as well: He says that if he appoints himself senator, “I think it’ll make you a national joke.” Quinlan goes one to tell him that Obama is not going to trade the senate seat for his reputation. “President’s don’t do that,” he said. And as the discussion, which included both Patti and Rod, went to hooking Patti up with positions on national boards, it is clear that the Blagojeviches, in their desperation, didn’t really get the writing on the wall. Neither of them did. Maybe they do now. Maybe not.

A light at the end of the tunnel

At the end of the day, there was some important news from the prosecution. Reid Schar said that the prosecution should rest either next week or early in the following week.

Among other things, it looks like Tony Rezko is off the table for the prosecution, although this is not much of a surprise. Besides the obvious baggage Rezko would bring from his cell to the courtroom, there is also the issue of the letter he wrote to his trial judge, in which he defended both Obama and Blagojevich. And if Rezko were to testify the defense would push for that letter to be part of the evidence. Earlier in the trial, Zagel said that it is his general experience that calling a witness who has so much baggage hurts the side who called him, in this case the prosecution.

Zagel has given the Blagojevich team until the middle of next week to deliver their witness list. He also said that they will need to tell him under which theories they will be defending their client, and suggested that he has seen two themes which he said sometimes conflict. He also said he believes they might be thinking of employing an affirmative defense—I have some feelers out to my legal consultants about what this might mean in a criminal case, as it shows up more often in civil litigation, but I believe that they might advance the notion that although crimes did occur, they were the unintended result of the defendant acting on the best information he had available, that came from what he thought were reliable and trusted resources. If this is an accurate or semi-accurate assessment of what Zagel is referring to, this might be a difficult road to navigate because it shifts at least some of the burden of proof from the government to the defense.

[It is Friday, and there is no trial today as we head into the 4^th of July weekend. I will update this later today and will post related material throughout the weekend.]

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After a rather subdued and Patti-less Tuesday, the defense table was particularly boisterous and animated before the day’s session began. Blagojevich had a greeting card someone had sent him and he was passing it around the table, sharing it with all of his attorney-pals, and then he handed it off to Patti: “File this with the rest of them.”

The one place where President Obama is truly part of this drama—where he was perhaps an active participant—is probably when he sent a message back to Blagojevich through Rahm Emanuel that said he would be “grateful and appreciative” if the Governor would appoint Valerie Jarrett to the senate seat vacated by the newly elected president.

These two words were like daggers stabbing at the side of Governor Blagojevich. He referenced them in at least six taped phone calls. And it is one of the prisms of this trial to look through where we can clearly see a couple of different strains play themselves out. To Rod Blagojevich, these words pierced his heart. He had always been a politician on the rise from State Representative to Congress to two terms as Governor, and then with a burst, the ride flamed out and he was in a free fall after that “Rezko thing.”

He was once a player, a force to be reckoned with—at least it seemed so to him—he was the governor of one of the most populated states in the country and that ought to command some respect. Now that he wants something, hopes for something, the best he can get is “grateful and appreciative.”

But squint a little bit now, look back at the prism. Take away Rezko, and look through the eyes of the same politician on the rise. It was really a quick trip from local politician to the statehouse and now the President of the United States is grateful and appreciative. The phrase Tony Rezko would use with nefarious connotations was a “team player,” but absent Rezko, Blagojevich could be a player on the President’s team and then who knows? Down the road a post might be waiting, and there might be another political campaign, this time for his own ride into the White House.

There are people today who are likely grateful and appreciative to Tony Rezko, because if nothing else, he caused the flame-out that short circuited the arc so it landed in this courthouse. But it is interesting how Blagojevich’s near obsession with the “grateful and appreciative” message illustrates how far he had fallen from the path of his initial trajectory as a politician. These words showed up again today, in calls to Doug Scofield. After hearing Blagojevich bitterly spit them out in numerous conversations, spread across several witnesses, it is worth taking a look at what they mean to him, and what they might have meant to a politician who was on a different path.

A short time Deputy Governor and a long time advisor

Doug Scofield was a good witness for the prosecution, but throughout his time on the stand there were tiny cracks in his story, little eye-brow raising pin-pricks that could give the defense an opportunity to turn a strong prosecution witness into a couple of bricks in the foundation of their own case.

The first calls of the morning had Rod Blagojevich expressing his frustration and raw anger over having a fellow state politician shoot out of the Illinois General Assembly and go all the way to the White House. Although the often financially-strapped Blagojevich did seem very interested in money, glimpses of his anger and frustration could be important to the prosecution in order to establish a powerful secondary motive. This is true because not much money changed hands in all of the various schemes, and no money apparently made it into Blagojevich’s pocket (with the possible exception of the allegations concerning Patti’s job with Rezko), so it would be worth it for the prosecution to show the jury that there may have been other factors that motivated and drove Blagojevich to break the law.

With Obama heading to the White House, he tells Scofield about the desperate sense of frustration that he has: “There isn’t any upward mobility,” Blagojevich says. “What can you do with governor?” And then he says what a lot of people in the courtroom have been thinking: “Something’s really fucked up in my head, Doug.” And as this futility washes over him, “I could deliver pizzas. Maybe that’s my destiny. I feel like I’m in a bad place, like I failed.”

We know intuitively, even without the money, the loot from a haul, that desperation can cause people to break the law. It is clear that frustration over the impending doom he feels from that fallout over Rezko, and his anger from being left in Illinois while Obama zoomed past him to the White House, led Blagojevich to feel he was owed something, that he had a sense of entitlement. Regardless of the outcome of this trial, that much is clear.

Scofield was a good witness for the prosecution because he was one of the few substantial witnesses we have seen in the trial that was neither a pled-out cooperating witness nor was he testifying under immunity. He also participated in phone calls with Blagojevich, where the governor was sounding more dire about his plan to exchange his appointment of a senator for official action from the White House that would benefit him.

The problem with Scofield as a prosecution witness is that there are numerous places in the call today where it sounds like Scofield, who at the time was acting as an unpaid advisor to Blagojevich, was encouraging or giving approval to Blagojevich’s plans. Like Harris and Monk before him, Scofield was the third person who served in an advisory capacity (he briefly was a Deputy Governor during Blagojevich’s first term, but was only an advisor and confidante by the time of Obama’s election) who lied to the Governor. He also said that he found it easier to placate Blagojevich than to tell him that what he was doing or thinking was wrong. One person might be an anomaly but two or three people, all doing the same thing, is a trend.

Even though Scofield said on the stand that he thought most of his plans would not work, that Blagojevich had no chance to get a cabinet position, and that his plans to run Change to Win or establish a 501 (c)(4) did not sound like feasible ideas, he didn’t always tell Blagojevich his true feelings. And most particularly, he seemed to be encouraging Blagojevich that hanging onto the senate seat while trying to force the White House into negotiations was a good idea, he would somtimes use political operative-speak, and call it a good play.

Aaron Goldstein picks up some momentum

At one point, Goldstein says: “Do you know the relationship Bill Knapp had with Governor Blagojevich?” He gestures at where the Governor is sitting, who leans forward like he is at a meeting between himself, his attorney, Goldstein and his advisor, Scofield. Goldstein steps back so there is a direct line of site between Blagojevich and Scofield, and it is just like old times.

Today’s Zagelisms

• Near the end of the day, Zagel said to Goldstein, “Are you almost done?”
  Goldstein looked at the clock, thinking that Zagel was ready to call it a day, and said, “No.”
  Zagel said, “Then go onto something else more appropriate.”


• After the prosecution made two objections to one of Goldstein’s questions, Zagel said, “Why don’t you ask him this? What did you expect to accomplish?”
  Goldstein, slightly startled, said to the judge, “Could you repeat the question?”
  Goldstein turned back to the witness and asked him Zagel’s helpfully supplied question.

In the hallway after lunch, Rod Blagojevich was up to his usual antics even though he has been slightly more subdued this week. A few people were milling around the elevator, and they spotted Blagojevich coming through so they wanted to have their picture taken with him. It is a well known edict in the court that there are no pictures or electronic capturing of anything on the twenty-fifth floor. There are at least three signs that attest to this rule. The US Marshalls saw the scene developing and shouted, “No pictures,” and rushed to break it up where a sheepish and smiling, laughing, Blagojevich moved away from the picture takers. So here’s the problem: Whereas it is clear the jury isn’t likely to be out milling around the elevator or anywhere else unsupervised on the twenty-fifth floor, but here’s a guy on trial for breaking the rules of our society, and all the time chanting a virtual mantra that he didn’t do it. And there he is breaking rules and laughing about it. In consideration of today’s theme that there was a delusional strain and also a strain of people who just wouldn’t set the boundaries for the governor, it is easy to see the back-and-forth pendulum for an out-of-control guy with an insatiable hole in his soul, who’s lack of judgment will either save him or send him to jail

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I. A juror’s task: Anatomy of an argument (part 1)

Evaluating the Harris testimony—in total—involves putting on a filter. It is not that hard to see some of the case the way the prosecution wants it to be seen. And if that version is added to the things we already know—maybe from other trials, maybe from our knowledge of Illinois politics, maybe from our own sensibilities—it makes for a pretty well defined story line. But at the same time, it is not hard to see the case in the way it has been shaped and molded by the defense. Besides the facts we know from both inside and outside the courtroom, there is also a struggle to divorce ourselves from the feelings, emotions and intuitions that make up pre-determined conclusions.

Woven through the Harris testimony and prominently featured today, was the situation concerning the allegation that Blagojevich was intent on selling Obama’s vacant senate seat, especially as it relates his use of Lisa Madigan and Jesse Jackson, Jr. The prosecution’s rendition is that Blagojevich immediately saw Obama’s seat as a ticket to bigger and better things than his now too passé and too confining (post Rezko) governorship. He had heard, through Tom Balanoff, a union leader who had supported both Obama and Blagojevich, that Valerie Jarrett was Obama’s choice to fill the seat. What Blagojevich did not know was that Obama’s actual preference was for Jarrett to join him in the White House, and he also didn’t know that Jarrett was really just a pick that was mutually acceptable to both Balanoff and Obama, but she was not the first choice of either of them. Obama thought she would be a good pick, and would not oppose the choice, but he said that he was not officially backing any candidate. In the meantime, Blagojevich devised a strategy that he would imply he was thinking of appointing Lisa Madigan because he had negotiated a brokered good-for-Illinois package from her father, House Speaker and Blagojevich nemesis, Michael Madigan. But it was a ploy, merely a diversionary tactic to make his opponent in the political gamesmanship think that he would have to give something up in order to make Blagojevich change his mind. With his cover story in place, and a meeting set up, Rod Blagojevich made his play.

At the meeting, Blagojevich said he was thinking about Lisa Madigan. He also said he would like the cabinet position of Secretary of Health & Human Services. Balanoff told him right off that the cabinet position wasn’t going to happen, and then Blagojevich launched into his less specific Plan B, an unfocused idea that he would work for union organizations to promote healthcare and other initiatives. (Kind of like he wanted Balanoff’s union president job.) Balanoff told Blagojevich that’s not the way unions work.

Later, in a meeting with Valerie Jarrett, Balanoff would characterized this part of the meeting as “goofy talk,” and said that both he and Jarrett laughed about it. There is more to the selling of the seat than this, as the scheme would later go into a second phase after Valerie Jarrett’s had accepted a job in the White House administration, and so her name as a potential candidate was off the table. Blagojevich was unable to identify any other White House bargaining chips, post Jarrett.

Now comes the defense on behalf of Rod Blagojevich. It is true that he hoped for a cabinet position, but in the early going of the argument, there is no evidence that he directly said that he would exchange the Jarrett appointment for the position. Balanoff thought his request was “goofy” but he did not say that Blagojevich made it contingent on anything in particular, at least not at that meeting. There are calls and statements that has Blagojevich saying that as distasteful as it might be to him, he will choose Lisa Madigan—a rival—for the good of the state. That sounds good, especially coming by way of candidly taped conversations. It is left for the jury to judge if this was a bona fide plan or one that was only a feint to make his play for a cabinet level position. The jury will also have to decide whether or not the Lisa Madigan story was just a ruse, and if so, was it political gamesmanship  or a criminal attempt to trade his duty as the governor for a specific act that benefited himself.

So sit in the jury box for a moment. Wipe away what we already know or believe. What’s it going to be?

There are a few more things to consider in this part of the jury’s task. After Jarrett was gone, Blagojevich added more and more names to his list. His search for a suitable African-American could be seen as legitimately trying to accomplish political goals. And we also have to factor in Balanoff’s assessment that it was “goofy” talk, coupled  with the daily Blagojevich odyssey of the Governor lurching around like a kid trying to decide which ride to go on at Disney World: Ambassador to the UN, ambassador to India, the head of a 501 (c) (4) or (3); the head of the union organization Change to Win.

The “goofy” factor can cast the whole episode as the unrealistic ramblings of a functionally lame duck governor. So now let’s get back to the jury box and make the call. We’ll add a witness and some new details into the mix and get back to this later.

II. Harris’ last moments

There was a slight shift in Harris’ testimony today that was detectable if almost imperceptible. This was his fifth and final day on the stand (at least as a prosecution witness) and he started using a rather stylized phrase. Harris referenced conversations he said took place during “calls recorded or not recorded,” indicating there were other things he said about the subject that were not on the recorded calls. This phrase was not all that remarkable except that I don’t think he used it during his first four days on the stand. He also gave a couple rather long and deliberate answers that sounded rehearsed and were perhaps the end-product of  overnight discussions with his prosecutor handlers. This slight change in Harris’ testimony was neither that remarkable or that nefarious, but it fits nicely into the context of the juror’s task.

III. Balanoff: Sorosky’s cross

When the cross examination of  Tom Balanoff began, Sheldon Sorosky started his examination by coming at the witness with a ripping and slashing chainsaw. It was clear, in the courtroom, that the union leader was none too happy with Blagojevich, whom he had once supported, and he was particularly upset when he recalled how he felt Blagojevich, the man he once supported, had used his friendship to play him. And he was even more unhappy to have Blagojevich try to exploit Balanoff’s friendship with President Obama to advance the Governor’s own questionable agenda. Maybe Sorosky should have left it alone, or even better, maybe he should have made headway with the truly damaging points that were just made during direct examination. Originally, Sorosky tried to ask questions about what the FBI had asked. The witness nearly shouted “No” each time he was asked a question about something he didn’t recall. This should have been a clue to the quagmire Sorosky had wandered into because Balanoff was refusing to let Sorosky mischaracterize his memory, even if it was only off by a word or two. Zagel finally stepped in, telling Sorosky that instead of trying to paraphrase the FBI agent’s question, he should just ask the witness what he said.

Whenever Sorosky gets up to examine a witness I always inadvertently have an image of a stand-up comic getting up to play a room. The attorney has the tendency to make funny faces while speaking or waiting for answers, and he often turns to the defense table or sometimes the prosecution like he is waiting for a reaction to his one-liners, some validation of his act. Sometimes, he guiltily asks a question that he knows will be objected to and he’ll turn with a bent rubber-legged posture toward the government’s table, waiting for the prosecutor to stand and it is like he’s sounding off a straight-man in order to make his joke. And if this image works, if it holds up even just a little, then Sheldon Sorosky was dying today in Zagel’s courtroom. His performance was a rather pathetic song and dance that sometimes embarrassingly insulted the intelligence of the jurors; it was so transparent that the juror’s couldn’t help but notice that Blagojevich looked to be already out of cards.

I’ve written that context must be developed in order to give a backdrop to Blagojevich’s dilemma. He has to be portrayed as a man who was working hard for the state, playing hard ball politics, as well as engaging in political gamesmanship. And then Rod Blagojevich must easily fit into that backdrop. It can’t be like sloshing gallons of paint over a mistake to hide the blemish that won’t go away, but that’s what it looked like today. Whereas Adam Sr. has been able to subtly weave Blagojevich’s proactive policy for the state into the fibers of the prosecution’s allegations, Sorosky seemed to be bludgeoning the jury with a marathon to see how many times he could end every line with no increase in taxes, health care and hard working people. It didn’t work. Maybe it was the out of cards thing or maybe it was the apparent lack of cohesiveness of the defense team (for instance, in the several trials I have seen, it was the first time I saw the counsel poll every person at the defense table, including the contract lawyers and the defendant, before turning over a witness).

IV. The juror’s task: Anatomy of an argument (part  2)

There was a little more to the selling the seat situation. After Blagojevich met with Balanoff, where the union leader advocated for Valerie Jarrett to be appointed to the senate seat, and Blagojevich outlined some of the things he wanted in order to make that pick, some other phone calls followed. In one call, Blagojevich excitedly told Balanoff about his 501(c) (4) which would be funded by billionaires who could put in “$15 million overnight,” and where Balanoff clearly humors the governor who he thinks has floated off to sea. Balanoff just wanted to get a candidate picked who would be good for the workers he represents and he kind of thought that’s what Blagojevich wanted, but it became clear that he and the governor were on entirely different planets. The whole thing became even more clear when Blagojevich said words similar to “Valerie Jarrett could be our senator if it happens,” referring to his charitable foundation idea.

After it was clear that Jarrett was going to the White House and no longer wanted to be considered, Blagojevich went over the possibilities with Balanoff, running through the names of possible candidates. One was missing. Balanoff noticed that. It was Lisa Madigan. What happened to Lisa Madigan? Tom Balanoff said he felt that he’d been played.

The defense came roaring back, sort of. Sorosky hammered on Blagojevich’s talking points: Healthcare, employment, no taxes; and then he went to battle over crossing the precarious line where Sorosky said that Blagojevich never explicitly said he was offering a this for that transaction. Sorosky’s fallen into a trap because there are two big problems with this argument. First, he never really went after the one exchange where there appeared to be an explicit this for that offer (In my notes, on the first time I heard this, I circled the word “if” and scribbled QPQ next to it. I wonder what the jurors—most of them are taking notes—scribbled into their notepads.) The second problem may go a little beyond what the jurors will see but it still could be very important to the outcome of the trial.

I don’t want to get all lawyerly in the middle of these observations from a very hard bench in the courtroom, but I have a little experience with watching some trials that had some very similar issues. In legal gobbly-gook there is a difference between explicit and express and according to various supreme court rulings, the exchange has to be explicit (probably McCormick if anyone cares because I am way outside my field by now) but it doesn’t have to be express, meaning that if Blagojevich’s words and actions lead Tom Balanoff to believe that Blagojevich was offering to appoint a certain US Senator only if he gets a reciprocal action from the President of the United States, which Balanoff almost certainly did believe, then Sorosky can posture all he wants, he can yell at the witness that he never explicitly said the moon’s made out of green cheese, and it doesn’t matter. (The case citation is probably Evans if you’re keeping score at home but I’m still leaving all that to the lawyers. It is to prevent a defendant getting away with a crime because it was a “nod and a wink” exchange.) If the jury feels what Tom Balanoff feels, then the language of the law is clear and a guilty verdict can be returned, regardless of what was actually said by Blagojevich.

So look at it from all the vantage points and what do you think? Is the task of the jury easy or hard on this issue?

V. Zagelism’s

I’m pretty sure if I am ever party to or have occasion to observe an argument where an arbiter jumps in and counsels one side or the other on how to win the argument, I’ll say that person is being Zagelistic.

 Here are a list of today’s Zagelisms:

1. “When I start speaking, I want everyone else to stop. It is one of the little rules I have.”


2. “If you say something to this witness and get one word wrong, he will say I didn’t say that, and then we’ll have to spend a lot of time figuring out which word was wrong.” [Zagel was annoyed with both the lawyer and the witness.]


3. “It’s really inappropriate. Are you almost done?” [About Sorosky trying to hammer the witness with whether or not he was “explicit.”]


4. “If you don’t like his answer, go to another question.”


5. [Zagel called break and the jury was dismissed. Sorosky told him that he had one more question he would like to ask after the break, before handing over the witness.] “You got one more question? Ask it now in case it’s a bad question.” –as predicted, it was a bad question.

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