Report from Chicago

There are a couple of kids on the playground. There’s a dispute. Something about the rules. It’s a life or death thing to them. Their purpose and worth is tied up in the outcome. An older kid acts as a referee. He makes a ruling and one of the kids is happy, smiling. The other one sulks, says he can’t play the game this way, says it’s not fair. Finally the loser says, “I’m telling,” and he runs off to seek a higher authority. Dad comes out, weary, wanting to stay out of it. The insulted boy, in a rush, states his case. The other kid blurts out, “That’s just stupid.” Before a ruling is handed down by dad, the angry kids shouts, “Is not!” Dad shakes his head and walks away. The referee says, “You think I’m not good enough to decide things. You shouldn’t ought to get all interloculatory on me, go off running to Dad every time you want something. He’s right, it’s stupid. Shut up and play.”

This spring, in the first battle of the pre-trial skirmishes, the Blagojevich team etched a line in the dirt over the issue of time. His attorneys said they needed as much as five more months (but might settle for three) and the prosecution said a year and a half is long enough. The basis for the request—a pretext according to the prosecutors—was that the Supreme Court is yet to rule on several cases that might impact the charges that Blagojevich faces. This claim was wrapped in the Constitution because it is a fundamental right for a defendant to know what he may be charged with. But it isn’t as straight forward as that because although some charges could be dropped in accordance with an impending Supreme Court ruling, the evidence would remain the same. And although I will not pretend to be a constitutional lawyer—or any lawyer, armchair or otherwise, for that matter—the 6th amendment says that a defendant has the right to “…be informed of the nature and cause of the accusation…” which seems to suggest that the Blagojevich case satisfies this legal requirement since the evidence against him will not change regardless of what happens in the Supreme Court. Besides not knowing exactly what charges he will be facing, his attorneys have said that this—not knowing the charges—impedes their ability to write an opening argument, and because the Supreme Court decision could have several outcomes with regards to the honest services statute, his attorneys also say that this prevents them from having an understanding of what legal theories Blagojevich will ultimately be charged under. Neither argument has had much of an affect on Judge Zagel because both the opening argument and legal theories are concerned with how the evidence is interpreted and not necessarily with the nuts and bolts of the statutes that the evidence is connected to. And that’s the problem. It doesn’t matter what the Supreme Court does because the evidence against Blagojevich will remain the same. He will face a variety of charges—possibly less than are now in the indictment—as a result of that evidence.

 As the trial now looms in front of us, and is apparently on an un-derailable track, this lingering battle spawns some questions: 1) Does the Blagojevich defense really believe that the Supreme Court ruling—and possibly fewer charges—could significantly change the outcome of the trial if it is delayed until after the ruling? Conversely, is the prosecution afraid of the impact the Supreme Court ruling might have on the trial and feel that a win for their side is more likely with the defense not knowing all of the charges they will ultimately be facing, or do they simply think eighteen months is enough and they’re just trying to save the taxpayers money; 2) Is it really more of a pretext, an underpinning of a defense that is in a mode of frantic disarray, as they desperately try to make sense and craft plausible explanations out of hundreds of hours of taped evidence, millions of pages of documents and the stories of several cooperating witnesses? 3) It is unclear who is in charge of the defense, as Blagojevich’s media blitzes have gone against conventional legal wisdom, but does the defendant believe that a continuance would give him more time to take his case directly to the American people and create a wave of good-feeling that might trickle down to the jury; 4) Is the whole thing academic—a typical legal pre-trial exchange—and will it ultimately not make much of a difference either way?

The sequence of the last ditch flurry of motions and Judge Zagel’s denial has gone something like this:

The “I’m Telling” Motion
The original continuance motion was rather schizophrenic in that it cited both the constitutional issues associated with the Supreme Court as well as the logistical problems of processing “3.5 million pages of documents and 1.96 million emails.” The pleading went on to say that they later had to analyze 22,000 pages of FBI 302 [witness interview] notes, nearly 265 hours of recordings and said they needed to study the transcript of Tony Rezko’s trial because of its similarity to the current proceedings. The prosecution countered that the defense had plenty of time and the motion was denied.

Time passed and the kid on the playground got a little mad, got a little desperate as the trial date came rushing up. The defense bypassed a motion to reconsider to either Zagel or the Magistrate and instead went over the judge’s head to a higher authority, the appellate court. The timing of the appeal may have been calculated because in the sometimes slow as molasses appellate courts, a ruling could take time (a lawyer once told me that appellate courts work under the premise that, “We have a lifetime appointment, so if we make a decision before we die, it is timely”) which would work for the defense because even a negative ruling would delay the start of the trial. They also took the unusual and creative measure of asking the higher court to direct the District Court to give them a favorable ruling. This would take the jurisdiction out of the hands of Zagel, hence the nature of the “I’m telling” motion.

The “That’s stupid” motion
Citing case law, the prosecution filed a motion asking Zagel to declare Blagojevich’s motion to be a “frivolous effort to block the normal process of litigation.” And importantly, the motion said that jurisdiction should stay in Zagel’s court. We got a referee. He can handle it.

The “Is not!” motion
Blagojevich’s team quickly filed a motion asserting that contrary to the prosecution’s characterization of their motion, it was indeed a heartfelt plea to the appellate court, raising real and substantial issues, or ”Is not stupid.” To my lay eyes, just like the stubborn kid on a playground, it was a weak argument. They first cited a court case (that had previously been cited by the prosecution) where an appellate court said that calling a motion frivolous (or stupid) should be done with caution and when there are real issues involved, they should be heard by the appellate court. Those general legal comments did nothing to help Blagojevich’s case. And worse, they cited a recent case where the sentencing of a defendant was delayed in order to give the Supreme Court time to render their honest services decision. But the sentencing of a defendant who has already been tried and convicted of charges that might become moot with the Supreme Court’s ruling has little to do with dropping a few charges before or during the trial of Rod Blagojevich. But when anyone yells: “Is not,” desperation and frustration are usually already at play.

The “He’s right, it’s stupid” Order of the Court
Zagel wrote that if he has made a mistake and Blagojevich is convicted, then they can appeal, but for now, he sees the defense’s motions as the prosecutors do, that they are frivolous. He said that charges get dropped all of the time—before, during and after a trial—and it doesn’t necessarily impact how the evidence is used to address the remaining charges. And he said that since opening arguments are not the place to make legal points, but are instead, where the jury is told what evidence they will see, the notion that they will not be able to craft an adequate opening argument is also frivolous. [And then there was Zagel’s: “Dad returns do-over Order.” See the update in the right-hand column for information about that.]

21 days until trial
So the drumbeat continues. The textual battle will become verbal on June 3rd; the playground will become an oak paneled courtroom. Some of the answers above will be answered. Keep reading and we’ll check them off as they come.

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In early March, several years ago, during the fraud trial of HealthSouth founder Richard Scrushy, one of Scrushy’s CFOs was on the witness stand. Michael Martin was a shrewd banker with deep connections to the finance industry—some would say he was the real Master Mind of the fraud—and he was also a strong voice for the prosecution’s storyline, virtually unshakable under the withering attack of Scrushy’s lawyer, Jim Parkman. On his fifth day on the stand, after a long narrative about a group of executives called the “family” who would meet every month to change thousands of entries on the corporate books, after Martin was the only witness in the whole trial that said the word “fraud” was used within earshot of defendant Richard Scrushy, after all of this devastating testimony, Jim Parkman had one more question. It didn’t have anything to do with fraud. It didn’t have to do with lying to investors or signing off on spurious press releases. All that was gone. Parkman’s question only had to do with Mike Martin. He asked him if he used any drugs or any prescription medications. There was a pause. The answer was “Yes.” Lexapro. Mike Martin said he had been prescribed the medication to control his high blood pressure.

There was a hush in the courtroom and the jury squirmed uncomfortably. The next morning, before Parkman got going with his roundhouse punches at Martin’s story, he returned to the drug theme again. In his best down home southern accent, Parkman asked: “When did you get on Lexapro?” He used the words “get on” like he was asking a down and out addict how long he’d been on crack. But the former CFO didn’t go uptown to score his supply. It was from a doctor to control high blood pressure, and perhaps anxiety. It was not unlike the pharmaceutical boost being prescribed to many productive members of society every single day. Nothing special, right? His testimony would still be compelling even if he had high blood pressure, wouldn’t it?

A few years go by and the former governor of Illinois is about to stand trial, and in a couple of months, Stuart Levine will be in the witness chair. And Levine will have some baggage. Like Martin before him, he will have already pled guilty to crimes that he is yet to be sentenced for. The jury will be apprised of that situation and will be asked to factor in his cooperation when they consider his reliability and truthfulness as a witness (per his plea deal, he is facing over five years in prison, but this could be altered at a later stage by the judge). He has been accused or convicted of a variety of crimes, including tax fraud, bribery and election fraud. And like Martin before him, drugs might play a role in his appearance on the witness stand, but not if the judge agrees with the prosecution and insulates the courtroom against Levine’s past. But it’s not Lexapro this time; it’s not just a routine medical prescription to help with his circulation. His past is dotted with the recreational use of marijuana, LSD, cocaine and Quaaludes. And Ketamine, aka “Special K,” which although once having a wider pharmaceutical use for humans, is now mostly used as a horse tranquilizer. This drug could be particularly problematic for a witness in a courtroom because one of its effects is amnesia. Along with his confirmed drug problems, Levine had a very redact-worthy “social life,” which might be rumor-fodder for those who are inquisitive and have imaginations active enough to fill in the blanks. For a second whack at a conjured story, the attempt to extort Levine was also redacted but the thick black lines are rather transparent this time. To this end—Levine’s lifestyle and behavior excesses—the prosecution has asked the judge to limit questions and testimony about Levine’s drug use to only include areas where it might be relevant to the evidence and his role in the trial. Presumably the prosecution wants the court to find that that drug usage can not be used to impugn or impeach a drug addict’s character or truthfulness, but his drug use can be revealed only for the limited purpose of questioning the ability of the witness to recall certain facts or details of the case. With this backdrop and tightropes in place, Levine will be expected to regale the jury with high times on the state pension board and with the Teachers’ Retirement System. He is intertwined with the RICO allegations and should have a number of stories to tell. His name is mentioned over 175 times in the Santiago Proffer.

When Stuart Levine appeared as a witness in Tony Rezko’s trial, the government asked and was granted a motion to restrict the line of questioning that might be used with him, and his “social life” was also off limits.

It’s a different trial in a different city. So how will it play out? Chicago’s a tough Midwestern hub with a long tradition of questionable politics and complicated criminal enterprises, while Birmingham was sullied with a reputation as an oppressive intolerant place. But now, in the Bible Belt, that little civil rights problem appears to be gone as you walk the deserted streets where there are monuments to the struggle but little else. It’s all quiet now in a city more stratified than it ever was, with a mostly African-American urban core surrounded by mostly white suburbs. All swept away. Everything’s fine. That’s the way they do it in the south. So how did Mike Martin and his Lexapro play out in the trial of Richard Scrushy? About three months later, Scrushy was acquitted of all of his fifty-something counts. When the jury was interviewed by the press, and they were asked what they thought of the prosecution’s most compelling witness, they said all they could remember about Michael Martin was that he used drugs.

The Blagojevich prosecution team will get their limiting motion and the defense will try as best they can to make sure the jury knows something about Levine’s behavior and life if not the complete story of his lifestyle. But half a country away, will it matter? Whereas there is a natural order that exists both above and below the surface in the Deep South, there is a system of relativism that exists in the heartland. It is hard to know—with certainty—which will win out, but it is one of the many questions waiting to be answered this summer.

A drumbeat

Entering the last few weeks before trial (barring a continuance via the last ditch Hail Mary motions to win one) there is a drumbeat. Both the prosecution and the defense have been firing motions at the court in an attempt to shape the nature of the coming battlefield, but the drumbeat has been that the judge has been granting most of the prosecution’s motions while denying most of the defense’s.

The defense tried and failed to have a subpoena served on Barack Obama. The defense contends that Obama’s public statements contradict some assertions made by witnesses and Blagojevich says—contrary to Obama’s statements—there may have been some contact with the administration. But the motion was denied. This long shot ploy might have been just to prepare for some post-trial appeasable points of either Judge Zagel’s denial, or if the motion had not been denied, Obama citing executive privilege. These could be used to make a claim that Blagojevich was prevented from mounting a credible defense.

Zagel also granted prosecution motions that: a) Barred the defense from discussing in front of the jury problems they had with getting the prosecution to turn over relevant information; b) Prevented the defense from bringing previous rulings of the court into the courtroom. In particular, with regard to the admissibility of some of the tapes, the prosecution does not want the defense to suggest that portions which were previously ruled inadmissible—and will not be heard in the courtroom—contain the really good stuff, and would somehow exonerate their client; c) Kept the defense from mentioning any penalties faced by the defendants; d) Barred the defense from using the “good acts” of Blagojevich as a defense and they will be required to give the court notice of any material they plan to use that may be considered “good acts” of Blagojevich; e) Ordered the defense not to use any “evidence or argument” that refers to the death or suicide of former defendant Christopher Kelly; f) And Zagel barred any evidence concerning Blagojevich’s impeachment and removal from office.

The motion to prevent the prosecution from soliciting comments designed to evoke jury nullification (the subject of my last entry) was also granted.

In all contingencies presented by the prosecution, Zagel has given the defense the benefit of a doubt, writing that he doubts the defense plans to use the objectionable material referenced in the motion as a defense, but since he was invited to do so by the prosecution, he has put general orders in place that make it clear that the above arguments will be prevented from entering his courtroom. He has yet to rule on the motion regarding Stuart Levine, the above-referenced subject of this entry.

Just a few weeks to go and it all goes to Chicago. Stay tuned.

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While Rod Blagojevich holds a press conference where he practically got down on his knees and begged the Court for a gag order, the prosecution lobs a few grenades in his direction in the form of a motion. Both sides were equally in earnest and both sides were mired in some elements of rather outrageous comments.

On the Blagojevich side of the aisle, in a two minute tirade where the ex-Governor used the word “lie” five times, he made a chivalrous attempt to defend the honor of his wife by verbally spreading out his jacket over the government’s mud puddle that came sloshing out of the Santiago Proffer. He defended his wife as an honest, hard-working, tax-paying citizen. Of course his wife’s work ethics are not so much the question as the issue of whether or not Rod Blagojevich used the power of the Governor’s office to funnel work opportunities and money to her. The short angry press conference ended with an absurd challenge to US Attorney Fitzpatrick to show up in court and explain to the world why the government doesn’t want to play all of the tapes in the trial. Since Fitzpatrick is not likely to answer to this challenge, I’ll offer a possible answer in his stead: Because the US Attorney is neither charged with, nor interested in enlightening the world about anything—this is not Celebrity Apprentice—but he is instead focusing on a trial that will take place in an oak-paneled courtroom, in accordance with the mandates of the US Constitution.

However, Rod Blagojevich wasn’t the only one to have a bit of a hissy-fit although the prosecution’s version wasn’t verbal, it was instead by motion. Maybe the prosecution’s been reading me a little bit (especially the Can Blagojevich Win? entry) but more likely they’ve just been reading and watching and hearing too much of Blagojevich’s antics, that they felt it necessary to make some pre-emptive strikes in the courtroom. But some of their suggestions made by way of their pleading are problematic if not rather dangerous to our system of justice. Their motion is partially responsive to the nearly-out-of-control defendant at hand, and it is also responsive to a nearly boiling-over trend in political prosecutions. On the one hand, prosecutors have made attempts to use vague case laws in combination with a confused lay-jury to tilt these political prosecutions into the win column for their team, while the defense has sought to put Big Government and the methods involved in investigating these cases on trial, in order to tilt the courtroom to their advantage.

The prosecution’s motion is specifically designed to bar Blagojevich from using courtroom tactics meant to “elicit jury nullification.” Jury nullification is the often discussed and debated controversial courtroom phenomenon where the prosecution proves a case against a defendant, but the jury returns a not-guilty verdict because either they didn’t like the law the defendant was charged under, they didn’t like the prosecutors, they had issues with the methods used in investigating the case, or they liked the defendant and thought that even if he’s guilty, they’d rather set him free. The controversy is that there really is already a lot of each of these things in every jury trial because individual jurors bring their own likes, dislikes, feelings and prejudices to the deliberation room. Of course, when the jury is empanelled, the attorneys do their best to make sure they only seat juror’s they feel can be impartial, but it is impossible to completely weed out human nature. So in all cases, both sides are trying to get the jury to accept the sensibilities of their story-line, but there is a line—a sometimes rather thin line—that is crossed when either side tells the jury that they should not accept the standards of the law, or that there are mitigating circumstances that they should consider before finding a defendant guilty. The usual culprits—instigators—in jury nullification are the defense, but although it is not discussed as much, there are two sides of that thin line. The prosecutors are supposed to be obligated to represent the US government by fairly and effectively bringing the cases they are assigned into a courtroom. (All of the attorneys are considered to be officers of the court, and are bound to be truthful to the court.) Some political prosecutions have recently been on ethically thin ice, and some prosecutors have deliberately sought to push the boundaries to get a confused lay-jury to accept a gossamer thin theory that links a defendant to vague case law. As evidence of this trend, the Supreme Court currently has several cases before them that may tighten the definition of honest services fraud. Political prosecutions have also increasingly relied on RICO statutes which were originally enacted to be used against mobsters and organized crime. These charges rely on casting entire state governments as criminal enterprises lorded over by a kingpin, in this case Blagojevich. But the dynamics of corrupt political officials operating on certain levels of an administration is not always a perfect fit when overlaid onto the methods and goals of a criminal syndicate. Efforts to make this linear crime-boss theory fit into the more circular confines of a political administration give rise to the defense challenging the applicability of the law while the prosecution would rather the court and the jury to accept these crimes at face value simply because the government has said that they’re there.

In the Blagojevich case, the prosecution’s motion about statements to “elicit jury nullification” refers to five specific areas with variable amounts of sense and logic. I can only view the material with a decidedly and admittedly lay-perspective (perhaps maybe slightly skewed by sitting through long trials and hanging around lawyers a little too much) so I have no idea how the judge will rule, but this document will take a look at some of these things using the simple test of lay-logic and reasonableness. The areas the prosecution refers to are: The politics as usual argument, selective prosecution argument, the claim of a government conspiracy, the allegation that Blagojevich’s arrest was improper, the use of cooperating witnesses and the notion of not convicting him because of his family needs.

The document begins with a short preamble where the prosecutors go over some case law that says to deliberately tell the jury to nullify the law is illegal, and it is likewise illegal for the jury to nullify a verdict for extra-legal reasons. (Incidentally, it is worth noting as an aside, that in this pleading as in some of the others filed by the prosecution, the name Zagel has frequently come up in the citations, meaning they are decisions made by the judge in this instant case, as if to remind him of things that he has previously said.)

There is a real problem with their first assertion that Blagojevich can not make statements in court to suggest that what he was doing is “politics as usual”. Cutting this line of questioning off in the court would preclude the defense from exploring the context of the crime, including good faith decisions that were made by a politician which were perhaps converted into illegal acts by people working under him, or in particular, it would cut off a line of defense where multiple interpretations of a statement would be considered. If the prosecution says that a certain statement is an order for someone to go commit a crime, the defense could say that it was merely the statement of a politician playing hardball politics. The motion specifically refers to a citation where a witness was asked questions about whether an act was “misleading” or “ethical” or “wrong,” and particularly in a RICO case, where the entire state government will be cast as a criminal enterprise, this avenue should be open for exploration. And the wider reading of the motion—with an even bigger problem—is that it seems to suggest that Blagojevich can not argue a “politics as usual” defense because politics as usual is criminal, which is a specious argument because it says that every politician—anyone who has received a donation, anyone who has received anything connected with an official act—is criminal, so because they’re all criminals, this line of defense can not be used. This section also says that the jury should not be told about similar individuals who have committed similar acts. This point makes a bit more sense and will certainly be kept out of the courtroom because even if it has an overall bearing on the case, these things will have little bearing on the evidence at hand.

The selective prosecution argument will probably be barred from the courtroom, because even if there is some truth to it, the argument has no bearing on the evidence or the crimes being tried. This is a matter that could be raised on appeal or through other avenues, but not in front of the jury.

The part against an “outrageous government conduct” section was introduced by a Zagel quote: “increasing tendency in criminal cases to try some person other than the defendant and some issues other than his guilt.” The problem with these points of the government’s motion is that the US Government, acting in accordance with the Constitution, can never have carte blanche to track, pursue, and ensnare citizens to be guests at the defendant table of courtrooms. To be fair, some of these are issues that would naturally be taken up outside the courtroom, in other venues, but the methods and the methodologies of the investigators should always be fair game for the defense in the same way that the prosecution would seek to explore the methods and methodologies of the alleged criminal enterprise. And especially in a political trial, the prosecution should not be allowed to criminalize legal acts simply because they are armed with an indictment, and without their theories about these crimes being thoroughly explored. The prosecution probably will (if the judge doesn’t decide the court will handle it in real time) be able to exclude statements or inquires designed to explore possibilities of government conspiracies or improprieties in the arrest of Blagojevich. But there is a real problem when it comes to cooperating witnesses.

The use of cooperating witnesses has long been a valuable tool for both the investigation and prosecution of crimes, and it has also been kind of a bugaboo, an area that skirts the edge of vigilante justice where the good guys and bad guys nearly collide. The problem is of course that just because cooperating witnesses may have committed crimes, it does not mean that what they say isn’t truthful, or what they saw didn’t happen; but on the other hand, they may have good reasons to stretch the truth. The prosecution, in this case, admits that the defense will of course have the right to discuss plea deals during cross examination, but it would be a travesty in any courtroom if the nature of a cooperating witness’s cooperation could not be fully explored. This tool has been used honorably in many trials, but it is an incontrovertible fact that it has also been abused: Witnesses have been coached, they’ve been interviewed repeatedly until they told the story the prosecution wanted to hear, they’re stories have changed between FBI interviews and Grand Jury testimony and witness box testimony and these shifting stories along with the nature of their cooperation should be fully explored in order for any trial to safely arrive at the truth of the matter. This gaping hole the motion falls into comes about because while the prosecutors admit that the defense can discuss the cooperation of a witness during cross-examination and can explore the nature of their cooperation, they build on this by further saying that the defense should not be able to argue for an acquittal based on the cooperation or immunization of a witnesses. But what happens if it is clear—during an examination of the cooperating witness—that there were improprieties in the way that witness was used or was processed to testify. Would the defense then be precluded from saying unequivocally that this witness should not be believed, and that the defendant should be acquitted of offenses based on that witness’s testimony? This would be a problem whether or not you’re a Blagojevich supporter or Blagojevich hang-‘em-high-hater, and it should be a disappointment if the judge decides to use a judicial machete to cut a swath into what goes on in his courtroom. On this point, Judge Zagel has made it clear that while the prosecution and defense trade barbs, it will ultimately be his decisions that determine what goes on in his courtroom.

The prosecution wraps much of their motion around—supported and not-so-well supported notions of controlling the flow of what is going to enter his courtroom. In the trials that I have witnessed, the war is often won by preparing the battlefront and controlling the nature of the future battleground. In the end, as things are heating up going into the final six-week prelude to the trial, we have a sometimes scattered defense with a nearly out-of-control free-wheeling client going up against a prosecution team that appears to be rattled enough by his antics that they need to go beyond the voluminous evidence they have in their pocket to reign in a mad strategy that might have the government’s attorneys being both simultaneously confident and afraid.

Stay tuned: This could get ugly, but as ugliness goes, it could be a fascinating mess..

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We’re well under two months before trial, continuances have been denied, hopeful push-and-pull motions have been filed, and the pre-trial battles are heating up. The government has so far been plodding and methodical while Blagojevich’s defense has been in a circle-the-wagons frantic almost schizophrenic mode. This split personality strategy was in full evidence today, when the Blagojevich team simultaneously welcomed and repudiated the long sought-after release of the Santiago Proffer. They hungrily wanted the Proffer to be released so they could have access to the information it contained while at the same time they feared the information within the ninety-one page document. Keep reading for more on these latest developments, including the release of the Santiago Proffer later.

The Blagojevich PR machine revisited

Rod Blagojevich is not the first indicted person facing serious criminal charges to loudly proclaim his innocence nor is he the first politician to claim that he was caught up in the machinations of overly zealous prosecutors. His rhetoric is nothing new. I once went out campaigning with an indicted politician who was stumping for primary votes on the weekend while undergoing a multi-count corruption trial during the week. In this respect, Blagojevich is only acting his part in the unscripted ritual of the media-infused world of public accusations that will end in the more tedious languid environment of oak-paneled courtrooms.

It is not the steady hum of his PR machine that is new, nor is it his “I didn’t do it” mantra, but it is the sheer excess that makes Blagojevich’s pretrial stategy unique. Against conventional wisdom, but perhaps not vigorously discouraged by his defense team, Blagojevich’s taking-his-fight-to-the-people goes way beyond trying to influence or manipulate a local jury pool. Any observer of the goings on in Chicago would be hard-pressed to come up with a model that accurately characterizes what this particular indicted politician is doing. So why would the defense vehemently fight for Rod Blagojevich’s right to be on Celebrity Apprentice when conventional wisdom would say they would welcome their client shutting his mouth, no matter who is doing the shutting. At the same time, the prosecution has worried that his over-the-top PR campaign would indeed taint the jury. And they have a right to worry. If Blagojevich successfully converts himself into a character, a gutsy man of the people going up against the power and resources of Big Government, it could resonate with a fed up public that has sometimes shown its willingness to hitch its frustration and anger to populist characters. So it might be madness, but perhaps in the case of Rod Blagojevich, madness is a strategy in itself.

On the morning after the third episode of Celebrity Apprentice aired, the headline was that Blagojevich is such a buffoon that he couldn’t even handle the basics of operating a computer. Daryl Strawberry, another member of his ‘RockSolid’ team on the show, wondered aloud for the cameras how Blagojevich became a successful politician. He said, “You don’t just fall up there” to be governor. So in the morning, Blagojevich’s computer skills—along with an unfortunate sexual reference—were fodder for bloggers, commentators, comedians and news-of-the-weird fans. But while we were busy guffawing at the fallen governor, is it possible that we were laughing at a shrewd not-so-funny strategy. In a couple of months, Blagojevich’s trial will commence, where he will be facing a twenty-four count indictment including two RICO counts. To prove the RICO portion, the government is going to have to prove that Rod Blagojevich was the master mind of a criminal enterprise. Now put yourself on the jury for a moment, overlay Blagojevich fumbling to make sense out of one of these new-fangled computer things, and ask yourself if—based on this one piece of information being fed to us, the people of the jury, in the veritable information-vacuum of a courtroom—do you really think that Blagojevich, that bumbling guy who couldn’t make sense out of a computer on a silly reality show, could be the master mind of anything? Could these on-camera antics actually have been the result of a strategy in the making.

To digress for a moment and to be completely fair, one problem that charismatic people—those who have occupied positions of power or leadership—often have is that they are unwilling to give up on their well-crafted image, even if it means saving their livelihood and liberty. Corporate CEOs often have to wrestle with their attorneys over employing the “know-nothing” defense because even in a courtroom, they vainly cling to their well-crafted image, and will do (almost) anything to prevent the public from seeing them as something other than the product of a PR machine. But some reports from Chicago indicate that Blagojevich may indeed try anything, be anything, become anything, if it means getting to the other side of this thing.

In another snippet gleaned from Blagojevich’s appearances on Celebrity Apprentice, he is shown on the phone, having a conversation with a nameless party, presumably back in Chicago. On that call, he is swearing a lot—as he is on several other occasions in the three shows he was on—and he was saying something about getting someone to “corroborate” something. That’s the word he used in the midst of his profanity laced conversation. Now we’re back on the jury, watching the two legal teams trying to spin the story of what happened during the Blagojevich administration. The prosecution might make the case that his swearing was an intimidation tactic that went beyond hard ball politics. But the defense has only to play this tape to demonstrate that swearing was standard operating procedure for Blagojevich, and the language he used on the tape was nothing out of the ordinary. That’s going to be the mantra of the trial, that Blagojevich was conducting business in the rough and tumble world of politics, and that he never did anything that—within proper context—had him intentionally committing crimes. Some words, like for instance, the word “corroborate” could come up on the tapes as well, and the defense could again point to him using the word in what appears to be a casual exchange. Words like this, within the ever-widened context of the playing field—from his radio show, his many personal appearances, his role on Celebrity Apprentice—might take on a life of their own, and his attorneys may use them to pick apart the tapes. Will it be enough to explain away the considerable evidence arrayed against him? It’s not open-and-shut, but it could. If the motivations behind the cooperating witnesses are successfully explored and exploited, and if context undermines the contributions of the unindicted co-conspirators, it could come down to the tapes. And Blagojevich has been plastering the world with a veneer of context that could end up leveling the playing field.

One more thing from the show: Blagojevich’s strange sexual reference. When Blagojevich’s team quickly picked a team leader, and the Governor thought the decision was done too hastily, without deliberation, he said that it was like “premature ejaculation,” and then he went on a rambling, mumbled diatribe about when he was governor, and how they used to negotiate and plan to arrive at a more collective decision. This might have just been an unfortunate off-the-cuff reference that made good copy for a reality show, but it also could have been a wry reference to a a future defense strategy. It is possible that Blagojevich’s defense team will attempt to portray the government as so eager to get Blagojevich that they fired off all their guns before he actually committed any crimes, and they’ll further say that if they…um…relaxed, and took it more slowly, it would have become clear that Blagojevich was not running a corrupt administration. So like an over-eager teenager, according to a Blagojevich spin, the government prematurely ejaculated, therefore revealing their over-zealous intentions.

The Santiago Proffer

Now there’s the business of the government’s Santiago Proffer which has become a bit of a lightening rod for a confluence of pre-trial issues. On the surface, in its legal context, the Santiago Proffer is to show the court how the various actions of the defendant and his co-conspirators led to a crime or crimes being committed. These proffers are usually given in conspiracy cases, and are used to lay out the reasons why the government thinks that certain criminal statutes have been violated. But more specifically, the Santiago Proffer gives a preview of what statements, made by co-conspirators, will be offered as evidence during the trial. In the dry legal sense, this is important, because unindicted co-conspirators—people who played some role in the alleged criminal enterprise but did not necessarily break laws that would cause them to be arrested and tried—trigger a different legal standard when it comes to statements that would otherwise be considered hearsay. If the Court accepts the Santiago Proffer, then these hearsay statements can be admissible without further cross-examination. In this case, Blagojevich’s defense begged the court to have the Santiago Proffer released a month ago, but they now want to redact a portion of it because it didn’t want the information to taint the jury. The prosecutors did not want to release the Proffer a month ago—they said they were still developing the case—but now want it disclosed in its entirety because they feel it is giving the public actual evidence to compete with the version of evidence being spewed out of the Blagojevich PR machine.

Before continuing with a brief analysis of the Santiago Proffer being offered in the case of Blagojevich v. USA, I’ll pause to point out that those who have read my previous work know that it is never my purpose to provide armchair legal analysis. There are plenty of lawyer sites stocked with legal-eagles for that or legal consultants on the network news. But it is instead my intention to discuss appearances, nuances and what makes sense to the rest of us. And to give commentary that gets inside the matter at hand in a way that neither competes with the lawyer commentators or with the media, and will provide a certain independent insight into the evolving story.

So what does the document reveal? From the vantage point of the get-the-SOB-and-hang’m-from-the-highest-tree crowd, the Santiago Proffer might be considered to be rather underwhelming, for several reasons. Blagojevich still may have a rather uphill battle to accomplish his quixotic mission to get out from under the criminal charges he faces if not to outright clear his name, but there are flimsy pieces of the government case that might give his team some reasons to hope.

Besides the selling of Obama’s vacant Senate seat and trying to get Chicago Tribune editorial staffers fired, there are three broad areas that the proffer and the indictment cover: a) Kickback schemes; b) Extortion schemes and c) Schemes involving Blagojevich’s wife.

The various kickback schemes might prove to be problematic for the prosecution because they were mostly executed and carried out by Kelly and Rezko, with help from Levine and Monk. These cooperating witnesses (with the exception of Kelly of course) will say that they did these things under the behest and approval of Blagojevich, and that the money they were able to get via kickbacks was to benefit all of them. But even though these activities would be technically illegal and well within the guidelines of federal statutes, an astute defense might successfully argue that these men were operating more on their own then under the direction of Blagojevich. The lay people of the jury may have all experienced having people who were supposed to be under their control—whether children or friends or employees—who were supposed to do one thing, but went off on their own to do something more in line with their own personal agenda. Most of the phone-tap tapes, concerning these kickbacks, were between the various underling conspirators and did not include Blagojevich. A carefully concocted defense strategy that portrays these men as criminals who are now cooperating and fingering the boss to save themselves, could possibly work; and if this storyline is introduced early in the trial, it could be used to muddle the rest of the prosecution’s case. In a long case, whichever side loses the jury early, may never get them back.

On the extortion attempts, it appears that the government has a little more evidence and more calls to bolster what they have, but there is one big problem. In most of the cases, the feds moved in before the scheme actually came to fruition. (Remember Blagojevich’s strange premature ejaculation reference? It comes back again and again.) Technically, the intent to commit the alleged crimes could still result in a conviction, but a jury might not see it that way. And  if the defense is able to successfully give the jury multiple possible outcomes, they might be able to craft a wedge of reasonable doubt. In at least one of the schemes, the Governor’s staff refused to carry out Blagojevich’s orders to consumate an extortion plot altough Blagojevich thought that they had. Again this is technically a crime that could result in a conviction, but a jury might not be so willing to let Big Government convict someone on what might have happened or what someone planned to do but didn’t actually do. Is it possible that any of the juror’s who were down on their luck or having some hard times thought about doing something illegal to fix a problem, but didn’t actually do it. That’s the thought the defense needs to plant in the juror’s minds and they might have a shot.

The funneling of money to Blagojevich’s wife might be the most problematic charges for Blagojevich but these are hardly the worst charges he faces. This one is problematic because there appears to be some redundancy in witnesses. Remember corroboration? Some of these schemes come with multiple statements by different people who all say that something fishy was going on. But still, even here, there are a couple of problems for the prosecution. In one case, Blagojevich threatened to cut off certain companies which did not help his wife,  so they no longer would receive state business. But his staff refused to actually carry out these threats and the companies continued doing business with the state. With the absence of any evidence of a threat being carried out, the defense could dismiss this as fit-of-passion outbursts. There is another matter of $40,000 Patti Blagojevich was supposed to have been paid for work she didn’t actually perform, which would be one of the lesser offenses on the docket. And since it appears that Blagojevich tried to have her actually do work for the money, even if she was apparently unqualified, it could be explained as more of an ethical lapse and a bad hire than as a criminal matter.

And finally we come to the sexier charges, the ones the media likes so much, the mess that has Blagojevich trying to get Tribune staffers fired and the situation where he tried to sell Obama’s vacant Senate seat. The two primary problems with the government’s case pops up in both of these allegations. Although Blagojevich was alleged to have made threats against the Tribune—and there are some tapes that might be used here—no threats were ever carried out or were even conveyed to the Tribune. His chief-of-staff Harris told Blagojevich that he had delivered the message but he never actually did, but instead relied on his knowledge of impending Tribune layoffs to give Blagojevich the impression that the threats were not only delivered but that they produced results. In the selling of the Senate seat, there appears to be a lot of maneuvering to sell the Senate seat or to get something of value from the Obama administration, but the feds moved in before any deals or transactions were actually made. This could be a problem. Some reports say that Blagojevich’s furtive activities in the wake of Obama’s election showed an increasing desperate Governor who would do anything to improve his financial situation. But the problem is that he might have been somewhat desperate, he might have been somewhat frantic—lots of politicians are when their party wins back high office—but being desperate or frantic or even dreaming of cashing in on the coattails of an administration change is not illegal by itself.

None of this tour of the government’s case or it’s Santiago Proffer is meant to explain away the many transgressions and the fast-and-loose administration of Governor Blagojevich, but only to point out that with a well-crafted defense, there might be some wiggle room for reasonable doubt.

But these are just words on a website. The real action and the real truth and what will actually happen in this trial will be revealed by the time the summer of 2010 is winding down. Until then, these  are just words. The media spews out more words and Blagojevich throws around even more. So with that in mind, let’s give Judge Zagel the last word for now. He wrote:

 Disclosure of written material a month and a half before the beginning of trial does not come close to presenting a significant threat that a fair jury cannot be found. The experience of the courts in cases which attract significant news coverage has shown that pretrial news reporting is an overstated menace to fair jury trials.

And just in case the media (or myself for that matter) is inclined to put much stock in the words that are printed, Zagel also said:

Most people do not retain detailed knowledge of what they read in newspapers or what they hear and see in electronic media. Part of this stems from the sheer volume of media today. Part of it stems from the fact that what is reported seldom has a direct bearing on the lives of those who hear it…The events which are the subject of this case are not those which make a lasting impression on the mind of readers. The words in papers and magazines and the words read by an anchor on radio or television will not be retained in significant detail by members of the public.

 Oh well. No one is paying attention or will remember what they read here or elsewhere.

Anyway, if you are interested, I’ll be here until this thing ends.

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While Blagojevich makes his first appearance on Celebrity Apprentice, and careens along seemingly oblivious to sound legal advice, the battle outside the spotlights, being waged by guys with briefcases and motions, is all about time, specifically the timing of his trial. And on this front, his attorneys are making some pretty good arguments in front of a judge who already seems annoyed by their tactics. Just three months before the trial is scheduled to commence, the issue before the court is should the trial begin on June 3rd or should it be delayed as far as November, which would be almost two years since original indictment was handed down.

The defense argues that the prosecution has been dragging out the discovery process, and there is just too much information to be processed and assimilated ahead of a complex trial. And they also say that the Supreme Court is poised to strike down some of the laws that Blagojevich will be charged under. The first part of the argument—that there are too many documents to process—is standard fare, and there is a good chance the judge will conclude that even with the shifting nature of the defense team, the defendant has had two years to prepare for the case, that the prosecution is fulfilling its discovery obligations and that they do not have an absolute right to receive so much information that the prosecution’s tactical strategy is absolutely clear. However, the defense has an ironclad Constitutional right to understand and be apprised of exactly what it is he is being charged with.

This second point is the real issue and it is a formidable problem. This is when the alchemy of the courtroom becomes a little like a mad scientist in a lab or perhaps as complex as Einstein’s formulas, which had to take many things in consideration to come up with a workable theory of the Universe. And just as Einstein showed how the bending of light could alter perception, in courthouses, it is time that is bent. So here’s the problem: The defendant has a right—guaranteed by the Constitution—to a speedy trial; the prosecution is duty-bound to make sure the trial is expedient and they are also tasked with saving taxpayers money by making sure federal court time is not wasted because the meter is always running; the defendant also has a right—established by the Supreme Court—to be protected from adverse publicity; and as referenced above, the defendant has the right to know what he is being charged with. And at times, all of these things collide.

The issue with knowing the charges comes out of pending Supreme Court cases—which will be handled in a different dimension of time entirely, where the languid Supreme Court Time is in play—and where the outcome of these cases may strike down some of the laws that Blagojevich is being charged under. Specifically, the Court is considering flaws in USC 18 section 1346, which relates to honest services fraud. The prosecution argues that this won’t really matter because there will still be more charges—there will be as many as twelve counts—that would be unaffected by removing the charges that would be struck down by the Supreme Court. Although some of the predicate offenses would be dropped, the RICO charges would also be left in tact. But there is still a two-fold problem. First, the defense argues that developing a strategy and writing an opening argument would be nearly impossible if they do not know exactly what charges they will have to defend against. And secondly, if the Supreme Court strikes down some applications of the code, but leaves it alone as it is applied in certain circumstances, this would blindside Blagojevich because the defense would not have been prepared for this shift in the law. To this end, Blagojevich argues that the DOJ is arguing three different honest services fraud cases in front of the Supreme Court using three different theories. They further argue that these three approaches is a result of the government trying to give the Supreme Court several different ways that they might save the honest services fraud statute. So from their perspective, from the vantage point of someone who is trying to defend Rod Blagojevich, there are at least five different scenarios that could have an affect on the charges in the indictment. They could a) Remain in tact—with the Supreme Court taking no action; b) They could be wiped out, causing them to fall out of Blagojevich’s indictment; c, d & e; They could be modified in accordance with the three approaches being put forward by the DOJ. So if the case in front of the Supreme Court is still pending or is resolved very close to the trial date, this would definitely harm the defense’s case and leave a conviction vulnerable to an appeal.

The government is so far vehemently arguing against granting a continuance in the trial, although in a footnote to their latest filing they appear to acknowledge this dilemma, writing:

If the Court is inclined to grant a continuance of the trial date for resolution of the Section 1346 charges (or any other reason), the defendant’s requested five month continuance should be rejected. Rather, at most, a two month continuance to early August would be appropriate. The two months would provide more than sufficient time for the Supreme Court to rule on the Section 1346 charges, which should occur no later than the end of June 2010, and then an additional month for trial preparation in light of the Supreme Court’s ruling.

Beyond this footnote, the government’s motivation would be to save the taxpayers money, and they write that there is a heightened public interest in the trial, which seems to suggest that they want to appease the public’s desire for swift justice in this public corruption case. But the real problem is why would the government push forward when there is obviously an appealable issue at stake, where not that many dots would need to be connected to see how an open-and-shut case might be overturned. And it would seem that this would lead to both a greater waste of taxpayer money and a heightened sense of public disgust, ruining the chances to satisfy either goal. I’ve been told by people close to the DOJ that for the most part, the US Attorneys are not all that concerned with Constitutional issues. They take the case in front of them and they pull out all of the stops to win. This strategy often leads to having the most expeditiously handled convictions and it helps them achieve other publicly digestible performance-metrics, but it will occasionally lead to a range of problems, from a miscarriage of justice to a case that is overturned on appeal. (I should also point out that I’ve been told by some attorneys with a good vantage point of the situation that US Attorney and lead prosecutor Patrick Fitzgerald is an above-the-board, by-the-book kind of guy and that he would not intentionally stray too far from an honest pursuit of the truth.)

Both sides may also have an eye on the shifting fortunes of public opinion as Blagojevich hopes to build momentum and convince the populace that he was a committed public servant who’s only crime was ruffling too many feathers while he took care of his constituents; and the prosecution is mindful that public pressure expects the government to deal with a corrupt politician. But although public opinion may figure in—at least marginally—in both side’s strategy, the real issues outlined above are guiding the battle over time. However, the prosecution will want to cut off Blagojevich because the heads-will-roll media is still effectively on the sidelines as both sides are always mindful of the twelve people who will be plucked from the streets of Chicago to sit in the juror’s box.

Time will only tell how the Battle of Time works out in the case of the United States v Rod Blagojevich.

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I have sat in a courtroom as a trial convened where the public and press was convinced that it was an open-and-shut slam dunk of a case, and that we were gathered in the courtroom to watch the defendant get what’s coming to him. And even now, five years after that defendant was acquitted, people are still convinced of his guilt and still believe that justice was not adequately served in the federal courtroom, in Alabama. So now—barring a continuance—we are just three months away from the trial of Rod Blagojevich, and the people and the media are convinced it is an open-and-shut slam dunk of a case. But is it? Although it is unlikely that Blagojevich can completely scrub his name from the ledger of corrupt politicians—at least not in terms of public perception—can he still win a legal victory? If he can’t convince the press and fed-up population of his innocence, can he convince the twelve people who eventually will spend their summer sitting in the jury box?

In the early going skirmishes, as pointed out in the previous post, things are not going well for the Blagojevich team. And as they press forward with the play-all-the-tapes ploy (now asking for an oral argument before Judge Zagel) they are so far leaving other more accessible tools on the table. But the biggest problem the team faces is not in the courtroom at all, it is not in the submitting of motions or haggling over the rules of evidence or getting a tip-off of the prosecution’s strategy. The biggest problem is with the guy whose name is on the indictment, Mr. Blagojevich himself. Not only is the defense team handicapped by the judge strictly capping the attorney’s financial arrangements with the defendant, but they also have to contend with a guy who truly is evolving into a client from hell.

So how can Blagojevich win? What could their defense be? My legal consultants have told me that the  only real shot they have is for the defense to convince the jury that Blagojevich was operating within the rough and tumble world of politics, and that he had no intent to commit a crime. They will need to show that within the context of the political arena, Blagojevich was just playing hard-ball politics, and was not making his moves solely for personal gain. But there is a big problem to this approach, maybe two of them. The general public is already primed and inclined to believe that politicians, by nature, are crooked and that politics in general is a shady business at best. So whenever a politician gets hauled into court—no matter how bogus the charges might be or how thin the evidence—the public, even trying to be as impartial as it can, already has a general assumption of guilt. The second problem Blagojevich might have comes out of the nature of the indictment. The selling of the Senate seat and strong-arming of the Chicago Tribune might be easily subject to this hard-ball politics defense (for instance that Obama’s seat was really a “valuable thing” in a political sense—which it was—with the story being spun that this didn’t necessarily mean a financial or personal gain) but the parts of the case that deal with him lining up positions of money and influence that would kick in after he left office will be much harder to explain from a political perspective. The RICO portion of the indictment can also be problematic for the prosecution because this configuration means that according to the government the entire Blagojevich administration—the entire Illinois government—was run as a criminal enterprise. By pointing out the various pieces of the administration that were operating for the good of the constituents or was functioning well during the Blagojevich administration, the defense could possibly undermine this piece of the indictment.

So how does the defense work the angle that Blagojevich was operating within the political arena, and without the intention of committing a crime? Their only shot will be to show that the government, including the FBI and US Attorneys are partisans on the political battlefield, and to somehow show that the FBI willingly or unwittingly received information from Blagojevich’s opponents which they used and perhaps distorted to bring evidence in front of the jury. They will also need to set up a dual parallel prong that works the public angle. I spoke with Charles Russell, who is a PR operative that has worked on managing negative publicity associated with several high profile cases, and Mr. Russell said that the key for the defense will be to incorporate the social and political realities of Chicago into their presentation, and if Blagojevich’s legal teams tries to simply out-lawyer the prosecutors in the courtroom, they will surely lose. This area of pre-trial PR gets into the nuts-and-bolts and sometimes unseemly process of jury selection, but if his lawyers are able to test certain themes to see what resonates well with the public, and then they carefully select the jury in accordance with these themes, then they might have a chance.  He also pointed out that press coverage, in these types of high profile trials, is important, but it is not as important as some media-types might have us believe. Jurors are not often big consumers of news, especially of the print media. Because of this factor, there can sometimes be a gulf between what the media presents as an open-an-shut case and the actual perception of the people on the street, the people who may eventually wind up on the jury. So there might be a glimmer of hope here, but there’s a catch, and it’s a big one that is growing bigger with ever passing week and month. In order for this to work, Blagojevich would have to testify.

Now as if there wasn’t enough evidence from cooperating witnesses and a mountain of tapes arrayed against them, they really have a problem and the client from hell comes into focus. Blagojevich has been talking to everyone and anyone who will listen. He’s been on talk shows, radio shows, has a website, is on Facebook and will soon be in the reality show Celebrity Apprentice. He is making it easy for the prosecutors because all they will have to do is prepare snippets of tape from his many TV and radio appearances, and then look for anything that is inconsistent. One strategy for the prosecution, I’m told, would be to have a single member of their team tasked with handling the cross-examination of Blagojevich, and that person will be armed and versed in the aforementioned tapes. The prosecutor will then ask him many questions about the various things he has said, even about things where he might have misspoke. Whenever there is a contradiction and he denies saying something, then the snippet will be played to the court, and he’ll be cast as a liar. This will be unrecoverable. It will sink him. All they need is a single mistake—a few mistakes would be even better but they only need one—and they can accurately say that he can’t keep his story straight. The more he talks during this pre-trial phase, the more opportunities he is handing the government prosecutors. The prospects mushroom when all of the verbiage is crosschecked against statements made by cooperating witnesses, the defendant talking on the 500+ hours of tape, and any other extant statements he might have made during his time as an elected official of the state of Illinois.

So as it stands today, three months before trial, there may be a one-shot opportunity for  Blagojevich to mount a defense, but he has been actively torpedoing his own chances. If his own defense can rein him in, his legal team may have at least a shot at mounting a credible defense, but his chances may be growing dim as we speak. So let’s settle in now and enjoy Celebrity Apprentice, debuting on NBC, March 14^th. We can be pretty sure the DOJ will.

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Blagojevich’s legal team has experienced some tough-going in preliminary pre-trial skirmishes. In a situation that already appears to be an uphill battle for Blagojevich—an open-and-shut case—with thousands of documents of evidence, with at least two close Blagojevich associates trading their spot at the defendant’s table for a plea deal and cooperating testimony, and with a public well-primed by sensational media stories, a local press which has become part of the story and therefore part of the prosecution’s case and with titillating sound-bites gleaned from hours of wiretaps, the best friend and ally the Blagojevich team could have is the trial judge. And the best way to chip away at the seemingly overwhelming odds and insert a tiny wedge into this open-and-shut case is to successfully wage war in the pre-trial trenches fought by guys in suits, carrying motions.

When the center of the trial is a charismatic figure and a bit of an attention-hound—some might toss the narcissistic word around—the task of cobbling together a cohesive defense is doubly complex. The question that will be asked is: How much does the personality of the defendant spill over and dominate the defense’s strategy. These familiar questions were often asked in Birmingham, during the trial of Richard Scrushy, and they were especially pointed when the prevailing view was that Scrushy would be employing the “know-nothing” defense, because how does a flamboyant charismatic figure allow himself to be portrayed as a dupe, even if his livelihood and freedom are at stake. Scrushy stayed on the sidelines in that one—often held back by almost equally charismatic lawyers—and his team didn’t fully employ the know-nothing defense because they were aided by an inept prosecution. But in the Blagojevich situation, there is the added factor that the defendant is himself an attorney who may be too tempted to interject himself in his own defense. His inability to be a client might have already shown up in the merry-go-round comings and goings of his legal team that seems to be still in flux (although he is somewhat handicapped, with respect to his legal personnel, due to financial restrictions on his imposed by the court). And there may already be evidence of this disarray in the motions themselves.

One such motion that fell flat in Judge Zagel’s courtroom was Blagojevich’s demand to have the prosecutor speed up handing over the details of its case to the defense. They asked for expedited Brady material and Santiago proffer. These legal references refer to exculpatory information that the prosecution may have and the prosecution’s theory of how a conspiracy was put together, respectively. The prosecution is obligated to give both of these things to defense, but they are usually to be given fairly close to the trial date, after the prosecution has had sufficient time to prepare their theories and to fully understand what evidence may be exculpatory. The defense also does not have an absolute right to every bit of evidence that might be favorable to the defendant. Judge Zagel saw the request as a thinly disguised early request for a roadmap to the prosecution’s strategy. And he summarily denied it. But imbedded in his denial were also two rebukes of the defense team. He wrote that “…two statements in regards to certain portions of the Defendant’s reply ought not to have been offered in their present form.” One refers to a rather flippant direct quote that was included in Blagojevich’s Reply that was not actually said and is therefore inappropriate by the exacting language of a legal filing, and the other misstep refers to an argument that doesn’t make logical sense. Both of these rebukes demonstrate the possibility of too many fingerprints on the motion, possibly from defendant himself.

Blagojevich has followed up this unsuccessful effort to make some headway in the pretrial skirmishes with a motion to request that all of the government’s wiretap tapes be played at the trial. This motion is also problematic in form because it spends about six paragraphs explaining to the judge that Blagojevich is an attorney, and as such, he knows the law and what avenues are available to him as a defendant and as an attorney. But in front of a judge that already appears to be somewhat annoyed with the Defense’s efforts, it appears that his team is pointing out points of law to a judge who would surely know the law and the ramifications of Blagojevich’s request.

Why would Blagojevich request that all of the tapes—of which sound bites have already been heard extensively through the media, in transcript form—be played in their entirety and not just the clips that the prosecution wants? Several things come to mind: 1) Playing all of the tapes including the mundane minutiae of Blagojevich’s day-to-day life, including conversations with his children or snippets where he might earnestly be working to solve problems for his constituents, might have the cumulative effect of portraying him as a nice guy, and might minimize the damaging parts as a heat-of-the-battle kind of thing; 2) In playing tapes in front of a jury, from the Defense point of view, context is everything, and playing the entire stack of tapes would give the Defense more opportunities to spin the context in favorable ways for Blagojevich; 3) The tapes, which from reports are quite voluminous, could have the tendency to fuzz-out the jury so that they have a hard time picking out the damaging parts. And in the end, the jury may conclude that it is too difficult to make sense out of the long tapes, so they won’t spend much time with them, but will instead look at the other evidence; 4) Because these were phone taps, the assumption could be made that the quality of the tapes is good, but if it is not, and if there is much ambient noise picked up—clicking sounds, etc.—the jury could conclude that hours of static do not help them much or the defense could make a case that the ambient sounds are evidence of the prosecution manipulating the tapes, and either way the jury may dismiss this as unreliable evidence. It is worth noting, that in the deliberation room, the jury will likely only have the tapes but not the nicely edited transcripts that have been distributed to the media, which would magnify the importance of any audio problems with the tapes.

 But will it work? Probably not. First, it is likely Judge Zagel will not grant the motion—and may again rebuke it as superfluous—because the Defense is not asking for anything they do not have the legal right to do anyway. Although the Prosecution is not obligated to play all of the tapes they have, as requested by this motion, the Defense is always able to play any missing portions during cross-examination. So the first hurdle Blagojevich will have to clear is to get the judge to grant the motion and to not further annoy him with the request or the verbiage about what Blagojevich knows as a lawyer.

If the motion is granted, my legal sources have told me that this is an often attempted ploy but it usually backfires on the defense. The judge allows the Prosecution to play what they want, and will let the Defense play the entire tapes during cross-examination. The problem is the jury generally understands why the Prosecution played the portion it did and can easily see that the balance is irrelevant and not germane to the trial. And then to top it off—completing the Defense’s boomerang maneuver—the Prosecutors will point out during the closing argument that it was a deliberate ploy to mislead the jury and direct their attention away from the important points that are at issue. The better strategy is for the defense to force the prosecution to play a longer portion than they wanted—that has the some of the good things and the not-so-good things—this way the defense can be assured there is no misrepresentation and it still allows them to develop some context without the jury picking up on an obvious legal ploy. And you don’t have to hang around a courtroom for as long as I have to understand that juror’s hate it when they think slick lawyers are trying to fool them. Or to put it a little more directly, if I’m falling asleep in the gallery because one side is dragging the trial through some mostly irrelevant testimony, then I know the twelve men and woman who don’t really want to be in the courtroom but are trying to do their civic duty by listening to the whole thing must be falling asleep too.

It is still early yet, there will be more skirmishes before the trial finally gets underway, notably efforts to have the evidence of the cooperating witnesses pre-heard before the jury hears them, and a continued effort to get at least a three month continuance triggered by an upcoming Supreme Court decision that the Blagojevich team thinks will effect their legal strategy. The prosecution has maintained that the 2^nd Superseding Indictment takes this into account, and the trial could go forward with possibly less charges, but not more.

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