Observers Anticipate Blagojevich Taking Stand

By Bill McMorris
Illinois Statehouse News

   CHICAGO - 7/14/2010 - The federal government had three months to prove former Illinois Gov. Rod Blagojevich guilty of 24 counts of corruption. Prosecutors seem to think it only took five weeks, but that will be up for the jury to decide.
   The prosecution on Tuesday rested its case, and defense attorneys will start presenting witnesses on Monday. The jury so far has been inundated with wiretaps of the former governor allegedly plotting the sale of a U.S. Senate seat or the strong-arming of a political player; testimony from former insiders, who pointed to Blagojevich as a man-obsessed with fund-raising; and federal agents talking about his lavish lifestyle and $20,000 suits.
   The sheer volume and nature of government evidence has impressed former federal prosecutor Rodger Heaton, who helped convict former Arkansas Gov. Guy Tucker of fraud in 1996. But the outcome of jury trials are never guaranteed, he said.
   “The jury will have to decide, should the words (on tape) be taken at face value? Do you trust the co-conspirators (who testified) or Blagojevich?” Heaton said. “When you have questions like this in a long trial the credibility of the actors in the courtroom–witnesses and lawyers–becomes critical.”
   Blagojevich has declared his innocence to anyone within shouting distance at the courthouse and on reality television. Now it is up to defense attorneys to counter the government’s case with a different take on the governor’s actions. One of the people they will use to make this case is Rod Blagojevich.
   Sam Adam Sr., the storied lawyer from Chicago’s 26th and California streets criminal court, said he will be handling Blagojevich’s questioning personally. He said he has been preparing his client for the stand for six months and is confident he will hold his own under cross examination.
   Heaton, himself a white collar defense attorney at Hinshaw and Culbertson, said the eagerness to get Blagojevich on the stand is surprising.
   “Normally you wait until after the prosecution’s case to say (the defendant) will testify, but they came out and said it in the opening statement,” he said. “It is a high risk maneuver, but they must feel like they have no choice.”
   Blagojevich’s testimony may allow the defense an opportunity to offer its own narrative as to what was going through the governor’s mind when he was talking campaign contributions and the Senate seat. But it will also, however, allow the prosecution the chance to restate its case, constantly reminding jurors of previous tapes and testimony–a “luxury” for any prosecutor, according to Heaton.
   But that isn’t the only aspect of the defense’s case that surprises Heaton. Blagojevich’s attorneys will argue that the former governor was acting under advice of counsel during the alleged conspiracy. The defense will try to prove that had he known what he was doing was illegal, he would have stopped. Blagojevich’s attorneys have already tried to lay the foundation for the argument, asking his former advisers, almost all of whom have law degrees, if they ever attempted to warn the governor about the legality of his course of action. Each answered no.
   Heaton said such a defense is common for tax cases, but rare for white collar criminals.
   “The jury has to decide that Blagojevich did not know what was right and wrong,” he said. “It doesn’t really fit here, influencing actions by your contributions.”
   The defense is hoping to establish these kinds of doubts to the jury. But the argument will mostly play out when the jury is not in the room. It is up to federal Judge James Zagel to instruct jurors to treat many of the prosecution’s witnesses as attorneys giving bad legal advice, rather than co-conspirators in Blagojevich’s schemes. It is a high bar to clear.
   An advice-of-counsel defense must demonstrate that Blagojevich approached his advisers “for the purpose of securing advice on the lawfulness of his possible future conduct” and that he provided them with all necessary facts. The prosecution has argued that Blagojevich sought political advice, rather than legal advice. He was, the argument goes, gauging how much President Barack Obama’s former Senate seat was allegedly worth, rather than seeing if it was legal to allegedly trade it for campaign donations or cabinet posts.
   Heaton is not the only one surprised by the move. Zagel told the defense he has only seen one person with a law degree argue advice-of-counsel during his 23 years on the bench.
   “It didn’t end well for him,” he said.
   Courtroom observers, like David Morrison, are already starting to analyze how things will end for Blagojevich. Morrison, who serves as associate director of the Illinois Campaign for Political Reform, has attended several trial sessions. He is convinced the prosecution has made a strong a case as ever. Morrison said testimony about Blagojevich’s attitude toward his office, his seeming nonchalance about governance and fervor for fund-raising will prove especially damaging.
   He pointed to testimony from former Deputy Gov. Bob Greenlee as key to the prosecution. Greenlee said Blagojevich would hide in the bathroom to avoid talking with state budget director John Filan, but he never missed a meeting when it came to his campaign budget.
   “People who endured the Blagojevich years are learning the details about Rod that explain why things went so wrong,” he said. “He campaigned as a reformer, but he was George Ryan on steroids.”
   George Ryan is Blagojevich’s Republican predecessor in the governor’s office and potentially federal prison. He was convicted of illegally selling government contracts and drivers’ licenses in 2006. Morrison also followed his trial very closely.
   “The case here is stronger because you have the defendant himself on tape, talking about his criminal acts,” he said.
   Defense attorneys will be spending the weekend preparing tapes of their own, which they say will vindicate the governor, as a politically, not financially, motivated leader. Zagel gave the defense until Monday to prepare its case–an extension made necessary by the prosecution’s early finish.
   While taking away an opponent’s expected month of planning does have strategic benefits, Heaton said it was likely unintentional.
   “The estimates lawyers make are at best an educated guess,” he said. “Who knows how long opponents will go on cross examination, how long the judge will let them go on.”
   Zagel kept a tight leash around the defense during cross examination, which is part of the reason the prosecution was able to end early. He did not allow Blagojevich’s defense team, including showman celebrity attorney Sam Adam Jr., much leeway in introducing new tapes or theories about wiretaps and witness testimony. Zagel sustained objections to defense questioning by the dozens at times.
   “Are you done yet?” became a refrain from the judge during cross examination.
   Heaton expects Zagel to enforce the same narrow standards on the prosecution during Blagojevich’s defense.
   “The judge will be careful to control the cross examination,” he said. “I would be surprised if he gave the prosecution wider latitude when he was so firm with the defense.”
   An early rest also reflects the prosecution’s confidence that they proved their case with the witnesses on hand. Trial lawyers normally pad their witness lists at the start of a case, so they can make up for poor testimony. One name that was noticeably missing from the stand: convicted influence peddler Tony Rezko, who was central to the alleged schemes of Blagojevich. Rezko is a witness nobody wants to touch, Heaton said, despite his close association with the administration.
   “He comes with a lot of baggage, so if you can prove your case without him, you do it,” he said.
   Heaton said prosecutors made a strong case without Rezko, but is staying away from predictions for now, save one.
   “I have no doubt it will be interesting when Blagojevich does testify,” he said.
   Ditto Morrison.
   “We’ll be lined up outside at five in the morning to get tickets,” he said.
   He won’t be the only one.
   Story courtesy of Illinois Statehouse News.