Blago defense counsel "strongly considering" putting Blagojevich on the stand. Blago won't testify, says former Prosecutor Safer

Defense Counsel Sheldon Sorosky and Aaron Goldstein, chatting with the media outside the Dirksen Federal building in the Chicago Loop yesterday afternoon, stated they are "strongly considering," putting former Democratic Governor Rod Blagojevich on the stand next week when the Defense puts on its case. Sorosky told Judge Zagel yesterday he anticipated the Blagojevich defense would take 3 ½ days.

Blago likely to face almost a decade in prison

Ron Safer, a former Chicago federal prosecutor who left the U. S. Attorney's office as Chief of the Criminal Division, told this journalist yesterday in an interview at the Dirksen Federal building that he does not think "Blagojevich can be acquitted without taking the stand," but he still does not think Rod will take the stand. Safer said it is a very tough judgment call, but he thinks it would be a "Hellish experience," for Rod to take the stand. Somebody like him would be risking public humiliation. And, at the end of the day, "it probably would hurt his case, not help it. He's playing in the prosecutor's ballpark, not his. It's very tough." 

Safer, Managing Partner and concenrtrating in White Collar criminal defense at the Chicago based Schiff Hardin law firm, thinks that Blagojevich has about a 70% chance of ending up with a significant number of guilty counts added to his guilty count for lying to the FBI from the first trial. And, with that type of a verdict, "Blago is likely to get 10 years and have to serve about 8 ½, opined Safer." Further, if Blago takes the stand and is found guilty, the federal sentencing guidelines would add another year to his sentence, putting him at 9 ½ years.

Next Week's Blagojevich trial schedule                

The Blagojevich defense will start on Monday morning at 9:30 am. The retrial will recess at the end of the day Monday and resume on Wednesday (due to a judicial conference involving Judge Zagel). The first Blagojevich trial was notable for the defense counsel's decision to put on no formal defense, but to be content to rely on its opening statement, whatever defense it could put into its cross examination and arguments at closing.

Cross Examination as a strategic tool for avoiding a conventional affirmative case by Defense

This time around Judge Zagel has been less willing to allow defense counsel to use its questions on cross examination to make arguments that the Judge has repeatedly admonished defense counsel should be reserved either for its witnesses or for closing argument. This has resulted in the prosecution and the judge lodging as many as 150 objections to the questions of attorney Aaron Goldstein as he cross examined one of the government's witnesses and the great majority of the objections were sustained.  Defense counsel Sorosky had a close second place finish on Wednesday, eliciting 133 objections when crossing former Blagojevich law school roommate and first Chief of Staff, Lon Monk.  Monk, by cooperating with the feds, hoped to reduce his sentence from five years to two years. 

Judge Zagel deals with abuse of cross examination by Blago's defense counsel? Too Late?

Sorosky said he wore the objections as a badge of honor (following the code of ethics by zealously representing his client?) and the government's counsel complained in sort of an oral motion to the Judge after lunch on Wednesday that the defense strategy appeared to be working, i.e., the jurors were paying attention to and taking notes of the objectionable questions, even though the objections were sustained and no answers were given.  Judge Zagel agreed with government's counsel and ruled that the defense would have to stop asking objectionable questions and repeating that behavior over and over as if the phrasing of each question was a de novo experience.

He even threatened at one point to "sit counsel down," before his examination had stopped.  He said he would remove the jury, tell the counsel to sit down, and bring the jury back in, giving the impression that the defense counsel had voluntarily completed its cross.  Oddly, federal District Court Judge Zagel also told Sorosky to cure one of  his objectionable cross exam questions by asking a non-leading question. Most lawyers seem to think the one place where you can and should ask leading questions is on cross.  

When the jury returned to the courtroom after lunch on Wednesday, Judge Zagel reminded the jury that questions are not evidence and objectionable questions that result in no answers should not be considered in their deliberations. The judge also said that lawyers have a duty to object to improper questions and the jurors should not hold a counsel's objections against her client. The conventional wisdom is that objections that are sustained may hurt the objecting party's client because the jury feels the objecting lawyer is trying to hide something from the jury. The above instruction was intended to remedy that problem. However, for the government, the judge's admonitions to counsel and the jury may have come a little late. Perhaps government counsel should have complained or made a motion sooner.                                

A 10:00 am hearing is scheduled for today to discuss the defendant's witness list, scheduling and perhaps to get started on dealing with jury instructions.   

Blagojevich's strength became his weakness?

The prosecution rested its case yesterday at 2:32 PM on a quiet note with FBI agent Dan Cain on the stand, as he assisted with some stipulations, and with the irony of judge, jury, Defendant Blagojevich, prosecutors, defense counsel, media and spectators all watching Rod Blagojevich take the oath of office for Governor twice, after his election in 2002 (beating Republican former  IL  Attorney General Jim Ryan by about seven points) and reelection in 2006 (beating Republican IL Treasurer Judy Baar Topinka by about ten points).  Much, but not all, of Rod's victories were attributed to his ability to outraise and outspend his opponents by wide margins.  Perhaps not surprisingly, the trial evidence appears to portray a defendant who becomes obsessed with fundraising, especially with the imminence of Illinois' 2009 Ethics legislation, which removed some of the advantages of incumbents over challengers to fundraise.

After being arrested at his Ravenswood home by the Feds at 6:30 am on December 9, 2008, Rod Blagojevich was convicted in a State Senate Impeachment trial by a unanimous 59-0 vote on January 27, 2009, and in another 59-0 vote that day was barred from holding public office in Illinois.  Blagojevich was indicted in April, 2009 on federal corruption charges including 24 counts of racketeering, mail fraud, wire fraud and solicitation of bribery.  On August 17, 2010, Rod Blagojevich was found guilty by a twelve person jury on only one of the counts (lying to the FBI) and there was a hung jury on the remaining twenty-three counts.  There was also a hung jury on all four counts faced by Rob's co-defendant brother, Robert Blagojevich, who chaired Rod's fundraising efforts for four months prior to his arrest. The government moved to dismiss Robert Blagojevich from the case fewer than 10 days after the jury verdict.

The retrial- Less is more?

The U. S. Attorney's office in the Northern District of Illinois announced within 15 minutes of the jury verdict that it would retry Rod Blagojevich and that retrial began on April 20, 2011. The prosecution's case included almost twelve days or roughly sixty hours of testimony.  This was quite a contrast to the first trial, which took more than six weeks for the prosecution to present its case.

The retrial was much more focused than the first trial, dropping the RICO charges and focusing on a half dozen, or so, alleged quid pro quos that involved the trading of state action by the defendant for campaign contributions. The motivation for streamlining and shortening the trial were the reports of juror confusion due to the complexity of the allegations and length of the trial, which seemed to result in the more important testimony, documents and wiretap recordings becoming buried in a sea of information dumped on the jury.

USA and Blagojevich legal teams: Advantage USA?   

The defense in the first trial had the large campaign war chest of Blagojevich to finance seven attorneys, including the high priced and flamboyant Sam Adam father and son act.  Blagojevich ran out of money in the retrial and has been limited to four tax payer financed attorneys, who don't have the same star power and are less experienced than the team in the first trial, particularly in criminal law, with two of the attorneys being paid at paralegal rates. This is not said to denigrate any of these attorneys. The defense just has a different budget constraint than before and less money means fewer tools and choices. On the other hand, the current defense team has the benefit of the prior legal and factual research work product, trial preparation and of the trial testimony of most of the retrial witnesses.  

The prosecutors are going with the same experienced, criminal prosecution courtroom attorneys as the first trial and are not lacking for resources. However, many if not most of the federal   prosecutors would earn considerably more in the private sector than they do when working for the government, so you could say those prosecutors, in the long run, are underpaid perpetually, undercutting the defense counsels' monetary disadvantage, noted above.  But, not really, the non-pecuniary benefits to wearing a badge and purportedly striving to do justice every day appear to be quite substantial, which in large part is what keeps the prosecutors at the Dirksen Federal Building so longer. In short, money matters, but is not always dispositive. either as to where people choose to work or which party wins.         

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