 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 fundraising; 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 is 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 &
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 in 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 as strong a case as ever. Morrison said testimony about
Blagojevich's attitude toward his office, his seeming nonchalance
about governance and fervor for fundraising will prove especially
damaging.
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He pointed to testimony from Bob Greenlee, former deputy
governor, 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 he
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 5 in the morning to get tickets,"
he said.
He won't be the only one.
[Illinois
Statehouse News; By BILL McMORRIS]
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