Trying to go toe-to-toe with a federal judge

By Janan Hanna

Much like a house of worship, a federal courtroom is steeped in traditional rules of decorum; chief among them an unremitting deference to the judge. Cross him at your own peril.

So it was an unorthodox turn of events Monday when a defense lawyer representing Rod Blagojevich told U.S. District Judge James Zagel that he could not abide by his rules.

Before he was to begin his closing argument on behalf of his client, former Illinois Gov. Rod Blagojevich, Sam Adam, Jr., an experienced criminal defense lawyer in the state system, told the judge he’d rather be held in contempt and go to jail than follow the judge’s ruling.

The issue was what Adam would be permitted to say to jurors in his closing remarks in defense of his client, who is charged with federal corruption.

Outside the presence of the jury, Adam told the judge he believed he was entitled to argue that there were witnesses who were not called who might have elicited evidence exonerating his client. Doing so would be a clear violation of the Federal Rules of Evidence – rules in which Zagel is well versed.

“I have a man who is fighting for his life,” Adam thundered. “I understand your honor’s word . . . but I cannot follow your order.”

“You will follow the order because if you don’t, you’ll be held in contempt,” Zagel responded calmly.

“I will go to jail on this, your honor.”

With that, Zagel adjourned the proceedings for the day and cautioned Adam to take the rest of the evening to formulate another argument, or, perhaps turn the job over to another defense lawyer on his team. He made this decision based on what he said was Adam’s “profound misunderstanding of the law,” and, he reminded Adam “it doesn’t do your client any good to be held in contempt of court.”

Adam wanted to talk about two convicted close associates of Blagojevich, Antoin “Tony” Rezko, and Stuart Levine. Both helped Blagojevich raise campaign funds for the Friends of Blagojevich campaign organization, which is at the center of the prosecution’s conspiracy and racketeering case. It appears Adam was attempting to introduce evidence that was not presented at trial.

Judge Zagel kept reminding Adam of the well-established rule that a lawyer may not “draw an evidentiary inference that the other side did not call a witness that you could have called.”

The defense called no witnesses.

Patrick J. Cotter, a partner in Barnes & Thornburg LLP where he is a member of the firm’s litigation department and white-collar crime defense practice, explained the rule this way:

“Based on what I understand happened in court, it sounds to me like the judge is saying, correctly, that you can not argue or imply to the jury that witnesses neither side called would have testified in any particular way to help either side or hurt either side.”

Under the rules, you cannot refer to what witnesses who were not testifying would have said, Cotter explained.

It seems unclear what Adam’s strategy is.  He created a dramatic scene that overshadowed the government’s closing argument.

Zagel did note that some judges, likely in the state system, might be more lenient and allow this kind of argument.

If so, strict limits would be imposed. The lawyer might be allowed to mention that the other side didn’t call witnesses they could have, but would likely not allow the lawyer to argue about what the witnesses might have said or not said.

Blagojevich’s lawyers have unsuccessfully tried to get the case  - based largely on FBI wire-tapped conversations - thrown out on grounds that the charges are a violation of Blagojevich’s First Amendment rights. They unsuccessfully tried to argue the so-called “advice of counsel” defense – that Blagojevich had no criminal intent because he was talking with his lawyers while he was allegedly scheming to sell state jobs, contracts and a U.S. Senate seat in exchange for campaign contributions.

Having presented no witnesses, the defense team cannot argue about what their evidence showed, and, as we learned today, they can’t argue about what they could’ve shown had they called any, or what the other side’s phantom witnesses would have said.

The judge ordered the lawyers to meet him in court at 8:45 Tuesday morning, perhaps to go over the rules one more time.  Presumably, Adam or another member of the defense team will then present the defendant’s argument and the prosecution will issue its rebuttal argument.

http://www.huffingtonpost.com/janan-hanna/blago-the-lawyers-made-me_b_658239.html

http://www.huffingtonpost.com/janan-hanna/blago-the-lawyers-made-me_b_658239.html

Chicago Daily Law Bulletin, Blago's defense team needed to weigh risks

Blago's defense team needed to weigh the risks
By Janan E. Hanna
After claiming since his December 2008 arrest that he couldn't wait to testify, former Gov. Rod R. Blagojevich stood before a judge Wednesday morning and announced his decision not to testify.

 "Your lawyers have informed me that you have made a choice not to testify in this case,'' U.S. District Judge James B. Zagel said to Blagojevich."That's correct," Blagojevich said, adding that he had "fully and completely" discussed the decision with his lawyers and was making his own choice.

With that, the defense rested its case, presenting not one of the dozen or so witnesses it had said it would consider putting on the stand. Prosecutors then presented a short rebuttal case and the jury was dismissed until Monday when, presumably, the parties will present their closing arguments.

During a brief recess, a jovial Blagojevich leaned over a courtroom bench and signed autographs for courtroom observers.

Blagojevich was charged with 24 counts of corruption for allegedly conspiring to sell a Senate seat vacated by President Obama to the highest bidder and running the state like a racket, doling out jobs, grants and contracts in exchange for campaign contributions. His brother, Robert Blagojevich, who headed the Friends of Blagojevich Campaign for about six months in 2008 was also charged. Robert Blagojevich did testify and insisted he never engaged in quid-pro-quo behavior tying state action to campaign contributions.

Sam F. Adam, one of Rod Blagojevich's lawyers, said Tuesday that he did not believe the state proved its case so that there was no need for Blagojevich to take the stand.

The decision is a gamble since in its opening statement, the defense promised the jurors they would hear from him. The jurors will be instructed that his decision not to testify should not factor into their deliberations. Jurors are not supposed to hold that against any defendant, although some invariably do and will in this case.

Instead, the only words from Blagojevich the jurors heard were profanity-laden tapes of Blagojevich talking with his aides, saying things like his power to appoint someone to the Senate was "(expletive) golden," that he wasn't going to give it up for nothing; that Obama owed him something in exchange for considering Valerie Jarrett for the job and other grandiose, arrogant and explosive statements contained on a couple of dozen wiretapped conversations that the prosecution admitted into evidence.

His former aides also testified against him, saying that Blagojevich was desperate to build up his campaign war chest before Jan. 1, 2009, when new ethics laws would take effect, limiting campaign contributions from businesses doing more than $50,000 in state business.

Taking the stand could have proved treacherous for Blagojevich, who is prone to angry outbursts whenever he's challenged — as the tapes showed. He would be hard pressed to deny that he had a quid-pro-quo state of mind and intent given the contents of the tapes.

He would have to engage in a Clinton-esque legal parsing of his own words to survive on the stand, a task he's not likely savvy enough to pull off.

Imagine a prosecutor asking him: "Mr. Blagojevich, what did you mean when you told one of your aides 'where is my fundraiser … tell Rahm [Emanuel's] to have his brother have a fundraiser', while you were holding back a $2 million grant that you had approved for a school in Emanuel's congressional district?"

He would probably say the request for the fundraiser had nothing to do with his decision to hold up the grant and dole it out in small pieces. How persuasive would the jury find his explanations?

Other examples abound. Blagojevich instructed one of his aides to shake down John Johnston, the owner of two horse racing tracks in the Chicago area, for campaign cash as a piece of legislation favorable to the industry languished unsigned. How would he explain his decision to hold off on signing the legislation he supported while asking for campaign cash?

And what about the testimony of Gerald Krozel, a prominent member of the road construction industry, who testified that Blagojevich asked him for campaign cash, saying he could push forward a Tollway spending bill that would benefit the industry. Instructing his aide Lon Monk to hit up Krozel, Blagojevich is heard on tape saying: "If they don't step up, (expletive) 'em. I won't do the bigger amount in January."

Once again, explaining away the linkage between state action and campaign fundraising would require cool, calm skilled parsing. I don't think his sometimes charming demeanor could carry him through unscathed.

And there was the emotional testimony of Patrick Magoon, the CEO of Children's Memorial Hospital explaining that he had been approached by Rob Blagojevich, at Rod's suggestion, for a $50,000 campaign contribution in exchange for an $8 million to $10 million increase in Medicaid reimbursement payments to pediatric doctors. Magoon was told by the governor that he had approved the payments and three days later Robert called him to ask for a donation. Imagine him trying to explain that away as merely coincidental.

Finally, explaining away the charges that he tried to benefit from his power to appoint a senator would be formidable. He is heard on tape saying he wasn't going to give it away. He wanted a Cabinet post, an ambassadorship, a job with a union organization, funds to start a nonprofit — funds provided by Obama's billionaire friends like Warren Buffett and Bill Gates. He wanted jobs on corporate boards for his wife. He asked his lawyer whether if he appointed himself to the seat, would his wife, Patti, be permitted to be a lobbyist in Washington.

And he even considered the idea of appointing Jesse Jackson Jr. to the Senate after a wealthy Indian-American businessman promised he could raise up to $6 million for Blagojevich if he would do so.

Having previously discounted Jackson, saying he did not trust him, he then instructed his brother to call the businessman and tell him: "I'm elevating Jackson," he said. "I can cut a better deal … some of it can be tangible, up-front … Here's what you gotta do, you gotta talk to [the businessman] …"Some of this stuff has to happen now … you gotta be careful how you express that … pretend the whole world is listening."

Do those sound like the words of a man who doesn't know he's crossing a line?

It's always a risk for a defendant to take the stand since everything the defendant has said can be used against him. Because Blagojevich has said so much, it would have been a perilous risk.

He'll probably proclaim his innocence outside of court between now and the time the case goes to the jury, just as he had to every news, entertainment and reality show host across the country since his arrest.

Janan E. Hanna is a licensed attorney, a lecturer at Northwestern University Medill School of Journalism and a freelance writer. She can be reached at jhan63@gmail.com.

Judges Increasingly Keep Jurors' Names Secret: Blago Judge Challenged

A couple of decades ago during a high profile mob case, Chicago courtroom artist Andy Austin sketched the jurors in their likenesses with one exception: there were paper bags over their heads.

The jurors' names were not revealed to the public (or to the lawyers in the case) and the jury had been sequestered, evidently to protect them from would-be tamperers and to keep them isolated from any
 news accounts of the case.

A similar sketch could be drawn today in the courtroom of U.S. District Judge James Zagel, but in place of paper bags, an artist might top the jurors' torsos with computer monitors or smart phones.
Zagel, who is presiding over the federal corruption trial of former Gov. Rod Blagojevich and his brother, Robert Blagojevich, had ruled that the jurors' names would not be revealed until after the verdict was announced. On the first day of jury selection, Judge Zagel told a lawyer for the Chicago Tribune and other news organizations seeking transparency that he was concerned that bloggers would try to reach jurors.

And last week, responding to a 7th U.S. Circuit Court of Appeals opinion that he hold a hearing on the question, Zagel said he himself had received three emails about this case and had been called out to on the street by someone expressing an opinion about Blagojevich.
In short, technology, which has made us all so accessible, necessitated opaqueness.
Or did it? The judge is likely pondering the question in preparation for a hearing at the end of the month.

The 7th U.S. Circuit Court of appeals ordered the hearing, saying the judge erred by telling jurors they would not be identified and subsequently telling lawyers for the news organizations that their motion was untimely.

There is a presumption of openness in court proceedings, including publicizing the names of seated jurors during a trial. But the presumption can be overcome if a judge makes a showing that the "jurors' safety would be jeopardized by public knowledge, or the defendant has attempted to bribe or intimidate witnesses or jurors."

The court also noted that it and the U.S. Supreme Court have never decided precisely the criteria for determining when jurors' names can be kept secret until the end of a trial.
Under the Jury Selection and Service Act, judges do have discretion to keep jurors' names secret "in any case where the interests of justice so require." But they must make a showing that their fears of events that could affect jurors' safety and impartiality be warranted.

"The judge expressed concern that jurors would be peppered with email and instant-message queries in this high-visibility case. These incoming messages may be viewed as harassment (the anticipation of which would make it more difficult to find people willing to serve as jurors) and certainly would tempt the jurors to engage in forbidden research and discussion," the 7th Circuit said in an opinion written by Chief Judge Frank Easterbrook.

But the court wisely requests some evidence from the judge that the Internet has adversely affected the conduct of jurors or members of the public.

"Have jurors in other publicized cases been pestered electronically (email, instant messaging, or phone calls), or by reporters camped out on their doorsteps?" the court asks. "If judges in other high visibility cases have told jurors to ignore any unsolicited email or text messages, have those instructions been obeyed? If not, do any practical alternatives to sequestration remain?"

The standard instructions to jurors that they refrain from reading, watching or listening to any accounts about the trial is sufficient and broad enough to cover Internet communications. And perhaps, as long time criminal defense attorney Patrick Tuite suggested, the jurors could be ordered to report to the judge if anyone tries to reach them on a social networking site or through email and instant messaging.
Tuite, who represented Albert Tocco - the defendant in the case that resulted in the paper bag sketch - even suggests checking jurors' phones if they've been contacted in order to find the identity of the person who tried to reach them.

It is a crime for members of the public or press to contact a sitting juror during a trial. These precautions could be sufficient.

Tuite noted that in the Tocco case, the decision to keep the jury truly anonymous had caused great controversy and was quite unusual at that time.

"We were fighting over the issue and I said 'are we going to be seeing their faces or are they going to have bags on their heads," Tuite said in an interview. There are things lawyers can discern by names and addresses and ethnicities, Tuite said. (It should be noted that in the Blagojevich case, the lawyers do know the identities of the jurors).

First Amendment advocates complain that it has become more common for judges to withhold the names of jurors, preventing the press from conducting its watchdog role by researching those who are sitting in judgment of a high profile defendant. Lawyers for the news organization noted that press investigations of jurors in the trial of former Gov. George Ryan had learned that jurors had lied on their questionnaires. Two jurors were replaced before deliberations.

"Judges are getting more and more protective of jurors. Basically, juror privacy in some
courtrooms trumps almost all other concerns about a constitutional trial," said Lucy Dalglish, the executive director of the Reporter's Committee for Freedom of the Press.

"It's appalling and it has to stop. Are there jerks who post things on the Internet that are inappropriate, ill-informed and stupid? You bet. We've got to get used to the Internet age. We are rapidly moving toward an anonymous jury system in the federal courts. This will make it impossible for journalists and others to engage in public oversight of the jury selection process."

The state rested its case this week and the defense is scheduled to begin presenting evidence on Monday. The hearing on the juror identification issue is scheduled for July 29.

Blagojevich Trial: Ex Gov Was All About The Benjamins

Blagojevich Trial: Ex Gov Was All About The Benjamins