Judge Tells Blagojevich: "I'll Be The Referee" as Tempers Flare

Former Illinois Governor Rod Blagojevich came out swinging yesterday in a press conference attacking U.S. Attorney Patrick Fitzgerald. At a hearing today, the Judge told Blagojevich to let him be the referee. He also refused to grant Blago's brother Robert a separate trial.

The main fight is over what tapes will be played to the jury. The Government wants to play those that fit its theory of guilt. Blagojevich wants them all played. He believes if the jury hears them all, he will be found not guilty. The judge today said he'll be the one to decide which tapes come in.

Blago's lawyer explained after court today that they are upset about what the Government wrote in a footnote to a motion last week. [More...]

Here's what the footnote actually says:

The Court denied the defendant’s motion to play all recordings, indicating it will revisit the issue should the defendant testify. Of course, even if the defendant testifies, it is likely that certain recordings will still be inadmissible for a variety of evidentiary reasons. Accordingly, comment by defense counsel to the jury on the scope of the recordings that the jury should hear before the Court makes final rulings on the admissibility of the recordings also risks prejudicing the government and improperly confusing the jury.

The Government adds:

Second, it is not up to defense counsel to determine which tapes are played, it is up to the Court, and the Court has denied the motion to play all the tapes.

Blago responded in his filing:

The government now having accomplished all that it can by way of releasing what it considers recordings damaging to the defendant presently moves the court to bar those portions which the defendant assures the court will exonerate him, and which the defendant believes the government itself knows will exonerate him.

The defendant’s position has always one: Allow either side to play any recording at least once before the jury.... Let there be no misunderstanding on that. The defense has seen no order from this court denying “the motion to play all the tapes.”

I didn't see such an order on the docket either, but some things are sealed. But the two sides don't agree on much. They can't even agree on who is paying Blago's legal fees. The Government implies it's the public. Blago's lawyers say not a "thin dime" from public funds have been spent. Here's the deal: From a minute order yesterday:

MINUTE entry before the Honorable James B. Zagel as to Rod Blagojevich: The Clerk of Court is directed to make disbursements in the amount of $334,180.00 from the Friends of Blagojevich Campaign Fund.

In February, the court ordered $170,120.00 from the campaign fund for the defense. In March, it ordered $186,562.00 released.

Today the Government filed a motion to limit Blago's cross-examination of cooperator-in- chief against Rezko, Stuart Levine, on topics related to his excessive drug use, personal social life, an alleged extortion attempt and something that is apparently so tawdry it's blacked out. Levine, the Government acknowledges, was a "consistent user" of "marijuana, cocaine, crystal methamphetamine, and ketamine (also called “Special K”)" and, during the 70's, quaaludes. On drug use, the Government says:

The government acknowledges that the defense may impeach Levine on the subject of his prior drug use, but only for the limited purpose of challenging his ability to recall or perceive events. Such evidence is not admissible, however, to impeach Levine’s character for truthfulness.

Levine, you may recall, got a deal to go from a sentencing guideline range of life in prison to 5 1/2 years. In order to get that deal, he has to tell the truth. But, whose truth? When Levine provided statements exonerating another defendant, Ed Vrdolyak, the Government wasn't happy. So Levine changed his tune and buried him. The Government says in its pleading today:

In one instance during his cooperation with the government, Levine intentionally misled investigators in an effort to protect the identity of one of his co-conspirators (Edward Vrdolyak), although Levine subsequently cooperated fully against Vrdolyak and was instrumental in the prosecution of Vrdolyak.

That's the problem with cooperator's testimony. It's supposed to be the truth, but it's really the truth according to the Government. If the defendant has some other truth, and he persists, he loses his deal. If he tells the Government's truth, he keeps the reward. It's purchased testimony, testimony that is bought with promises of leniency, and freedom is a commodity far more precious than money.

Levine's statements about Blago, like Rezko, will have been rehearsed with prosecutors dozens of times. Cross-examining him on those topics is unlikely to develop any major inconsistency. Blago should be allowed to cross him on untruthful statements he's made on any topic, so the jury can get a fairer sense of whether he's credible.

I am a bit surprised by how many motions the Government is filing against Blago seeking to prevent him from doing things. (There's others besides the two I've mentioned here. In one, they ask he be prevented from bringing up things that might encourage jury nullification. In another, they ask the court "to preclude counsel from requesting discovery from witnesses or government counsel, moving the Court for such discovery, or otherwise commenting on discovery matters, in the presence of the jury." They ask that he be "barred from referring to ... excluded evidence or commenting on the Court’s evidentiary rulings in front of the jury". ("For example, comments by counsel or witnesses along the lines, “If it was up to us, we would play all the tapes” are improper.")

The Government asks Team Blago not be allowed to mention the potential penalties faced by the defendants if convicted. They ask the court to "exclude all evidence of defendants’ lawfulness and/or non-corrupt conduct, except for reputation or opinion evidence offered by character witnesses strictly in accord with the limitations of Federal Rule of Evidence 405(a):

In an effort to distract the jury from the charges for which the defendants are standing trial, the defendants may seek to elicit from government witnesses, or present through their own witnesses, testimony that on prior occasions the defendants were lawfully involved in and around politics or committed good acts, for instance, in properly doing their jobs.

In particular, defendants may attempt to demonstrate that they sometimes interacted with potential political contributors and solicited donations without offering anything in return.

Such evidence is sometimes affirmatively offered, but often takes the form of questions posed during cross-examination, such as: (a) “Isn’t it true the defendant did not do anything improper on this occasion?”; (b) “Isn’t it true that defendant always treated you with respect?”; © “Isn’t it true that defendant was a nice person?”; (d) “Isn’t it true that defendant always followed through on his promises?”

The Government wants to ban all mention of the death or suicide of former defendant Christopher Kelly. It wants to ban all reference to Blago's impeachment and removal from office. They say it's irrelevant and happened after the crimes.

The Government says it wants no evidence about Blago's good acts. Acknowledging there's no rule requiring advance notice of a defendant's intent to offer such evidence, they say:

any evidence or argument concerning “good acts” almost certainly will be inadmissible. Accordingly, and in order to avoid surprise and possible error, it would be proper for the Court to require that the defense disclose any such evidence or argument in advance, in order to provide the government an opportunity to object...Absent such notice, the defense should be barred from referring to specific “good acts” in opening statements.

The Government's pleadings in this case read like an evidence course outline. Either they think Blago's lawyer is an idiot who doesn't know the rules, or they think he's a showboat and a loose-cannon who won't abide by them absent a prior and very specific court order -- or as Blago charges, the Government is afraid of the truth coming out.

It seems the Court may have similar fears about Team Blago's tactics. In a prior order on discovery, it said:

Defendant disputes none of the legal principles on which the prosecution relies. Indeed, Defendant’s candid reply offers a concise summary of those legal principles and disputes none of them. Instead, Defendant offers an assortment of rhetorical flourishes oddly detached from the issues in this case, in one instance invoking the case of Khalid Sheikh Mohammed, and, in another, pleading that Defendant needs certain evidence to establish his innocence. This last statement ignores the well-known principle that a defendant does not carry a burden of establishing his innocence; instead, a burden of establishing guilt belongs to the prosecution (though admissible evidence of innocence is always relevant).

The Government and Court may have valid concerns that Team Blago is trying to script the proceedings -- but Blago is entitled to present a defense based on his theory of the case, to challenge the credibility of the Government's witnesses and to expose witness bias and any motive to lie. He shouldn't be restricted to merely responding to the government's theory.

So the Government smells a circus coming to town while the judge anticipates a boxing match. Too bad cameras aren't allowed. Hopefully the cutbacks facing MSM won't prevent them from sending in a bevvy of reporters to cover the trial.

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    No worries (5.00 / 1) (#1)
    by gyrfalcon on Wed Apr 21, 2010 at 11:08:57 PM EST
    This is like peanuts to the MSM.  Blago is utterly irresistible entertainment.

    It's clear both the government and the judge are determined not to let, as you say, Blago and his team turn this into a circus maelstrom of distracting stuff.  Does he have many other options?

    If I were the prosecution in this case (of course, I'm a total layman...), I'd file every possible motion I could come up with to hem them in, in hopes that the judge would go along with as many as possible.

    I think they have the Traficant trial in mind, most likely.

    And as for those "cooperators"-- that's why Susan McDougal is a personal hero of mine.  My understanding from having to follow the ins and outs of the Natalee Holloway investigation in Aruba is that testimony from cooperators in exchange for lesser sentences is flat-out illegal in most of the European justice system.  I'm sorry our Founding Fathers weren't prescient enough to do the same.

    Actually (none / 0) (#4)
    by jbindc on Thu Apr 22, 2010 at 08:37:54 AM EST
    Cooperators can be cross examined by the defense and evidence can be introduced that they have a bias and s motive to shade their testimony (if in fact, they do).  It is up to the trier(s) of fact to determine their credibility.  That's why a good prosecutor will put that information out there and not let a defense attorney ask about any deals made - it shows the government doesn't have anything to hide with regards to that witness.  

    Govt seems to be stacking the deck (5.00 / 1) (#6)
    by Saul on Thu Apr 22, 2010 at 09:52:10 AM EST
    Never understood all this about what is admissible and not admissible.  

    I think prosecutors and defense lawyers only believe in the system when things go their way.

    If the prosecution loses its case why are they unhappy.  If the system proves that the defendant was not guilty then that in general means the prosecution was wrong.  Wrong maybe in even bring the case to trial.  So why isn't the prosecution elated for being wrong. "We could of sent someone to death or prison but we were proven wrong, thank God we were wrong."  But that is not how they view it.

    Sometimes I feel a bad day for the prosecution is "Dam'it we didn't execute anybody today"

    I am not an apologist for some of Blagojevich doings but how many other politicians did exactly what he did but were never caught because they were never taped. Many I bet you.  So to be fair let Blagojevich bring in in his defense every tool he probably can get his hands on and then let the cards fall where they may.  If he is found guilty after a FAIR trial then so be it and vice versa. The real question is how fair was the trial.

    If the prosecution has to prevent any exculpatory evidence from being heard in order to win their case then that is just not justice IMO. It just weakens their case in the appellate review.

    Smells to me like (none / 0) (#5)
    by scribe on Thu Apr 22, 2010 at 09:20:25 AM EST
    there's some real fear on the part of the government that the extent and scope of Blago's dealings with ... Rahm ... will come out, and that his minder in DoJ is exerting some pressure.

    In other words, politics is driving this more than law.

    I should have been more clear (none / 0) (#9)
    by scribe on Fri Apr 23, 2010 at 08:19:54 AM EST
    when I said "dealings with ... Rahm ...".  I meant to talk about what were doubtless the multiple communications - schmoozing, b's'ing, talking, scheming, gossipping, call them what you want - that go on between two pols, particularly two as chatty as Blago and Rahm.  None of these needed to have been a formal "deal" in the sense of a done deal.  Rather more likely were discussions (direct and indirect) the continual chatter of the kind that go on between the general managers of sports franchises, tossing out ideas for trades that never come to pass, at least until one of them decides that what the other is proposing makes sense to them.

    In other words, the whole fetid environment needs to be exposed, and the feds are looking to take a tiny corner of it for the basis of the charge, deprived of context.

    Your disappointment in how this is going is reasonable, but how this goes is normal in today's 'murca.