Blago Adds Lawyer for Jury Instruction Issues

After the dust-up yesterday between Sam Adam, Jr. and the Judge in the trial of former Illinois Governor Rod Blagojevich, in which Adam was warned not to reference the witnesses not called by the Government in his closing argument, which resulted in Blago's closing being postponed until today, a new lawyer entered an appearance for Blago. He's Marc Martin, and his entry says his appearance is limited to jury instruction issues.

Martin also worked on the R.J. Kelly case and Conrad Black cases. His website says he was responsible for most of the pleadings in the Kelly case. Team Blago filed jury instructions on Saturday, July 24 (available on PACER). This is the instruction the Judge refused to give and won't let Adam raise: [More...]

It was particularly within the power of the government to produce Antoin “Tony” Rezko, Stuart Levine, John Filan, Robert Kjellander, Barry Maram, Jesse Jackson, Jr., Raghu Nayak, Ramn Emanuel, Ari Emanuel, President Barack Obama, Valerie Jarrett, Blair Hull, Emil Jones, Bill Quinlan, Fred Yang, Bill Knapp and Andy Stern, who could have given material testimony on an issue in the case. The government’s failure to call these witnesses may give rise to an inference that that witness’ testimony would be unfavorable to the government.

As legal authority, they cite Seventh Circuit Committee (1999) 3.24. It's called "the missing witness instruction."

So what's the 7th Circuit position on it? Generally, the instruction is disfavored. To get the instruction, the defendant must show two things: first, that the absent witness was peculiarly within the government's power to produce; and second, that the testimony would have elucidated issues in the case and would not merely have been cumulative." See United States v. Disantis, 565 F.3d 354, 364-365 (7th Cir. Ill. 2009), citing U.S. v. Gant, where the Court said:

“To establish entitlement to a missing witness instruction, a defendant must prove two things:  first, that the absent witness was peculiarly within the government's power to produce;  and second, that the testimony would have elucidated issues in the case and would not merely have been cumulative.”  United States v. Valles, 41 F.3d 355, 360 (7th Cir.1994) (citations omitted).   The district court has broad discretion in determining whether to give this instruction.  Hoffman v. Caterpillar, Inc., 368 F.3d 709, 716 (7th Cir.2004);  Valles, 41 F.3d at 360.

Gant asserts that an individual is more likely to respond to a summons from the government than from a criminal defendant. He has not contended, however, that he attempted to subpoena Motley as a witness nor has he offered a satisfactory explanation for failing to do so. Gant has not established that Motley was "peculiarly within the government's power to produce," and the district court did not err in [*911] declining to give the missing witness instruction. See United States v. Huels, 31 F.3d 476, 480 (7th Cir. 1994) (holding that HN8district court did not err in refusing to give a missing witness instruction where the defendant "was free to subpoena [witness] if he wished to elicit his testimony").

Then there's United States v. Mendoza, 2009 U.S. Dist. LEXIS 59405 (N.D. Ill. 2009), where the defense didn't request the instruction but tried to argue it to the jury, The Court stopped him.

The Committee Comment to Seventh Circuit Pattern Criminal Instruction 3.24 notes that HN6"the trial court must make an advance ruling before the instruction may be given or the inference argued to the jury" (emphasis added). See United States v. Sblendorio, 830 F.2d 2d 1382 (7th Cir. 1987) (summarizing cases). [*11] Where the witness is equally available to both parties, argument about one party's failure to call the witness invites "back-and-forth . . . speculat[ion] about the meaning of a great deal of non-evidence," so comment about missing witnesses is generally limited to those under the control of the adverse party. Sblendorio, 830 F.2d at 1394 (quoting United States v. Keplinger, 776 F.2d 678, 703 (7th Cir.1985)); see also Committee Comment to Seventh Circuit Pattern Criminal Instruction 3.24. In other words, the jury need not draw an unfavorable inference against a party for failing to call a witness when both parties had an opportunity to call the witness. The Court perceived Camarena's argument to be asking the jury to do exactly this, and acting within its discretion, warned him against arguing the inference further. n1 Sblendorio, 830 F.2d at 1394 ("[T]he administration of this principle, as of other prudential rules, is committed to the sound discretion of the district courts.").

So the law seems to be against Blago. But, one of the witnesses Blago wanted to call was President Obama. He filed a motion to allow Obama to be supboenaed, alleging, among other things:

President Obama has direct and intimate knowledge of facts alleged in the indictment. Indeed, the President is a percipient witness. ...President Obama is a witness to the conduct alleged as well as an impeachment witness to at least two of the government’s critical witnesses.

On April 30, 2010, the Judge denied the motion.

MINUTE entry before the Honorable James B. Zagel:As to Rod Blagojevich, status hearing held on 4/30/2010. Motion to issue a trial subpoena to President Barack Obama is denied.

So how can the judge say Blago had the ability to call him? He can't, but the Government would say it never intended to call Obama either. And that he had no relevant evidence to offer.

Blago also filed a motion seeking Obama's statements to the FBI, but that was denied as well. So he probably can't show Obama's testimony would "elucidate" issues for the jury. On the other hand, didn't one of the witnesses at the trial testify Obama did know some things he said he didn't in his public statement?

As to some of the other witnesses, Levine and Rezko are in custody. (I don't think either has been sentenced yet, so they are likely in the Chicago area.) I don't think Blago could just have subpoenaed them. He'd have had to file a Petition for Writ of Habeas Corpus Ad Testificandum requiring they be brought to court and the Court would have to grant it. Since they were on the Government's witness list, can he argue he didn't think he had to go that route? Probably not.

As an aside, Blago filed an interesting motion back in April seeking to prevent the Government from calling Rezko, Levine and others because they had not been sentenced. His list included: Ali Ata, Joseph A. Cari, Jr., John Harris, Jacob Kieferbaum, Stuart Levine, Steven Loren, Alonzo Monk, Antoin Rezko and Dr. Robert Wienstein. He argued:

The defendant believes that many of these convicted persons/government witnesses have not been sentenced, and, in fact, the sentences of these persons have been deliberately postponed by the government in order that the government may exercise a modern “sword of Damocles” over the witnesses.

The promise and/or hope of freedom as an inducement by the government to obtain testimony by these witnesses is nothing short of bribery by the government as recognized by many respected federal judges....The defendant moves the court to order than any person convicted of a federal felony but not sentenced there for be barred from testifying in the instant trial.

That motion was denied too.

It looks like Mr. Martin has his work cut out for him. But it does seem unfair that the Government got to have other witnesses testify about Rezko and Levine without calling them directly. Almost all the pre-trial rulings in this case worked against Blago, preventing him from introducing various kinds of evidence. If the jury convicts, it doesn't seem like this Judge will grant him an appeal bond.

On the other hand, maybe all this won't matter in the end. As the Christian Science Monitor points out, there was no smoking gun produced against him at trial. Blagojevich only needs one juror to refuse to convict. Sam Adam, Jr. is probably his best shot for that, so I hope he stays in and gives the closing.

< Blagojevich Defense Attorney Threatened With Contempt, Closing Argument Delayed | Sam Adam, Jr. To Close, Judge Gives Him Hint How to Evade Ruling >
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    Very interesting. Thanks. (none / 0) (#1)
    by oculus on Tue Jul 27, 2010 at 09:34:22 AM EST

    Yes. I appreciated your question (none / 0) (#2)
    by Cream City on Tue Jul 27, 2010 at 09:38:55 AM EST
    framing what I couldn't quite figure out how to ask.

    So I really appreciate Jeralyn's answer, too.