So much for that idea
Thursday, Jul 15, 2010 - Posted by Rich Miller
* Rod Blagojevich’s attorneys are running into another brick wall with Judge Zagel. The judge is tossing their requests to play recordings out the window…
Of the 20 recordings Blagojevich lawyers asked to move into evidence Wednesday, U.S. District Judge James Zagel said he’ll allow just two to be played and gave a “maybe” on a handful of others. Another 10 new recordings are likely to be played after an agreement with the prosecution.
In all, Blagojevich is seeking to play 38 recordings secretly made by the government, but he must get an OK from the judge in hearings held Wednesday and today.
Apparently, the lawyers are trying the judge’s patience by making frivolous requests…
U.S. District Judge James Zagel at times seemed to search for new ways to call the recordings irrelevant to Blagojevich’s corruption trial.
“Excluded on the grounds of uselessness,” he said of one transcript.
Just about every lawyer I talk to figures that Zagel is gonna throw the book at Blagojevich when the jury finds him guilty. Blagojevich and his lawyers have made a mockery of this case since the beginning. At times, it has appeared that the lawyers are deliberately trying to get under Zagel’s skin so he makes a mistake that will force a mistrial or move an appellate court to overturn his conviction. The real danger for Blagojevich is that Zagel will sentence him to so many years in prison that he won’t qualify for a minimum security lockup. No Club Fed for you!
Back to the tapes…
Many of the conversations Rod Blagojevich wants jurors to hear have to do with his contention that he was acting with the advice of lawyers. Zagel tossed a number of those conversations, saying they didn’t qualify as advice of counsel argument, in some cases because Zagel deemed the discussions political in nature.
Zagel said one proposed recording was akin to a man who tells his lawyer friends he thinks he’s going to poison his wife and they say nothing.
“Can you take from that the answer is to murder your wife?” Zagel said. “The answer is obviously no.”
* Meanwhile, Blagojevich’s “advice of counsel” defense is probably doomed…
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.
- Leroy - Thursday, Jul 15, 10 @ 9:46 am:
“Throwing the book” at Blago come sentencing time because his lawyers are being aggressive in the courtroom doesn’t exactly sound just.
- Rich Miller - Thursday, Jul 15, 10 @ 9:49 am:
===because his lawyers are being aggressive in the courtroom doesn’t exactly sound just. ===
If being “aggressive” was the issue, then it wouldn’t be just. They’re clowns. That’s the issue.
- One of the 35 - Thursday, Jul 15, 10 @ 9:51 am:
Judges are human. It seldom pays to anger those who control your fate.
- Wumpus - Thursday, Jul 15, 10 @ 9:52 am:
Is the judge trying to get this tossed when it is appealed? Play the tape, play the tapes! Let Blago hang himself out to dry some more.
- How Ironic - Thursday, Jul 15, 10 @ 9:53 am:
Zagel should tack on an extra 10 years and say that federal sentencing guidlines call for it under the ‘ignorant moron’ provision.
- wordslinger - Thursday, Jul 15, 10 @ 9:55 am:
–At times, it has appeared that the lawyers are deliberately trying to get under Zagel’s skin so he makes a mistake that will force a mistrial or move an appellate court to overturn his conviction.–
I think that’s right. Not much of a strategy. I didn’t notice the appellate court being sympathetic to the defense after the Ryan trial. Judges really don’t like to overrule other judges.
- Anonymous - Thursday, Jul 15, 10 @ 9:56 am:
“The real danger for Blagojevich is that Zagel will sentence him to so many years in prison that he won’t qualify for a minimum security lockup.”
I mentioned this to somebody just last week. Rod is rolling a very dangerous set of dice with this strategy. It speaks volumes about his egocentric mindset that he is so consumed with the belief that he will be able to persuade the one ‘bleepin golden juror’ with his oratory on the stand, that he is willing to subject his daughters to that many more years without their father around should he be wrong.
Blago has always been notoriously horrific when he has to think on his feet. So should Zagel shut down the scripted Rod Show while he is on the stand (as is almost a surety), we could see a meltdown of epic proportions.
One remaining question is who Rod tries to throw under the bus post-conviction prior to sentencing to try to lessen the sentencing damage. There are only a couple folks that the feds are (very) interested in with whom Rod could help, but at that point, it’s going to be every man (in orange) for himself.
- Hunterdon - Thursday, Jul 15, 10 @ 9:56 am:
Blago is still gagged from talking to the media about the trial, isn’t he? Otherwise, I’m sure during the break next week he’d be hitting all the talk shows once again
- How Ironic - Thursday, Jul 15, 10 @ 10:06 am:
Yes, I’m sure he’s still under the ‘gag’ order.
- Cincinnatus - Thursday, Jul 15, 10 @ 10:06 am:
Should not the judge allow all of the tapes, especially those surrounding the tapes played by the Feds?
If he doesn’t allow the tapes, he risks an appellate claim that the defense was not allowed to provide context for selections cherry-picked by the prosecution.
If he does allow the tapes, does it really make this trial more of a circus than it already is? I think not and even if the tapes are “political in nature” if Rod sounds (even more) stupid than he appears to date, that would only aid the prosecution.
All in all, I think Zagel is making a huge mistake here.
- VanillaMan - Thursday, Jul 15, 10 @ 10:35 am:
I simply do not have any empathy here. We’re talking about a former Illinois governor, the millions he raised and wasted on himself, the fraud and corruption he committed as governor, and his million dollar legal defense team.
Not a single one of us would get the breaks and opportunities this man has had in or out of the courtroom.
He deserves life.
- 13 - Thursday, Jul 15, 10 @ 10:44 am:
Rod Blagojevich: The Leona Helmsley of Illinois politics. Only without the charm.
- Small Town Liberal - Thursday, Jul 15, 10 @ 10:44 am:
- “Throwing the book” at Blago come sentencing time because his lawyers are being aggressive in the courtroom doesn’t exactly sound just. -
It absolutely is just. You can’t allow lawyers to do whatever they want in a courtroom. This is one of the many factors in sentencing. If lawers want to make a mockery of the proceedings, the judge is under no obligation to impose the minimum sentence for their client.
- How Ironic - Thursday, Jul 15, 10 @ 10:45 am:
@Cincinnatus
I think you are missing the legal point of the judge ‘barring’ the tapes. The point is that they have no relevance to the case. Here’s an easy “for example”.
Say you are on trial for killing your wife. For some reason the Feds have been taping your phone calls. And they have one that says “Yes…I killed my wife”.
And the defense wants to play the other 500 hours of tapes where you are saying “I’d like a large pizza”, “I’m going to the mall to get some socks”, “I just got back from the park playing with the dog”; and on and on.
That’s what Blago want’s to play. Hours and hours of nonsense that have ZERO relevance to the case at hand. Just because the other 500 hours of tape might show he’s a ’swell guy’, it’s the 5 minutes of tape that are relevant to the charges that have been levied against him.
The judge is well within his discretion to disallow tapes he feels are irrelevant to the case. And I think his ruling will stand in the appellate courts system.
- casual observer - Thursday, Jul 15, 10 @ 10:45 am:
Does anybody know how many tapes Zagel denied the prosecution to play? I think that may be relevant during appeal if it shows he was just as strict to both sides.
- Anonymous - Thursday, Jul 15, 10 @ 10:50 am:
The number of tapes allowed or denied is irrelevant. It’s the relevancy of the tapes that is relevant
- Cincinnatus - Thursday, Jul 15, 10 @ 10:57 am:
How Ironic,
500 hours, you’re right about that. But the judge puts himself in a tenuous position when he chooses to determine relevance in the 38 tapes Rod wants to use to establish the context of the tapings. I think it may cause an appeal, which I think would be a huge mistake for everybody, except Rod and Patti.
Right now, the judge has ruled only two tapes may be played. I doubt that the prosecution only played snippets from two tapes. Like him or not, Rod deserves the widest latitude in presenting his case, just to preclude an even longer drawn out appeals process than we will already see. And God forbid Rod wins an appeal, would any one of us want to see this case re-litigated, or worse yet, have the prosecution decline to do so?
- tominchicago - Thursday, Jul 15, 10 @ 11:05 am:
Regarding the potential of Judge Zagel throwing the book at Rod because of his amateurish lawyers, I don’t think that it is likely. From my experience Judge Zagel is one of the best judges in the Northern District and I do not see him exercising a pique at Blago. Although it may be justified given how exasperating their tactics appear to be, Zagel is just too much of a professional to let them get to him.
I could be wrong of course but I trust him.
- lake county democrat - Thursday, Jul 15, 10 @ 11:11 am:
Small Town Liberal: the answer to that is sanctioning the lawyers and or issuing an order to the lawyers during the trial to stop whatever they are doing that is so offensive, not punishing their client for the actions of their lawyers.
I’d still like to see the people putting Blago in a moderate security prison and giving him life 1) picking the person who will be released to make room and 2) explaining themselves to the victim(s) of said released prisoner.
- Anonymous - Thursday, Jul 15, 10 @ 11:11 am:
Cincinnatus, you just don’t seem to get it. The only basis for playing any tape or offering any evidence of any sort is relevance to the charges. Whether the judge excludes 2 tapes or 500 tapes, he will be upheld if they were not relevant. It makes absolutely no difference how many tapes the prosecution played.
- Cindy Lou - Thursday, Jul 15, 10 @ 11:13 am:
Cindy’s uninformed question…can’t Rod call as a ‘witness’ to the stand the person he wants to show ‘how innocent and ignorant’ Rod supposedly was and simply say ‘did you tell Rod he could do all this crap knowing Rod really didn’t know better?”
Why does Rod need to play a tape to get across a convo between him and a possible witness he can actually call to the stand to speak in person?
- Phineas J. Whoopee - Thursday, Jul 15, 10 @ 11:19 am:
He won’t throw the book at Blago because of his lawyers-he will because of Blagos crimes and making a mockery out of Illinois government.
Zagel should give Blago a fairly long leash when it comes to tapes-after all-the prosecution seems to have plenty of testimony that was not related to crimes. For example, how oftem Blago came to the office or whether he hid in the bathroom. Stuff like that seems a little over the top.
Let Blago spew-then throw the key away.
- dupage dan - Thursday, Jul 15, 10 @ 11:20 am:
I suspect that Zagel has a clear idea that what is on the tapes the defense is requesting will have some bearing on the case. Judges don’t like to be overturned on appeal. I have confidence that there will be multiple appeals (will Big Jim Thompson lead the charge? LOL). I am confident that RB will have to serve time during the appeals and I am confident that he all his appeals will be denied.
Altho on the face of it it seems unfair that the behavior of an attorney could be reflected on the prison term of the convict, we can have confidence that the behavior of RB’s attorneys are a direct reflection of the will of the defendant. Throw the book at him!
- Bill - Thursday, Jul 15, 10 @ 11:29 am:
Rod is gonna walk. In fact, he is so confident that I hear that he is looking for property on Lake Springfield to relocate to when he starts his new career as a blog master and political newsletter writer.
- Rich Miller - Thursday, Jul 15, 10 @ 11:30 am:
Where’ve you been, Bill? At the trial all day?
- dupage dan - Thursday, Jul 15, 10 @ 11:38 am:
Bill might need some round the clock therapists when RB is convicted, just to protect him from himself. Steady yourself, man, your idol may fall from grace but he will rise from the ashes, like a phoenix, ready to scam again. Perhaps as a sham-wow barker on late nite TV.
- Ghost - Thursday, Jul 15, 10 @ 11:42 am:
Zagel is going an excellent job of enforcing decorum and keeping this as a trial on the merits.
Blago was dranw to antics in his selction of lawyers, but he needed atorneys wth lots of fed trial experience and not just a good side show.
“…All in all it’s just another brick in the wall….”
- Cincinnatus - Thursday, Jul 15, 10 @ 11:49 am:
- Anonymous - Thursday, Jul 15, 10 @ 11:11 am:
“Cincinnatus, you just don’t seem to get it. The only basis for playing any tape or offering any evidence of any sort is relevance to the charges.”
Seriously, you really don’t think I get it? C’mon. An appeal can be made based on the defense saying that the judge’s ruling on relevance was wrong, especially in a conspiracy case, and especially when the prosecution cherry picked their examples (what relevance was Rod’s wardrobe?). I am not even saying that an appeal would be withheld, just pointing out a line of defense that an attorney could use. If Zagel provided wide latitude to the defense, he short-circuits this line of appeal. If during the introduction of the tapes, if the defense does not provide cause, the judge can rule that evidence out of order. I also still have some curiosity to how many tapes the prosecution used, limiting the defense to any number less than that seems fishy.
- And I Approved This Message - Thursday, Jul 15, 10 @ 12:04 pm:
“What relevance was Rod’s wardrobe?”
The profligate spending and subsequent debt were just a little thing they call “motive” in trials. Rod has said from the begining that he wanted to play all the tapes. One of the reasons is that the jury would be so glazed over listening to hours of inane conversations they would probably forget some of what they heard in the prosecution’s case. Or at least Rod hoped so.
- Cincinnatus - Thursday, Jul 15, 10 @ 12:09 pm:
I saw little evidence that Rod was making a profit on his illicit actions. Most of the evidence was pay to play.
- Rich Miller - Thursday, Jul 15, 10 @ 12:11 pm:
===I saw little evidence that Rod was making a profit on his illicit actions===
You’re not looking hard enough.
RRB was trying desperately to raise money by the end of the year to skirt the law on contractor donations. He wanted that money. He wasn’t running again. He wanted J3’s money.
Why did he want that money? He says it over and over on the tapes. Legal fees were killing him. He can use campaign money for legal fees, but if he didn’t have it, the cash would come out of his pocket. So, this was more than just standard pay to play.
- Way Way Down Here - Thursday, Jul 15, 10 @ 12:18 pm:
It’s not the same without you Bill.
- wordslinger - Thursday, Jul 15, 10 @ 12:21 pm:
Cincy, you don’t hear Rod plotting and directing extortion of the hospital, road builders and racetrack? You don’t hear him plotting and directing bribery to himself for the senate seat?
What in the world is he talking about then?
- Cincinnatus - Thursday, Jul 15, 10 @ 12:27 pm:
Of course I did, wordslinger. It appears to me that Rod was trying to funnel money into his campaign coffers.
- Ghost - Thursday, Jul 15, 10 @ 12:36 pm:
The Patti evidence is pretty storng that she was getting no work commissions from those profitting from Blago as well. So money was also funnedled to his home accounts so-to-speak.
- Cincinnatus - Thursday, Jul 15, 10 @ 12:38 pm:
- Ghost - Thursday, Jul 15, 10 @ 12:36 pm:
“”The Patti evidence is pretty storng..”
That dog don’t hunt. Indict Patti and I’m with you on that.
- Rich Miller - Thursday, Jul 15, 10 @ 12:39 pm:
===That dog don’t hunt.==
It does when Rod set it up. You’re starting to sound like Bill. Just sayin…
- How Ironic - Thursday, Jul 15, 10 @ 12:50 pm:
@Rich
One more post and you can merge the two. They can post together as “Bill from Cincinnatus”
Just sayin….
- wordslinger - Thursday, Jul 15, 10 @ 12:54 pm:
–It appears to me that Rod was trying to funnel money into his campaign coffers.–
You mean that big fund that Rod controls? It’s still extortion and bribery, no matter where you tell them to send the check. The tapes and the testimony make it a slam dunk, in my mind.
- Leroy - Thursday, Jul 15, 10 @ 12:59 pm:
==It absolutely is just. You can’t allow lawyers to do whatever they want in a courtroom. ==
Then punish the lawyers, not their client.
You have a twisted sense of justice, Small Town Liberal.
- Secret Square - Thursday, Jul 15, 10 @ 1:36 pm:
On a side note, has anyone attempted to download the SJ-R’s collection of Blago’s Greatest Bleeping Hits ringtones? It includes some of the old standards, of course, but there’s also some new gems some of you probably haven’t heard yet. My favorite: “win on Tuesday, (bleep) everyone on Wednesday and quit on Thursday”.
- Just Because - Thursday, Jul 15, 10 @ 2:33 pm:
How can he claim bad legal advice when He himself is a lawyer
- girllawyer - Thursday, Jul 15, 10 @ 2:34 pm:
Cinncinatus, would you also argue that that the defense should be allowed to call the same number of witnesses as were called by the prosecution, regardless of whether they had any relevant testimony to offer? That’s not how it works. Admissibility of evidence is not based on some arithmatical balance!
- Cincinnatus - Thursday, Jul 15, 10 @ 2:45 pm:
girlawyer,
I guess I am not expressing my point very well. As much as we’d like to think that the judiciary is woking in a vacuum, they aren’t. I think that such a highly politicized circus like the Blago trial requires certain accommodations by the judge that may more expansive than your run of the mill trial. The judges first priority is that justice is served. I would probably be inclined to err on the side of caution and provide Rod with a bit of latitude.
If I were able to hear all of the tapes, I would probably want to slam the door on Rod this minute. But remembering when Fitzgerald appeared as judge, jury and executioner when he announced the indictment, and we don’t know exactly how the taped segments were cherry-picked, I want to make sure that this trial is the only one we see. An extra few days upfront, especially since the judge can monitor what is played in court and make rulings at that time along with his rationale, can short circuit problems later, no?
- Say WHAT? - Thursday, Jul 15, 10 @ 4:56 pm:
===How can he claim bad legal advice when He himself is a lawyer ===
Rod is a simple man of the people who hailed from immigrant parents. He only got a C’s in school, remember? He was recently on TV and the poor thing couldn’t even use a computer (insert sarcasm here). My point is this - Rod has gone out of his way to make people feel empathy for him and to show how inept he is. He used it to his advantage, made others do all his work and then threw them under the bus. He is dumb like a fox. His narcissism complicates things for him. Just an observation.
- Cincinnatus - Thursday, Jul 15, 10 @ 5:24 pm:
Judge to allow some but not all tapes:
http://abclocal.go.com/wls/story?section=news/local&id=7557550
- Original Rambler - Thursday, Jul 15, 10 @ 6:44 pm:
I don’t know what Patti did or did not do, but I recall from my real estate days several brokers getting sizable commissions wholly inconsistent with their contribution to the deal that was ultimately made. I’d be surprised to hear that practice no longer goes on.
- justsickofit - Friday, Jul 16, 10 @ 1:17 am:
@cincinnatus I understand your point, and agree with it.
The whole legal advice thing goes to intent, according to an article in the Tribune. “He relied on many people, some lawyers and some not … who gave him advice as to what he could do and what he couldn’t do. He relied on it,” Blagojevich attorney Sam Adam Sr. said. “That shows his lack of willfulness.”
Evidently “willfulness” is the mens rea required by the law.