* Last week, I told subscribers that they needed to go out and buy of copy of Jim Ridings’ book “Len Small: Governors and Gangsters” as part of their preparation for watching the Rod Blagojevich trial. Gov. Small, from Kankakee, openly allied himself with Al Capone and pardoned hundreds of Capone’s soldiers. Ridings’ book is the first complete biography of Gov. Small, and you really should go buy it. Chuck Goudie’s column today is about the Ridings book and Rod Blagojevich…
When it became clear that Gov. Small wasn’t going to succeed in having the charges dismissed - after all, Illinois was still in the USA - his lawyers had to use another well-honed Illinois legal tactic.
They employed a few Chicago hoodlums to pay off the jury.
The governor’s team was so confident that they would win the case; they didn’t even bother putting on a defense. No witnesses, no documents, nothing.
After a six-week trial - most of the time used up by the government’s presentation - the bought-and-paid-for jury was ready to go home. Some jurors started packing up their bags and belongings even before closing arguments were finished.
Their “deliberations” lasted an hour and a half and they found Gov. Small, not surprisingly, innocent of all charges.
Weeks later, even when a trio of Chicago gangsters was arrested for fixing the jury, Gov. Small attributed it to the cynicism and persecution against him by Chicago newspapers. Sound familiar?
* The first stage of jury selection is almost complete…
Former Gov. Rod Blagojevich said he wanted to finish up the jury selection process today and he may get his wish. Only three potential jurors were dismissed for cause this morning, leaving the court with 35 candidates for its final pool.
Zagel has said he wants a jury pool of around 40 before entering the peremptory strike phase of the process. Thirty-one more potential jurors are preparing to be sworn in and then questioned by the judge.
But former federal prosecutor Rodger Heaton said Zagel has the discretion to end the process once he feels he can reach 40. “He does not have to interview everyone in there, he can stop anytime,” he said.
* Judge Zagel showed Friday that he has little sympathy for the defendant…
Former Gov. Blagojevich asked for a short delay if the opening arguments do start on Tuesday afternoon, so he can attend a grade school graduation for one of his daughters.
Judge Zagel denied that request.
But Blagojevich says his attorneys made a mistake…
Blagojevich told WLS-AM hosts Don Wade and Roma that he was not asking for the judge to cancel a half-day of court proceedings, but maybe just end things an hour early.
Not a good sign for the legal eagles.
* The Chicago News Cooperative looks at the prosecutions’ home court advantage…
Thomas Anthony Durkin won a rare acquittal for a lobbyist accused of bribing a state official in 2008, but Mr. Durkin noted that this defeat for prosecutors came in a bench trial. “I don’t think it’s possible to get a fair trial with a jury in a public corruption case in Chicago,” he said.
* Two jurors were dismissed for cause this morning…
Among those cut this morning are a man with personal knowledge of the Teachers Retirement System who had also contributed to Children’s Memorial Hospital. Blagojevich is accused of corruption involving both of those organizations.
The man said on his questionnaire that he was biased toward a guilty verdict. Though the government argued that he was “rehabilitated” during questioning, the judge said, “I didn’t believe him.”
Also out is a retired woman from Poland who worked as a housekeeper for a time. The defense argued to keep her in the pool, but the judge worried the woman did not understand his questioning and cut her. Visibly upset, Patti puffed up her cheeks and shook her head at the judge’s decision.
The courtroom is now waiting for the next group of potential jurors. Patti appears deeply invested in the jury selection process. She is standing over her husband at the defense table, making marks on the yellow notebook where he has been tracking the jurors.
* Don & Roma continue giving the guy a platform…
During an interview on WLS Radio’s “The Don and Roma Morning Show” on Monday, Blagojevich jokingly said he should get comfortable in court because he knows he’ll be there for awhile.
* Tweeting during the trial…
Meanwhile, in the first two days of jury selection, a number of reporters and bloggers were at work, transmitting all manner of trial esoterica from the courtroom. The issue of live-blogging from within a federal courtroom is an emerging debate, but Zagel, who decided against allowing a closed-circuit television feed to the overflow room, is permitting Blackberrys – so long as they aren’t visible to jurors. An order he sent to the media before the trial gave the go ahead to “small PDAs with QWERTY keyboards.”
Mike Dobbins, the clerk of the court, mentioned that one of the concerns the judge had was how jurors might be impacted during the trial if, for example, a witness says something on the stand and immediately a dozen reporters begin furiously tapping away at their smart phones. But ultimately, Dobbins thought, there was no real way to police people’s use of their phones.
Live-blogging (and live-tweeting) has figured prominently in the coverage of the Perry v. Schwarzenegger trial in California, where a lesbian woman is challenging the constitutionality of the state’s Proposition 8 measure that bans same-sex marriage. So far, federal judges in at least eight states and Washington, D.C., have allowed live-blogging to take place from their courtroom. But a number of others have ruled that preventing it does not violate the spirit of the First Amendment, and instead stands to hazard the developments of a trial.
* Shallowest analysis to date…
It’s hard to believe that Rod Blagojevich was the venal criminal the U.S. Attorney’s office is making him out to be, just because he was such an incompetent governor. […]
The General Assembly wasn’t wrong to impeach Blagojevich. He was a terrible officeholder. But that was a political trial. Blagojevich may win in court for the same reason he lost in the legislature: he was a guy who could never get the job done.
You don’t have to conclude a corrupt deal to be convicted of one. Sheesh.
*** UPDATE 1 *** From Darrow Abrahams at the Better Government Association…
Day 3 of jury selection began with the prosecutors and defense counsel resuming the process of removing certain members of Friday’s juror pool for cause.
By the end of the morning challenges, the potential jury pool was numbering in the low 30s. Although the Court “technically” needs a pool of 40 potential jurors to have enough people to select a jury of 12 jurors and 6 alternates, Judge Zagel has stated that he will seek more than that.
The reason why the Court “technically” needs a pool of 40 potential jurors has to do with the number of peremptory challenges both sides will be allowed. In this case, given the number of jurors and alternates to be selected, the Government will be allowed 9 peremptory challenges and the defense will have 13 pursuant to the Federal Rules of Criminal Procedure.
The making of peremptory challenges is one of the last procedural steps before a jury is selected.
And it’s an important one.
That’s because peremptory challenges provide both sides with one final chance to shape the jury they want. And unlike cause challenges, neither side needs to state a reason when seeking to dismiss a juror pursuant to a peremptory challenge.
However, there are limits to peremptory challenges.
Neither side may use a peremptory challenge to remove a juror on the basis of race or sex. Using a peremptory challenge in such a manner may be challenged under the Equal Protection Clause through what is called a Batson challenge. Both the prosecutors and the defense have the right to make a Batson challenge.
Questioning of potential jurors will likely continue through the early afternoon.
*** UPDATE 2 *** The BGA’s Andy Shaw did a midday roundup. Listen here.
*** UPDATE 3 *** From Natasha Korecki’s Twitter page…
attorney Sam Adam Jr. asks for 2.5 hours for opening statements. Judge says..um…NO. he’ll get 1:45
And Susan Berger Tweets…
Defense tables are chaos. Bottles of water cups coffee. Papers everywhere. Prosecution tables- neat little piles of paper
NBC5…
Daycare worker juror w/ bright red hair says never reads or watches news, hasn’t heard anything about blagojevich
*** UPDATE 4 *** From Darrow Abrahams at the Better Government Association…
Judge James Zagel adjourned today’s proceedings with a jury pool of 50 and asked the lawyers for both sides to submit their peremptory challenges in writing to the Court tomorrow morning.
Opening statements are expected to begin tomorrow morning after the jurors are sworn in. The government will speak first.
On the eve of opening statements, here’s a primer on openings and some thoughts on what we can anticipate:
An opening is intended to inform the jurors about the nature of the case to help them better understand the evidence. To that end, openings should focus on the facts, what are the issues in the case and what the evidence will show. That is why lawyers always speak in terms of “the evidence will show that” or “you will hear from Mr. X, who will testify that ….”
Openings should not be argumentative — that is why they are called “opening statements” not “opening arguments.” While this rule is easy to state, it is often hard to explain. The bottom line — if you have a witness or evidence to prove the facts you’re stating, it’s probably proper.
Among other things, openings should not (i) contain any personal opinions — phrases like “I believe,” or “I think,” or “I know” are generally improper; (ii) misstate or mischaracterize the evidence; (iii) refer to any inadmissible evidence; or (iv) instruct the jury on what the law is (that’s for the judge).
Opening statements have already been an issue in this case.
In its Motion to Continue the Trial Date, the Defense argued that it would be an “impossible task to prepare an opening statement” without knowing whether Rod will have to defend himself on the Honest Services counts. Judge Zagel, however, disagreed and semi-admonished the Defense for suggesting that they could discuss what the law is in their opening : “The truth is, in criminal trials opening statements are devoted to what the evidence will show about what happened. The jury’s sole concern throughout the trial, until they reach the end of the evidence and start to hear closing arguments, is what the facts are. Not the law, the facts. There will not be an opening statement on the law.” (Transcript, March 17, 2010 Hearing).
And Judge Zagel was not finished.
In a recent order, Judge Zagel said: “[O]pening statements [are] not a place for legal arguments….The office of opening statements is to predict what will be shown when the evidence is complete, all to assist the jury to put testimony and evidence in context as they hear it.” (Order, May 11, 2010).
Given these recent orders and Judge Zagel’s reputation for running a tight ship, we expect him to give little leeway to the attorneys when making their opening statements. Judge Zagel stated again today that the openings should not contain argument.
Some other thoughts:
We expect the Government’s theme will be the “use of political office for personal gain” and the “violation of public trust.” We also expect the Government to walk the jurors through the various schemes and introduce the key players. The Government’s opening — which we expect to be methodical and heavy on factual details — should largely track the Santiago proffer. Carrie Hamilton gave the opening in Rezko and will likely give it here. At the end of the day today, she told the Court that the Government’s opening should be about an hour.
Sam Adam Jr. is expected to give the opening for Rod. Given his reputation for being a highly impassioned speaker, it should be an interesting contrast of styles. That said, we do not think that Judge Zagel will not let Sam Adam Jr. go too far — this is federal court, not 26th and California. In fact, Judge Zagel told Mr. Adam at the end of today’s proceedings that he would be given 1 hour and 45 minutes to give his opening, far shorter than the 2 1/2 hours he sought.
In addition to discussing Rod’s innocence (and the fact that the evidence will bear this out), we expect the defense to argue that Rod did nothing illegal — that this was just political horse trading. We also expect the defense to refer to plea agreements cut with the cooperating witnesses and the possibility of reduced sentences for these witnesses.
* Resources for following the trial…
* Rod Blagojevich Scandal: Who’s Who
* Fox Chicago live-blog
* WTTW live-blog
* Sun-Times live-blog
* Sun-Times Blagojevich Twitter Page
* #Blagojevich on Twitter
* Susan Berger’s Live Tweets from the trial
* Tribune live-blog
* Chicago News Cooperative live-blog
* AP Blagojevich Trial Twitter Page
* Rod Blagojevich’s Twitter page
* Patti Blagojevich Twitter Page
* RodBlagojevich.com aggregator
* Roundup…
* Video: Image consultant discusses Blago’s media blitz
* Patti Blagojevich Cries at Judge’s Denial of Postponement: Patti Blagojevich burst into tears on Friday after federal Judge James Zagel refused to postpone her husband’s corruption trial next week so the former Illinois governor could attend their daughter’s grammar school graduation.
* Judge sets opening statements for Tuesday in Blagojevich trial
* Blagojevich to return to court to observe jury selection
* Judge Starts Cutting Jurors In Blago Trial
* Let’s hope trial offers some truth plus excitement
* Blagojevich won’t get the verdict he wants
* Where Blagojevich has a strong case
* No need to put Blago’s character on trial
* Statehouse Insider: Blagojevich and the truth
* Blagojevich and wife chipper as circus starts
* Blagojevich says court time has been positive
* Elmhurst woman, 78, turns out to support Blagojevich
