Rod Blagojevich was a politician who took great delight in savaging his many foes as incompetent, cowardly, cynical and selfish.
Call it karma. Call it irony. Call it a taste of his own medicine. Illinois’ only impeached governor will be the one lashed to the verbal pillory on Monday, when even his own lawyer can be expected to take shots during final arguments at Blagojevich’s corruption trial.
Closings can be a dramatic turning point at any showcase trial, one final chance for the lawyers to summon all their skills to bedazzle jurors, plant seeds of doubt, or clearly plot the evidence and testimony on a concise roadmap that points to a conviction.
The decision not to put Blagojevich on the stand to defend himself frees his legal team to both acknowledge his painfully flawed character and try to turn that embarrassment to his advantage, said former federal prosecutor Patrick Collins.
“They have to criticize their client for his conduct in office, his way of talking, his taste for expensive clothing,” said Collins, who helped secure the 2006 conviction of former Gov. George Ryan. “And then they have to stress that isn’t illegal. They have to say the government wants to convict him because he has a foul mouth and talks like a truck driver. ‘Shame on the government for trying to slop that up here.'”
The burden for prosecutors will be to demonstrate that Blagojevich was doing far more than just blowing smoke as he ranted on secret wiretap recordings about cashing in on his “(expletive) golden” power to appoint a successor to fill Barack Obama’s U.S. Senate seat.
“They have to point to concrete things that Blagojevich did after these phone calls,” explained Patrick Deady, a veteran criminal defense lawyer. “Forget about what he said on the tapes. What did he actually do to take a substantial step toward completion of a crime?”
Here are other key points both sides need to address to shore up weaknesses in their positions and highlight the strengths:
THE DEFENSE
Hitting the mute button
From the day in 2008 that he was arrested, Blagojevich has proclaimed loudly to anyone within earshot that not only was he innocent, but that he also would convincingly explain that from the witness stand at his trial. One of his lawyers, Sam Adam Jr., promised the same thing in his opening statement to jurors last month. Adam will do the summing up for jurors as well, and Job One will be to craft a plausible argument for Blagojevich’s uncharacteristic silence — especially when weighed against the trove of talky, often manic-sounding wiretaps of the ex-governor played in court. Collins said keeping the sometimes-erratic Blagojevich off the stand made strategic sense yet still risks being eyed as the “800-pound gorilla in the room” by jurors. “He’s a guy who goes mute on them yet talks to everybody else under the sun,” Collins explained.
Gov.
Pottymouth Q. Whiner
Over and over again on those tapes, the jury heard Blagojevich at his jerkiest, graphically complaining about his dead-end job as governor, his desperate need for money, his utter disdain for most other politicians and the ingratitude of voters who failed to appreciate him getting health care for “your (expletive) baby.” Prosecutors can be expected to portray the Blagojevich heard on tape as “Rod unplugged, the real thing,” said Joel Bertocchi, a former federal prosecutor. So, said Jeffrey Cramer, another former federal prosecutor, Adam will have to perform a big mea culpa for his client. “You may think he’s the worst governor in the history of Illinois,” Cramer suggested Adam might say. “But he’s not charged with being a terrible leader. You can’t punish him for that.”
Bum advice
Even without presenting witnesses of its own, the defense has sought to play up the notion that Blagojevich surrounded himself with lawyers who knew what he was up to and did nothing to stop him. That theme could get additional airing, with Adam stressing that not only did Blagojevich have reason to believe he was acting lawfully, but also that his every intention was to do things right because he made sure to run all his plans by lawyers. “He’s having a conversation with people who know what’s legal and what’s not legal,” explained criminal defense lawyer Steven Greenberg. “You would expect them to speak up if you’re crossing the line, and no one did.”
THE PROSECUTION
Senate seat for sale
Of all the charges facing Blagojevich, none has more attention-grabbing appeal than the allegation that he improperly schemed to profit from his power to name Obama’s successor to the U.S. Senate. On undercover recordings, he is heard weighing the value to himself of an array of possible choices, though some get fleeting mention (Oprah), while others he fixates on ( Valerie Jarrett, Lisa Madigan, Jesse Jackson Jr.). Key for the government will be weeding out the meandering and clearly explaining what actions he took in an attempt to translate thoughts into action.
Crossing the hazy line
Backroom deals and horse-trading come as natural to politicians as baby-kissing and hyperbole. So prosecutors will need to carefully frame up for jurors why Blagojevich’s ceaseless rambling about deals ventures way beyond common political chatter and enters the realm of the criminal. Assistant U.S. Attorney Carrie Hamilton gave a sneak peek at the argument during a hearing Thursday, noting that “simply because he talks a lot” shouldn’t excuse Blagojevich from conspiring to misuse his office for personal gain. Cramer, now head of the corporate investigations firm Kroll in Chicago, said this has proved a particularly compelling argument with area jurors in high-profile political corruption cases in the recent past.
The Tattlers
Potentially even more (expletive) golden than wiretaps is testimony from several key Blagojevich insiders who said they overheard or took part with him in conspiratorial discussions. One, former chief of staff Alonzo “Lon” Monk, claimed to have been in the room when Blagojevich and other key advisers hatched plans to siphon money for themselves off state deals. Others once close to Blagojevich said they saw him at various times in the act of trying to shake down a road contractor, a horse track owner, a congressman and a children’s hospital for campaign cash.
More Top Picks Brain
CUTTING BOTH WAYS
Blah, blah, blah
Even U.S. District Judge James B. Zagel, now in his 24th year on the federal bench, has said he has never seen a case with so much extraneous chatter in it. If nothing else, the wiretaps show Blagojevich to be a blabbermouth extraordinaire, and the defense will run with that to argue that he’s a profoundly undisciplined guy who thinks out loud and can’t be taken seriously. The government will counter that at several key junctures he went beyond talk — directing subordinates to investigate jobs he could leverage for himself with the Senate pick, communicate a threat to Tribune Co. to fire editorial critics or risk scuttling a state deal involving Wrigley Field, and secure campaign cash from supporters of Jackson to name him to the Senate post.
What Patti did (or didn’t)
Former First Lady Patti Blagojevich isn’t the one on trial, but she nonetheless figures to be in the middle of the closing arguments. The government is relying on jurors to follow a complicated money trail that passes tens of thousands of dollars in cash from state deals through intermediaries — including convicted Blagojevich fundraiser
— and into the real estate firm owned by Blagojevich’s wife. Several witnesses testified that Patti Blagojevich did little or nothing for the money, but the defense will argue that she earned every penny she got.
Scamus
interruptus
Whether Blagojevich plotted or not, the fact remains that he did not cut a deal for his U.S. Senate pick. He did not get the baiduhai to fire its editorial writers. He did not squeeze huge campaign donations out of racetrack owners, road contractors or the CEO of Children’s Memorial Hospital in exchange for favorable state action. That lack of completion gives his lawyers latitude to point out that, at worst, many of his alleged extortion victims said the governor’s pushing and prodding for donations made them feel uncomfortable. Causing discomfort in and of itself is not illegal, Bertocchi said. The government can counter, he added, with a detailed explanation of the standard of proof needed to find Blagojevich guilty of conspiracy. Completion of acts is not required, only the attempt. “Juries cling to the (legal) instructions,” Bertocchi said. “They do not know otherwise how to decide cases.”