In what may have been the most stunning moment of Rod Blagojevich’s two criminal trials, a federal prosecutor began cross-examining the former governor with this biting question: “Mr. Blagojevich, you are a convicted liar, correct?”
Blagojevich, earlier found guilty of lying to the FBI, stammered “yes” even as his lawyers shouted objections, which were summarily rejected by U.S. District Judge James Zagel. The judge later allowed the characterization repeated in the government’s closing argument.
And that, contends the legal team for the now imprisoned Blagojevich, is just one of a litany of errors and one-sided rulings from Zagel that undermined a robust defense and now cries out for a higher court to reverse his convictions on 18 criminal counts.
Read the full text of the Blagojevich appeal
The formal name of the government’s case was “USA v. Blagojevich,” but if defense appeals came with their own titles, the 153-page document filed late Monday with the 7th U.S. Circuit Court of Appeals might be called “Blagojevich vs. Zagel.”
Blagojevich was convicted of misusing his powers as governor in an array of shakedown schemes, including one to sell the U.S. Senate seat vacated by the 2008 election of Barack Obama as president. His two trials, in 2010 and 2011, were marked by running battles between Zagel and Blagojevich’s lawyers over motions, rulings, evidence and even the courtroom demeanor of the attorneys and the defendant himself.
And there was no letup in the appeal, which all but flatly declares that the veteran judge might as well have been sitting at the prosecution table.
“It would take too much space to catalog each erroneous evidentiary ruling by the lower court,” asserted the appeal, prepared by a team of lawyers led by criminal-defense specialist Leonard Goodman of Chicago.
The filing accused Zagel of preventing Blagojevich from demonstrating through testimony or evidence that he believed he was acting lawfully and in good faith. Zagel, the lawyers charged, induced Blagojevich to take the stand in his own defense, then severely limited what he could say, allegedly making him look “foolish” rather than sympathetic.
They also attacked Zagel for seating a juror who the lawyers contend appeared predisposed to convict Blagojevich during questioning before testimony began. What’s more, they accused Zagel of giving bad jury instructions and abusing his discretion over sentencing to hand out an unusually long 14-year prison sentence.
The scattershot nature of the legal arguments in some ways reflects the aggressive, slash and burn public style that Blagojevich long fashioned for himself. As governor, and even later as a criminal defendant, Blagojevich often portrayed himself as a champion of the little guy besieged by powerful political forces out to thwart him.
That theme plays out in his appellate filing. Blagojevich, it declared, was a sometimes frustrated champion of expanded children’s health care trying to seize on his power to pick a Senate replacement to bring his advocacy to a new level. Had Blagojevich “not sought a political benefit in return, he would have done a disservice to all of his supporters,” the appeal claimed.
Some legal experts questioned whether such sweeping appeal tactics, especially attacks on Zagel, will hold much sway with appellate judges at the Chicago-based 7th Circuit which has one of the lowest criminal reversal ratings in the nation.
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Joel Bertocchi, a veteran appellate attorney in Chicago, said an appeal that focuses on a few key issues is stronger when it comes time to argue. “It’s better to try to punch holes in the case rather than knock the whole thing over,” he said.
Painting Zagel as biased could hurt more than help, said Bertocchi, who indicated the judge is well regarded by appellate judges as “smart and very experienced.” He added that the appellate judges would be reluctant to reverse rulings over which Zagel has discretion, among them the scope of wiretapped recordings that could be played at trial or what testimony could be given.
Another hurdle for the defense is that, even if appellate judges can be convinced that Zagel erred, it needs to have been serious enough to invalidate a conviction.
“”You can always criticize a ruling, but the bottom line is did it really affect the outcome of the trial?” said Mike Rathsack, another Chicago appellate specialist.
In Rathsack’s view, perhaps the strongest argument laid out by Blagojevich’s lawyers was their claim that Zagel gave an improper legal instruction to jurors, in effect lowering the bar for a finding of guilt.
The appeal contends that under the law, Zagel should have told jurors that to convict Blagojevich, they would have to be convinced that the evidence showed he had “knowledge of wrongdoing.” Zagel jettisoned that wording at Blagojevich’s second trial, informing jurors instead that “the government is not required to prove that the defendant knew his acts were unlawful.”
Improper revision or not, the question for appellate judges will be “did that really affect the jury’s decision?” Rathsack said.
Lauren Kaeseberg, one of Blagojevich’s lawyers, said the appeal struck many themes, but the most predominant was that Zagel prevented the former governor from putting on an effective defense.
“Whether it was limiting Rod’s testimony in improper and unconstitutional ways, not being able to play tapes that would corroborate his testimony … there is so much the jury didn’t hear,” Kaeseberg said. She also said Zagel’s ruling led the jury to be misinformed about where the line is between legitimate political horse-trading and criminal activity.
“The cornerstone of the defense is he always acted in good faith. Rod did not ever believe he was breaking the law,” she said.
Blagojevich did not testify at his first trial, even though one of his lawyers promised jurors he would at the start of the proceedings. That trial ended with the jury hung on most counts and convicting him on only one — lying to the FBI about the level of his personal involvement in political fundraising.
He did take the stand at the second trial, however, and the appellate brief contended he did so under representations from Zagel that amounted to a bait-and-switch.
Blagojevich was caught on undercover wiretaps discussing potential deals he could cut for jobs or government posts for himself in exchange for a Senate appointment.
Some wiretaps also captured Blagojevich talking about an offer from backers of former U.S. Rep. Jesse Jackson Jr. to raise up to $1.5 million in campaign cash for the then-governor if Jackson got the Senate nod. Jackson recently pleaded guilty to unrelated crimes.
The defense brief said Blagojevich, out of the earshot of jurors, advised Zagel that he was prepared to testify that negotiations over the Senate seat were well within the bounds of normal political “horse-trading” and that he believed he was acting lawfully.
Zagel, defense lawyers contended, barred Blagojevich from explaining that critical rationale once he took the stand. “Once Blagojevich began his testimony, the court changed its mind and prohibited this testimony, leaving him without a defense and looking foolish,” the appellate filing said.
It is a claim not without a measure of irony. At Blagojevich’s first trial, his lawyer Sam Adam Jr. sought to drum up sympathy for the former governor by painting him as foolish.