Blagojevich appeal complicated by testimony?

July 5, 2011

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(WBEZ/Wildeboer)
Former Illinois Gov. Rod Blagojevich

Within the next few weeks, attorneys for former Illinois Gov. Rod Blagojevich will be asking Judge James Zagel for a mistrial.  That's unlikely to succeed, which means they'll move on to a higher court, but Blagojevich's testimony could cause problems for an appeal.

Attorney Joel Bertocchi has spent much of his career specializing in appeals.  He says in order to win, you have to convince the appeals court of two things: that the trial judge made an error; and that the error changed the outcome of the case.

Bertocchi says, "A lot of judges on appeals courts are trial judges and they know what trial judges and trial lawyers know about criminal cases which is that when a defendant testifies, that's really thought of as being kind of the ballgame." 

So even if the appeals court finds Judge Zagel made an error, they're unlikely to grant an appeal.  They'd consider most judicial errors unimportant compared to the role Blagojevich's testimony played in the jury's decision.