Experts: Blagojevich Makes a Good Call | WBEZ
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Eight Forty-Eight

Experts: Blagojevich Makes a Good Call

Since his arrest in December of 2008, Rod Blagojevich and his lawyers have said countless times that the former governor will testify. Sam Adam Jr. even made that claim in his opening statement to the jury. But now, that seems unlikely. In fact, they might not present a defense at all. Attorneys not affiliated with the case say that's probably a wise move.

When prosecutors finished presenting their case, Blagojevich sounded a familiar refrain in the lobby of the Dirksen federal building. This was just last week.

BLAGOJEVICH: It's been a long journey so far. For over a year and a half I've had to sit back and wait for an opportunity to begin the process of proving my innocence. Now the process to prove my innocence begins and I will prove my innocence and I will testify.

But as Robert Blagojevich testified, the former governor's attorneys were looking over jurors with an unusual intensity. And when Robert finished, they asked the judge for a sidebar. They had a private discussion at the side of the room and what they said couldn't be heard, but the government's lead prosecutor appeared to be seething. He shook his head with a look of disbelief.

Meanwhile, Blagojevich was shaking hands with his attorneys and slapping them on the back like it was all over, even though it was just the middle of the afternoon.

The judge returned to the bench and adjourned for the day saying court would resume at 9:30 Wednesday morning. That's when Blagojevich's team has to tell the judge how they'll proceed. Leaving court Tueasday, Sam Adam, Sr. said he doesn't want to put on a defense, but he and his son disagree.

ADAM: My factors are, the government hasn't proven all the things they said they'd prove. My son's factors are that he told them in opening statements he'd do it and we ought to fulfill our promise.

HALPRIN: My experience in long trials is I rather doubt what any juror really can remember to any great extent what was said in opening statement.

Rick Halprin is a defense attorney who's worked on large federal cases including the family secrets mob trial. He says jurors have been inundated with so much information over the last month that it's not a huge deal if defense attorneys renege on a promise made in the opening statement. Plus, he says the judge will instruct jurors that opening statements aren't evidence

Pat Cotter thinks it is a big deal.

COTTER: Well they made a promise to the jury that he would testify and it wasn't in passing. It was a very important part of their opening and in doing that you put your credibility on the line with the jury.

Cotter is a defense attorney and former prosecutor. He says, in their closing argument, Blagojevich's attorneys are going to give their interpretation of the evidence and then ask the jurors to believe them.

COTTER: It's very tough to do that if the jury is sitting there looking at you and saying, you're the same guy that promised us that Patti Blagojevich is going to testify, you promised us Rod Blagojevich was going to testify and it never happened. You made promises to us that you didn't keep.

And Cotter says this is a "self-inflicted wound that didn't have to happen." He says, Blagojevich should have kept things vague as to whether or not he would testify.

COTTER: What I have to presume is that he promised his lawyers he was going to testify and to then change his mind, if that's what happened, he really shot himself in the foot.

DEADY: Sometimes the cold reality of sitting through a six-week trial, I think they realize that I'm not playing in my ballpark anymore. This is the prosecutions turf and I'm going to have play by their rules and I'm not going to win that game.

Pat Deady is another former prosecutor turned defense attorney. He says Blagojevich would be making a good call by not testifying. There are a couple reasons. One, Deady says Blagojevich might not be a likeable witness.

DEADY: All the things that you see in the tapes would be magnified a hundred fold. If he is not restrained, if he is not deferential to the judge and the prosecution, if he appears to be just out there, on his own, I think he could come off way worse.

But there's a bigger problem with putting on a defense. Attorneys say it turns a reasonable doubt case into a credibility contest. If Blagojevich presents a defense, then jurors put his story next to the prosecutions story and compare them as equals. By not putting on a case, defense attorney's would hope to focus juror's attention solely on the holes they've poked in the government's case. And they hope one of those holes would leave a juror with a nagging question or two.

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