The Tribune reports that Rod Blagojevich will testify in his own defense, according to “sources familiar with the former governor’s decision.” The Trib says Blago’s been working “in depth on his possible testimony over the weekend”, though the paper acknowledges no decision’s set in stone, and that Blagojevich could change his mind.
Maybe we’ll see the defendant under oath, but history suggests that any predictions on this subject from the Blagojevich camp should be taken with enough salt to cause severe hypertension.
Before and during the first trial, Blagojevich pronounced himself eager to take the stand and clear his name. He did not, and claimed the main lesson he learned from Trial #1 was “I talk too much.”
Predictions that Blago will take the stand floated in the media could well be a stratagem, a red herring to keep prosecutors off-balance.
There are good reasons for the defendant to have his say from the witness stand, and good reasons why it could backfire. Here’s a rundown of both.
WHY HE WILL:
Juries expect to hear from defendants. Blagojevich attorney Sheldon Sorosky acknowledged it last week: “Every jury feels— he must be guilty, or he’d testify.”
Judges give instructions to jurors not to hold it against a defendant if he doesn’t testify, but Sorosky clearly thinks jurors ignore those instruction. Traditional wisdom is that juries particularly expect to hear from those in authority— police officers and, arguably, ex-governors.
Defense lawyers claim this is a “case based on understanding”, and that prosecution witnesses have reasons— like plea deals— to give the most damning spin to Blagojevich’s words, claiming they thought he was urging them to set up illegal swaps of official actions in exchange for financial gains for the governor and his campaign.
Blagojevich, from the stand, could provide an alternate analysis of ambiguous words spoken on tape, and recall his version of un-taped conversations that witnesses have described.
For instance, former deputy governor Bradley Tusk told jurors that when he and Blagojevich discussed funding for a school in Rahm Emanuel’s congressional district, that Blago thundered: “Where’s my fundraiser?! Tell Rahm I want a fundraiser!” Tusk conceded, he’d never delivered the message to then-Cong. Emanuel, and the conversation was not recorded.
In a taped conversation about how to fill Illinois’ vacant US Senate seat, Blagojevich does say the words “it’s gotta be legal, obviously.” Prosecution witness Doug Scofield, a former Blagojevich aide, testified the ex-gov was only referring to the nuts and bolts of setting up a non-profit group that Blago could head, for a large salary, after leaving the governor’s office. Blagojevich has claimed outside court that he meant that in a far broader way. He could make his claim direct to jurors, on the stand.
Blagojevich could sum up and forcefully state positions his lawyers have been implying, piecemeal, with their cross-examinations. Defense lawyers have asked plenty of suggestive questions:
- “Didn’t Rod have a habit of saying explosive things and not really meaning them?”
- “You understood, at that point, the governor really wanted to appoint himself [to the Senate seat]?”
- “Really, all the governor wanted to do was raise campaign contributions. He didn’t want to intimidate anyone.” (yes, that was supposed to be a “question”)
Prosecution objections meant that those queries went unanswered. Jurors have been instructed that lawyers’ questions are not evidence, but Blagojevich, from the stand, could buttress those defense talking points.
Judge James Zagel came close to urging such a course when he spoke to defense lawyers about the benefits of putting on their own case instead of relying on argumentative or suggestive questions. “You can present a nice, logical defense,” the judge told Team Blago, “rather than having it come in, in pieces.”
Blago’s “need to connect”
Blagojevich is clearly itching to speak. He pleads his case daily, in general terms, to media cameras and courthouse spectators.
He’s a man whose political life has been built on connecting with voters (rather than, say, a fascination with or love for the workings of government), and has an almost obsessive need to make those connections. He never passes up an outstretched hand at the courthouse, and engages any bystander who offers a supportive word or two, often working the second-floor cafeteria like he’s back on the ballot.
From all appearances, he sincerely believes that if he just had a chance to talk to those jurors, he could convince them he may have been doing some “horse-trading” or frankly discussing his options, but certainly didn’t advance any illegal pay-for-play swaps.
WHY HE WON’T
Too much on tape
Simply put, there’s too much tape to argue with. How do you explain away Blagojevich’s clear statements of his goals when considering possible appointments to the Senate seat?
“My biggest —-ing need is to get myself and my family on sound financial footing,” he told his chief of staff, John Harris, in a wiretapped call. To wife Patti, also on tape: “What’s best for us, first and foremost.”
He even listed his priorities on another tape jurors have heard: “These three criterion [sic] in this order. Our legal situation. Our personal situation. My political situation. This decision like every other one needs to be based upon, on, on that.” The public interest doesn’t make the top three.
The ex-governor’s passionate interest in Cabinet posts or other jobs he might trade for the Senate seat, his frank assessment that “we were approached— pay to play” by supporters of Cong. Jesse Jackson, Jr., and his subsequent expression of interest in picking Jackson might also be hard to refute. He’d have to fall back on “we were just spitballing ideas and nothing ever came of it”.
Taking the stand means jurors may well hear the most repulsive Blagojevich rants, which— even if they’re not evidence of criminal intent— are hard to listen to.
It’s tough to say which is the worst. The one where he describes the Senate seat appintment as “f—ing golden” and says he’s “not giving it up for nothing”? Or is it the rant to aide Robert Greenlee:
“I f—ing busted my ass and pissed people off and gave your grandmother a free f—ing ride on the bus. Okay? I gave your f—ing baby a chance to have health care. I fought every one of those special interests out there, who make my life easier and better, because they want to raise taxes on you and I won’t, I, I I fight them and keep them from doing it. And what do I get for that? Only 13% of you all out there think I’m doing a good job. So f— all of you.”
Again, it’s not evidence of illegality, but it is so insulting that it could sway opinion in the jury box.
Not enough time?
The time frame laid out by defense lawyers would seem to rule out Blagojevich testimony. Lawyer Sorosky told the judge he figured he’d need three days to put on a case. That doesn’t seem like enough time for Blagojevich to rebut eleven days of prosecution evidence and testimony.
Also, Sorosky told reporters last week that, “if-if-if” Blagojevich were to take the stand, lawyers would need about a day’s worth of argument over which tapes or parts of tapes could be played during his testimony. They had a chance to conduct that sort of argument on Monday, but did not.
Blagojevich too chatty
Finally, while Blago is well-spoken and engaging, he’s not an ideal defense witness. His loquaciousness is a political gift, but a legal liability, too easily turned against him by a prosecution team that’s been preparing to cross-examine the ex-governor for years now.
Nick Bogert is covering the Blagojevich retrial for MSNBC.