Chicago jurors who’ve already spent nine days deciding the fate of former Illinois Governor Rod Blagojevich won’t be back in court until Monday.
But even before the 11-woman, one-man jury began its deliberations, Blago’s lawyers had already filed an “omnibus motion for mistrial” - noting that it was “not an exhaustive list of every error and impropriety” that occurred in presiding U.S. District Court Judge James B. Zagel’s courtroom.
Blago is being tried on a 20-count indictment for corruption – including a scheme in which he allegedly tried to sell Barack Obama’s old Senate seat.
Sheldon Sorosky and his defense team accused a “biased” Zagel of “invad[ing] the province of the jury” when he “persistently prohibited defense counsel from eliciting facts from Blagojevich to present to the jury and other witnesses which the Court perceives as contrary to the government’s theory of the case.”
On May 31, the defense attorneys claim, Zagel ignored their opening statements that Blagojevich did not cut funding for Children’s Memorial Hospital, bizarrely suggesting “that “…he can explain that this was his mental state in November, that I was just -- I was really upset because I was getting a lot of bad publicity, if that’s the way you want to go, and consequently it was the bad publicity that caused me to cut Children’s Memorial, fine.”
By doing so, the judge engaged in inappropriate “fact finding” – and did it again the same day when he contradicted Blagojevich while he was still on the witness stand.
Under our constitutional system, a defendant is considered innocent until the government proves otherwise. So such interjections from the bench and repeated “references to the first trial” (over which Zagel also presided) prejudiced the jury and defeated the purpose of cross-examination, they claim.
“Not only is the jury the fact-finding party that should make those determinations, but the Court’s rulings indicate a closed mind regarding both the merits of the case and the credibility of Blagojevich?s testimony. This prevents Blagojevich from receiving a fair trial,” the motion stated.
Zagel’s refusal to allow Blagojevich to present relevant evidence to the jury, including key government recordings, is also problematic, “putting him in the impossible position of not having evidence in the record to establish a key aspect of his defense, but then because the evidence is not in the record, the Court finds that there is no support to argue the defense.”
Allowing the government to play 72 recordings to bolster prosecution witnesses’ testimony, but not giving the defense the same opportunity, “gives an improper appearance to the jury that only ‘bad’ recordings exist,” Team Blago pointed out.
“One example of this, among many, is the use of the government of the portion of the transcript not introduced by the defense on the 12-8-08 call between Blagojevich and [former deputy governor] Bob Greenlee in which Blagojevich references not making a Senate appointment until January 6th, the reported date of the sentencing of Tony Rezko.
“The government attempted to make much out of this issue – even playing the audio of the recording – but when the defense attempted to ask Blagojevich what he meant by his words on that call, the defense was largely prohibited. This was an improper and prejudicial set of rulings by the Court. Blagojevich?s testimony, if fully allowed, would have established his innocent intent and the reasoning behind these statements. “
One of the most explosive accusations in the motion for retrial is that the government “manipulated the system to have Blagojevich tried before this particular Court” - while making a “rare concession” to sever Republican fundraiser and Blago co-defendant William Cellini from the case. Cellini won’t go on trail until October.
Chicago Magazine quotes “one of the city’s prominent criminal defense attorneys” who thinks that the motion for mistrial has merit: “I think an appeal of this case would have legs, yes. Judge Zagel acted screwy. There’s not even a pretense of being fair. If the right judge gets this appeal, I think the conviction could be reversed. It’s hard to understand, too, because Zagel’s really one of the brightest judges on the bench. [Sustaining all those objections] is a problem.
“In this trial, you’ve either got a judge who is overreaching his authority or is not being fair, or, if you want to say that the defense was asking the wrong questions, you’ve got incompetent lawyers. Either way, Blagojevich deserves a new trial.”
So even when it’s over, it may not really be over.