Sam Adam Jr. is under a threat of jail from Judge James B. Zagel in the trial of former Illinois Governor Rod Blagojevich. Zagel has ruled that Adam cannot refer to witnesses whom the government conspicuously did not call to trial — even though prosecutors referred to non-appearing witnesses. Adam said he was prepared to go to jail over the issue.
Zagel has hit the defense with a series of tough rulings — some of which I disagree with. This one is particularly curious. While you cannot refer to a defendant’s failure to testify under a claim of privilege, I do not understand why a defendant cannot refer to the failure of other witnesses to appear.
Prosecutors referred to the failure of convicted fundraiser Antoin “Tony” Rezko to appear. Yet, Adam is barred from referring to other witnesses who were left out of the trial. Judges are increasingly micromanaging trials — barring defenses and references before the jury. I have long been a critic of this trend. There may be more to this ruling, but it seems highly problematic. Previously, Zagel curtailed testimony on President Obama’s knowledge and role in the case.
Blagojevich, 53, is facing $6 million in fines and a sentence of 415 years in prison. One would think he would be given a bit of latitude in his own defense.
Source: AP
If I ever needed an attorney, I would be most pleased to call one that would not mind doing time if he/she thought that this was an egregious error on the part of the trial court.
I can see his s tragedy. Because the trial is not concluded there is no automatic right to appeal. If the prosecutor made reference it seems that the attorney could ask for a stay of proceedings and then do an interlocutory appeal. But why, when you can make a record for an appeal that is bound to be reversed.
If in fact Blago’s attorney does mention the prosecution not calling witnesses, I would expect the judge to then give a remedial instruction to the jury, and in the end, the stunt would probably end up hurting Blago, not helping him.
What AY said. That and it makes the whole proceeding smell vaguely of Australian marsupials. Micromanaging from the bench is a bad idea aside from the fact it’s a bit Kafkaesque.
Many years ago an old trial lawyer told me that you can’t truly call yourself a trial lawyer unless you’ve spent at least one night in jail for contempt. That’s one piece of advice I’ve carefully ignored.
I agree with Prof. Turley on the micromanaging trend. I believe it is part of a larger trend toward reducing the power of the jury. I find it particularly insidious because the jury is the most important avenue for substantive citizen involvement in the judicial process.
Isn’t the judge just giving Blago grounds to appeal? I don’t get it. Makes no sense from the Judge’s standpoint.
Speaking as a jury member who has served on two criminal trial juries, I always paid close attention to the names stated as witnesses (if one’s notes aren’t complete. one can always ask for a read back) and if they were not called, we discussed that during deliberations.
9
He should tell the jury the truth; that he has been barred by the judge from presenting evidence or referring to witnesses that did not appear, and he believes that decision is preventing him from mounting the defense he wants, and he believes he is not allowed to give the names of the witnesses because just the names and the thought of what those people under oath might tell the jury would sway them. That while the prosecutor is allowed to name names to help his case, he is barred from naming names to help his client.
And because his speech (the defense attorney) is being restrained, the jury must err on the side of caution, that there is no way they can possibly be certain beyond a reasonable doubt if the defendant’s attorney is not even allowed to MENTION witnesses that refused to appear, were not forced to appear, and could have provided an exculpatory view. The jury must have reasonable doubt by definition, because they have not heard the whole truth, they have not heard both sides of the story. So how can they be certain of guilt? They cannot. The result of the ban is a cherry-picking of the facts the jury shall be allowed to hear, and intentionally or not, that has presented a biased story told by the prosecution and a gag order on the defendant that prevents a fair defense.
Yeah, if I were the government I wouldnt want anyone to know how deeply Obama has his hand up Gov. B’s ass either.
‘Judges are increasingly micromanaging trials ‘
that stinks…micromanagement rears it’s ugly head when someone has a vested or unconscious interest in outcome…P.U.
What color is the sky in your world Andy?
The judge is an ex-prosecutor. That is the problem here and in general.
frankdawg:
blue but in yours I imagine it is red becasue you see most everything through rose colored glasses. Go back sleep you bore me.
I would be wary of assessing the issue of “judges micromanaging trials” based on this case.
The 23rd hand take on the defense’s approach was that they were going into it with a “he so crazy” tone. “Blago is such a goofball that he isn’t capable of wheeling and dealing. He’s been on reality TV! He can’t even type! Look at his hair! This schmuck, a criminal mastermind? No way!”
Given that this approach isn’t panning out, I suspect that the defense is switching to a “me so crazy” style. “What? Did I trigger a mistrial, or create grounds for future appeals? Me? Ooops. I was just trying to do my best to represent my client. I had no idea I might cause other problems. Sorry.”
One comment I’ve heard about this specific issue of naming witnesses that weren’t called by the prosecution is that if these people were potentially going to provide exculpatory testimony, then why didn’t the defense call them?
I don’t have any context on which to judge this sort of stuff. Is it formerly standard practice to simply give the defense the leeway to say whatever whacked-out, baseless, illogical, disingenuous stuff they want in closing arguments?
Andy B. 1, July 27, 2010 at 12:44 pm
Yeah, if I were the government I wouldnt want anyone to know how deeply Obama has his hand up Gov. B’s ass either.
——————————————————
I don’t know about the government, but personally, out of the kindness of my heart, I too would not want the world to know about the actual extent to which Obama has connections with/control over the corrupt side of Chicago/Illinois politics.
If the tea party types found out that in reality, Obama kept as far away from the slimeballs in Chicago and Springfield as he could, and that he was actually associated with the reformers in Illinois politics, then they would have to endure a period of disappointment and psychic trauma. There would be great wailing and gnashing of teeth as reality reared it’s ugly head in the midst of their hallucinatory parallel universe. There would be smoke rising from their heads while the the reptilian, racist cores of their brains came up with a new pile of crap to tell each other about the president.
Plus, a few folks at the fringes of the tea party would realize that if Obama is a fairly clean politician in reality, then they might similarly realize that he isn’t the Islamo-Sectarian-Marxi-Fascist that they’ve been making him out to be. That in reality, he’s a blandly centrist “let’s all get along” problem solver.
See, I’m a kindly guy, and I wouldn’t want them to have to go through all that. So, yes, let’s not be specific about where Obama’s hand is in relation to Blago’s ass.
TomD:
you must live in frankdawg’s peridisio absurdo.
Let me see where to begin?
But I dont need to, you know exactly what was going on behind the curtain. Chicago politics is dirty, I doubt your boy kept clean basically coming from nowhere.
You know the old saying? “hang around shit and you are going to smell like shit”. Obama is too inept at governance to have orchestrated his rise to power all on his lonesome.
Andy B.,
I thank you for informing us of the information that you possess. I am sure you are spent for the round, so call it a night. Watch out for those vipers that have a habit of haunting your digs. Yes, one more drop of acid will hurt you.
If the defense doesn’t have to explain why Blago didn’t take the stand, deeming it unnecessary to their case, despite months of TV appearances insisting he would, why should the defense be able to attack the prosecution for not presenting witnesses it ultimately felt were not necessary?
Andy B.,
were you more focused on having something to say rather that focus on the substantive points that TomD was making? I bet you were the clown in class that asked the same question that was just asked previous to the one that was just answered. Just sayin……
that = to than
IMHO, The President is doing a GREAT job of governing. The problem with the country now is the same nightmare it’s suffered from for 30 years and which has brought the country to near collapse: Conservativism and conservatives.
yes conservatives have screwed up the country and so have democrats. I for one am a Marxist and would like to see one get elected. The republicans aren’t even good capitalists and the democrats are inept at implementing Marxism. They spout their pearls of wisdom about social justice but wouldn’t know a dialectic from a materialist. I cant decide who is less smart, an inept capitalist or an incompetent Marxist.
The democrats have 2 houses of congress and the presidency and yet they cant even get a decent health care bill passed. So I will have to say that incompetent Marxists are less bright.
Obama is a Marxist. Marxism: organized theft by government.
You know, this crap is getting old fast. The Tea Baggers and so called Marxists can claim “stuff” all day, but the facts are tough things for them to get around. Obama was not involved in Chicago politics. By the way, is Chicago politics any dirtier than NYC or Atlanta or LA or Dallas?
On the issue at hand, I have not had any significant experience in criminal law, but I would think that what is good for the goose is good for the gander when it comes to remarks by either the prosecution or the defense.
Question for the professor: How is it that Blago can be sentenced to 415 years; and, yet, Joseph Steinberg was recently released even though he brutally beat a 6 year old child, Lisa Steinberg, to death. I do not understand such inequities in punishments. Why are the lives of children worth so little?
Bonnie,
If it involves money or public trust, you are likely to go away for a long, long time. Just as if you robbed a bank.
Now people who abuse children which are then scarred for the rest of their lives unless it involves rape or murder receive relatively light sentences.
Its kind of funny most were concerned about a banks failure more so than the mental health of the people making up a majority of this country. Hence, people screw em unless they have money or screwed you over money.
I’ve known of Zagel, the judge, and watched his work for a LONG time… He WILL put this clown lawyer in PRISON and have burgers that evening and talk about screenplays… He is ONE tough judge. Fair, down the center and DOES NOT tolerate BS – AT ALL.
So, Sam…keep it up.. you;ll be in Cook County lock up so fast you will not know what hit you..Guaranteed…
I know I’m coming on this thread a bit late, but one of the commentors used the word Kafkaesque and I can’t help thinking that perfectly describes the final rebuttal when the prosecutor Schar told the jury that they must infer from the conversations between Blagojevich and others something which is not there. Or maybe I am thinking Orwellian.
Andy B is only “overwhelmingly” wrong, not “completely” wrong. I didn’t say that Obama was squeaky clean, rather that he limited his associations with the slime as much as possible. But the reality is that Obama’s allies and supporters are/were at the opposite end of the corruption spectrum from Blago (and Dick Mel, for that matter.)
When you’re smart enough to be the president of the Harvard Law Review, you’re operating at a whole different level of intelligence than pretty much everyone in Chicago/Illinois politics. It really isn’t surprising in the slightest that, with a little luck, an exceptionally smart, ambitious and charismatic person could rise quickly in Chicago/Illinois politics. Obama had lots of help, but not necessarily based on corruption. Anyone with half a brain (and that rules out lots of our politicians) would want to be on his coattails.
That said, I’d be willing to bet that Andy B. knows about as much about Chicago and Illinois politics as does any given Faux News viewer in a trailer in Alabama.
I live and work in the city, and I’m a fourth generation in-the-city Chicagoan. I’ve worked on anti-machine political campaigns. My grandfather ran for alderman as an anti-Daley/machine candidate, which was an exercise in futility to begin with. But it was all downhill when the FBI stepped in to out him as a “red” and a “commie sympathizer”, which he was. They even went so far as to post g-men to overtly “stake out” his home. Considering a large slice of the Chicago mafia lived in the surrounding blocks, and the FBI couldn’t be bothered with them, this was one hell of an act of intimidation.
So I know a little about Chicago politics, and I know a little about the hope to clean up politics from a leftist perspective. So far, Andy B’s total lack of specifics makes him sound like he doesn’t know squat.
I wonder if Andy B. would continue to sport Che Guevara t-shirts if he were to be “sent a message” by a couple of thick-necked feds in a dark alley.
TomDarch:
I dont like Che, more of a Trotsky man myself. Che, Castro, Mao, Stalin all blood thirsty hooligans.
yep, totally devoid of specifics on the original issue.